Bill Text: NY A02276 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the penal law and the criminal procedure law, in relation to sentencing of persistent child predators
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Introduced - Dead) 2010-01-06 - referred to codes [A02276 Detail]
Download: New_York-2009-A02276-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2276
2009-2010 Regular Sessions
I N A S S E M B L Y
January 15, 2009
___________
Introduced by M. of A. McENENY, CANESTRARI, SCHIMMINGER, ENGLEBRIGHT,
KOON -- Multi-Sponsored by -- M. of A. ABBATE, DelMONTE, GREENE, PHEF-
FER, SWEENEY, TOWNS -- read once and referred to the Committee on
Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to sentencing of persistent child predators
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The penal law is amended by adding a new section 60.14 to
2 read as follows:
3 S 60.14 AUTHORIZED DISPOSITION; PERSISTENT CHILD PREDATOR.
4 1. CHILD PREDATOR OFFENSE. FOR THE PURPOSES OF THIS SECTION "CHILD
5 PREDATOR OFFENSE" SHALL UNLESS OTHERWISE INDICATED, MEAN ANY OF THE
6 FOLLOWING OFFENSES WHERE THE VICTIM OF SUCH OFFENSE IS A PERSON UNDER
7 THE AGE OF SEVENTEEN:
8 (A) HARASSMENT IN THE FIRST DEGREE AS DEFINED IN SECTION 240.25;
9 AGGRAVATED HARASSMENT IN THE SECOND DEGREE AS DEFINED IN SUBDIVISION
10 ONE, TWO OR FOUR OF SECTION 240.30; ENDANGERING THE WELFARE OF A CHILD
11 AS DEFINED IN SUBDIVISION ONE OF SECTION 260.10; SEXUAL MISCONDUCT AS
12 DEFINED IN SUBDIVISION ONE OR TWO OF SECTION 130.20; SEXUAL ABUSE IN THE
13 SECOND DEGREE AS DEFINED IN SECTION 130.60; SEXUAL ABUSE IN THE THIRD
14 DEGREE AS DEFINED IN SECTION 130.55; UNLAWFUL IMPRISONMENT IN THE SECOND
15 DEGREE AS DEFINED IN SECTION 135.05; OR MENACING IN THE SECOND DEGREE AS
16 DEFINED IN SUBDIVISION TWO OF SECTION 120.14; AND
17 (B) DISSEMINATING INDECENT MATERIAL TO MINORS IN THE SECOND DEGREE AS
18 DEFINED IN SECTION 235.21; DISSEMINATING INDECENT MATERIAL TO MINORS IN
19 THE FIRST DEGREE AS DEFINED IN SECTION 235.22; USE OF A CHILD IN A SEXU-
20 AL PERFORMANCE AS DEFINED IN SECTION 263.05; PROMOTING AN OBSCENE SEXUAL
21 PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.10; POSSESSING AN
22 OBSCENE SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.11;
23 PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.15;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00489-01-9
A. 2276 2
1 POSSESSING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.16;
2 RAPE IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION TWO OF SECTION
3 130.25; RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.30; RAPE IN
4 THE FIRST DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 130.35;
5 CRIMINAL SEXUAL ACT IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION TWO OF
6 SECTION 130.40; CRIMINAL SEXUAL ACT IN THE SECOND DEGREE AS DEFINED IN
7 SECTION 130.45; CRIMINAL SEXUAL ACT IN THE FIRST DEGREE AS DEFINED IN
8 SUBDIVISION THREE OF SECTION 130.50; SEXUAL ABUSE IN THE FIRST DEGREE AS
9 DEFINED IN SUBDIVISION THREE OF SECTION 130.65; AGGRAVATED SEXUAL ABUSE
10 IN THE THIRD DEGREE AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF
11 SECTION 130.66; AGGRAVATED SEXUAL ABUSE IN THE SECOND DEGREE AS DEFINED
12 IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 130.67; AGGRAVATED SEXUAL
13 ABUSE IN THE FIRST DEGREE AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE
14 OF SECTION 130.70; COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST
15 DEGREE AS DEFINED IN SECTION 130.75; COURSE OF SEXUAL CONDUCT AGAINST A
16 CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 130.80; UNLAWFUL IMPRI-
17 SONMENT IN THE FIRST DEGREE AS DEFINED IN SECTION 135.10; KIDNAPPING IN
18 THE SECOND DEGREE AS DEFINED IN SECTION 135.20; KIDNAPPING IN THE FIRST
19 DEGREE AS DEFINED IN SECTION 135.25 OR ANY ATTEMPT TO COMMIT AN OFFENSE
20 ENUMERATED IN THIS PARAGRAPH.
21 2. DEFINITION OF A PERSISTENT CHILD PREDATOR. (A) A PERSISTENT CHILD
22 PREDATOR IS A PERSON WHO STANDS CONVICTED OF A CHILD PREDATOR OFFENSE AS
23 ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION AFTER
24 HAVING PREVIOUSLY BEEN SUBJECTED TO TWO OR MORE PREDICATE CHILD PREDATOR
25 CONVICTIONS AS DEFINED IN PARAGRAPH (B) OF THIS SUBDIVISION.
26 (B) FOR THE PURPOSE OF DETERMINING WHETHER A PRIOR CONVICTION IS A
27 PREDICATE CHILD PREDATOR CONVICTION THE FOLLOWING CRITERIA SHALL APPLY:
28 (I) THE CONVICTION MUST HAVE BEEN IN THIS STATE OF A CHILD PREDATOR
29 OFFENSE AS DEFINED IN PARAGRAPH (A) OR (B) OF SUBDIVISION ONE OF THIS
30 SECTION, OR IN ANY OTHER JURISDICTION OF AN OFFENSE WHICH INCLUDES ALL
31 OF THE ESSENTIAL ELEMENTS OF ANY SUCH CHILD PREDATOR OFFENSE;
32 (II) SENTENCE UPON SUCH PRIOR CONVICTION MUST HAVE BEEN IMPOSED BEFORE
33 COMMISSION OF THE PRESENT CHILD PREDATOR OFFENSE;
34 (III) SUSPENDED SENTENCE, SUSPENDED EXECUTION OF SENTENCE, A SENTENCE
35 OF PROBATION, A SENTENCE OF CONDITIONAL DISCHARGE OR OF UNCONDITIONAL
36 DISCHARGE, AND A SENTENCE OF CERTIFICATION TO THE CARE AND CUSTODY OF
37 THE DIVISION OF SUBSTANCE ABUSE SERVICES, SHALL BE DEEMED TO BE A
38 SENTENCE;
39 (IV) EXCEPT AS PROVIDED IN SUBPARAGRAPH (V) OF THIS PARAGRAPH,
40 SENTENCE MUST HAVE BEEN IMPOSED NOT MORE THAN SEVEN YEARS BEFORE COMMIS-
41 SION OF THE CHILD PREDATOR OFFENSE OF WHICH THE DEFENDANT PRESENTLY
42 STANDS CONVICTED;
43 (V) IN CALCULATING THE SEVEN YEAR PERIOD UNDER SUBPARAGRAPH (IV) OF
44 THIS PARAGRAPH, ANY PERIOD OF TIME DURING WHICH THE PERSON WAS INCARCER-
45 ATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF THE PREVIOUS CHILD
46 PREDATOR OFFENSE AND THE TIME OF COMMISSION OF THE PRESENT CHILD PREDA-
47 TOR OFFENSE SHALL BE EXCLUDED AND SUCH SEVEN YEAR PERIOD SHALL BE
48 EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME SERVED UNDER SUCH
49 INCARCERATION;
50 (VI) AN OFFENSE FOR WHICH THE DEFENDANT HAS BEEN PARDONED ON THE
51 GROUND OF INNOCENCE SHALL NOT BE DEEMED A PREDICATE CHILD PREDATOR
52 CONVICTION; AND
53 (VII) COMMISSION OF THE SECOND PRIOR CHILD PREDATOR OFFENSE SHALL HAVE
54 OCCURRED AFTER THE IMPOSITION OF SENTENCE ON THE FIRST PRIOR CHILD PRED-
55 ATOR CONVICTION.
A. 2276 3
1 3. AUTHORIZED SENTENCE. WHEN THE COURT HAS FOUND, PURSUANT TO THE
2 PROVISIONS OF SECTION 400.13 OF THE CRIMINAL PROCEDURE LAW THAT (A) A
3 PERSON IS A PERSISTENT CHILD PREDATOR AS DEFINED IN SUBDIVISION TWO OF
4 THIS SECTION, AND (B) IMPOSITION OF A SENTENCE AUTHORIZED FOR A CLASS E
5 FELONY IS NECESSARY TO PROTECT THE SAFETY AND SECURITY OF SOCIETY, THE
6 COURT, IN LIEU OF IMPOSING A SENTENCE OTHERWISE AUTHORIZED FOR THE CRIME
7 ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION OF WHICH
8 SUCH PERSON PRESENTLY STANDS CONVICTED, SHALL IMPOSE A SENTENCE AUTHOR-
9 IZED FOR A CLASS E FELONY.
10 S 2. The criminal procedure law is amended by adding a new section
11 400.13 to read as follows:
12 S 400.13 PROCEDURE FOR DETERMINING WHETHER DEFENDANT SHOULD BE SENTENCED
13 AS A PERSISTENT CHILD PREDATOR.
14 1. APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE PROCEDURE
15 THAT MUST BE FOLLOWED IN ORDER TO IMPOSE THE PERSISTENT CHILD PREDATOR
16 SENTENCE AUTHORIZED BY SUBDIVISION THREE OF SECTION 60.14 OF THE PENAL
17 LAW. SUCH SENTENCE MAY NOT BE IMPOSED UNLESS, BASED UPON EVIDENCE IN THE
18 RECORD OF A HEARING HELD PURSUANT TO THIS SECTION, THE COURT HAS FOUND
19 THAT THE DEFENDANT IS A PERSISTENT CHILD PREDATOR AS DEFINED IN SUBDIVI-
20 SION TWO OF SECTION 60.14 OF THE PENAL LAW AND THAT THE IMPOSITION OF
21 SUCH SENTENCE IS NECESSARY TO PROTECT THE SAFETY AND SECURITY OF SOCIE-
22 TY.
23 2. AUTHORIZATION FOR HEARING. WHEN INFORMATION AVAILABLE TO THE COURT
24 OR TO THE PEOPLE PRIOR TO SENTENCING FOR A CHILD PREDATOR OFFENSE AS
25 DEFINED IN PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 60.14 OF THE
26 PENAL LAW INDICATES THAT THE DEFENDANT MAY BE A PERSISTENT CHILD PREDA-
27 TOR AS DEFINED IN SUBDIVISION TWO OF SUCH SECTION 60.14 THE COURT SHALL
28 ORDER A HEARING TO DETERMINE WHETHER THE DEFENDANT IS IN FACT A PERSIST-
29 ENT CHILD PREDATOR AND SHOULD BE SENTENCED IN ACCORDANCE WITH THE
30 PROVISIONS OF SUBDIVISION THREE OF SECTION 60.14 OF THE PENAL LAW.
31 3. ORDER DIRECTING A HEARING. AN ORDER DIRECTING A HEARING TO DETER-
32 MINE WHETHER THE DEFENDANT SHOULD BE SENTENCED AS A PERSISTENT CHILD
33 PREDATOR MUST SPECIFY A DATE FOR THE HEARING NOT LESS THAN FOURTEEN DAYS
34 FROM THE DATE THE ORDER IS FILED. THE COURT MUST ANNEX TO AND FILE WITH
35 THE ORDER A STATEMENT, TO BE PREPARED BY THE PEOPLE, SETTING FORTH THE
36 FOLLOWING:
37 (A) THE DATES AND PLACES OF THE PREVIOUS CONVICTIONS WHICH RENDER THE
38 DEFENDANT A PERSISTENT CHILD PREDATOR AS DEFINED IN SUBDIVISION TWO OF
39 SECTION 60.14 OF THE PENAL LAW; AND
40 (B) THE FACTOR OR FACTORS INVOLVED IN THE COMMISSION OF THE INSTANT
41 OFFENSE AND IN THE DEFENDANT'S BACKGROUND AND PRIOR CRIMINAL HISTORY
42 WHICH THE PEOPLE DEEM RELEVANT FOR THE PURPOSE OF SENTENCING THE DEFEND-
43 ANT AS A PERSISTENT CHILD PREDATOR PURSUANT TO SUBDIVISION THREE OF
44 SECTION 60.14 OF THE PENAL LAW.
45 4. NOTICE OF HEARING. UPON RECEIPT OF THE ORDER THE CLERK OF THE COURT
46 MUST IMMEDIATELY PROVIDE A NOTICE OF HEARING TO THE DEFENDANT, HIS COUN-
47 SEL AND THE DISTRICT ATTORNEY. SUCH NOTICE MUST SPECIFY THE TIME AND
48 PLACE OF THE HEARING AND THAT THE PURPOSE OF THE HEARING IS TO DETERMINE
49 WHETHER OR NOT THE DEFENDANT SHOULD BE SENTENCED AS A PERSISTENT CHILD
50 PREDATOR. EACH NOTICE REQUIRED TO BE SENT HEREUNDER MUST BE ACCOMPANIED
51 BY A COPY OF THE STATEMENT FILED BY THE PEOPLE PURSUANT TO SUBDIVISION
52 THREE OF THIS SECTION.
53 5. BURDEN AND STANDARD OF PROOF; EVIDENCE. UPON ANY HEARING HELD
54 PURSUANT TO THIS SECTION THE BURDEN OF PROOF IS UPON THE PEOPLE TO SHOW,
55 BY A PREPONDERANCE OF THE EVIDENCE, THAT SENTENCING THE DEFENDANT AS A
56 PERSISTENT CHILD PREDATOR IS NECESSARY TO PROTECT THE SAFETY AND SECURI-
A. 2276 4
1 TY OF SOCIETY, PROVIDED, HOWEVER THAT A FINDING THAT THE DEFENDANT IS A
2 PERSISTENT CHILD PREDATOR, AS DEFINED IN SUBDIVISION TWO OF SECTION
3 60.14 OF THE PENAL LAW, MUST BE BASED UPON PROOF BEYOND A REASONABLE
4 DOUBT BY EVIDENCE ADMISSIBLE UNDER THE RULES APPLICABLE TO A TRIAL OF
5 THE ISSUE OF GUILT.
6 6. CONSTITUTIONALITY OF PRIOR CONVICTIONS. A PREVIOUS CONVICTION IN
7 THIS OR ANY OTHER JURISDICTION WHICH WAS OBTAINED IN VIOLATION OF THE
8 RIGHTS OF THE DEFENDANT UNDER THE APPLICABLE PROVISIONS OF THE CONSTITU-
9 TION OF THE UNITED STATES MUST NOT BE COUNTED IN DETERMINING WHETHER THE
10 DEFENDANT IS A PERSISTENT CHILD PREDATOR. THE DEFENDANT MAY, AT ANY TIME
11 DURING THE COURSE OF THE HEARING HEREUNDER CONTROVERT AN ALLEGATION WITH
12 RESPECT TO SUCH CONVICTION IN THE STATEMENT OF THE PEOPLE ON THE GROUNDS
13 THAT THE CONVICTION WAS UNCONSTITUTIONALLY OBTAINED. FAILURE TO CHAL-
14 LENGE THE PREVIOUS CONVICTION IN THE MANNER PROVIDED HEREIN CONSTITUTES
15 A WAIVER ON THE PART OF THE DEFENDANT OF ANY ALLEGATION OF UNCONSTITU-
16 TIONALITY UNLESS GOOD CAUSE BE SHOWN FOR SUCH FAILURE TO MAKE TIMELY
17 CHALLENGE.
18 7. PRELIMINARY EXAMINATION. AT THE COMMENCEMENT OF THE HEARING THE
19 COURT MUST ASK THE DEFENDANT WHETHER HE WISHES TO CONTROVERT ANY ALLEGA-
20 TION MADE IN THE STATEMENT PREPARED BY THE PEOPLE. UNCONTROVERTED ALLE-
21 GATIONS IN THE STATEMENT OF THE PEOPLE SHALL BE DEEMED TO HAVE BEEN
22 ADMITTED BY THE DEFENDANT.
23 8. MANNER OF CONDUCTING HEARING. A HEARING PURSUANT TO THIS SECTION
24 SHALL BE A BIFURCATED HEARING AND SHALL BE BEFORE THE COURT WITHOUT A
25 JURY. AT THE CONCLUSION OF THE FIRST PART OF THE HEARING, THE COURT MUST
26 MAKE A FINDING AS TO WHETHER OR NOT THE DEFENDANT IS A PERSISTENT CHILD
27 PREDATOR AS DEFINED IN SUBDIVISION TWO OF SECTION 60.14 OF THE PENAL
28 LAW. IF THE COURT FINDS THAT THE DEFENDANT IS A PERSISTENT CHILD PREDA-
29 TOR AS SO DEFINED, THE COURT SHALL PROCEED TO DETERMINE, IN ACCORDANCE
30 WITH THE PROVISIONS OF THIS SECTION AND SECTION 60.14 OF THE PENAL LAW,
31 WHETHER THE DEFENDANT SHALL BE SENTENCED AS A PERSISTENT CHILD PREDATOR.
32 9. TERMINATION OF HEARING. AT ANY TIME DURING THE PENDENCY OF A HEAR-
33 ING PURSUANT TO THIS SECTION, THE COURT MAY, IN ITS DISCRETION, TERMI-
34 NATE THE HEARING WITHOUT MAKING ANY FINDING. IN SUCH CASE, UNLESS THE
35 COURT RECOMMENCES THE PROCEEDINGS AND MAKES THE NECESSARY FINDINGS, THE
36 DEFENDANT MAY NOT BE SENTENCED AS A PERSISTENT CHILD PREDATOR.
37 S 3. Section 70.06 of the penal law is amended by adding a new subdi-
38 vision 8 to read as follows:
39 8. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A
40 PREVIOUS CONVICTION AND SENTENCE AS A PERSISTENT CHILD PREDATOR PURSUANT
41 TO SECTION 60.14 OF THIS CHAPTER SHALL CONSTITUTE A PRIOR FELONY
42 CONVICTION FOR PURPOSES OF SUBPARAGRAPH (I) OF PARAGRAPH (B) OF SUBDIVI-
43 SION ONE OF THIS SECTION.
44 S 4. Subdivision 1 of section 70.10 of the penal law is amended by
45 adding a new paragraph (d) to read as follows:
46 (D) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A
47 PREVIOUS CONVICTION AND SENTENCE AS A PERSISTENT CHILD PREDATOR PURSUANT
48 TO SECTION 60.14 OF THIS CHAPTER SHALL, SUBJECT TO THE CRITERIA SET
49 FORTH IN PARAGRAPHS (B) AND (C) OF THIS SUBDIVISION, CONSTITUTE A PREVI-
50 OUS FELONY CONVICTION FOR PURPOSES OF PARAGRAPH (A) OF THIS SUBDIVISION.
51 S 5. Section 65.10 of the penal law is amended by adding a new subdi-
52 vision 3-a to read as follows:
53 3-A. CONDITIONS FOR CERTAIN OFFENDERS. WHEN IMPOSING A SENTENCE OF
54 PROBATION FOR A PERSON CONVICTED OF A CHILD PREDATOR OFFENSE THE COURT
55 SHALL REQUIRE, IN ADDITION TO ANY OTHER CONDITIONS IMPOSED PURSUANT TO
56 SUBDIVISION TWO, THREE OR FOUR OF THIS SECTION, THAT SUCH PERSON REPORT
A. 2276 5
1 TO A PROBATION OFFICER A MINIMUM OF THREE DAYS PER WEEK AND HAVE AT
2 LEAST FOUR ADDITIONAL CONTACTS PER WEEK. FOR THE PURPOSES OF THIS SUBDI-
3 VISION A CHILD PREDATOR OFFENSE SHALL HAVE THE SAME MEANING AS SET FORTH
4 IN SUBDIVISION ONE OF SECTION 60.14 OF THIS CHAPTER.
5 S 6. Subdivision 4 of section 60.01 of the penal law, as amended by
6 chapter 548 of the laws of 1984, is amended to read as follows:
7 4. In any case where a person has been sentenced to a period of
8 probation imposed pursuant to section 65.00 of this chapter, if the part
9 of the sentence that provides for probation is revoked, the court must
10 sentence such person to imprisonment or to the sentence of imprisonment
11 and probation as provided for in paragraph (d) of subdivision two of
12 this section, PROVIDED, HOWEVER, THAT WHERE A SENTENCE OF PROBATION ON A
13 CONVICTION FOR A CHILD PREDATOR OFFENSE IS REVOKED, THE COURT MAY NOT
14 IMPOSE A DEFINITE SENTENCE OF IMPRISONMENT UNLESS IT IMPOSES SUCH DEFI-
15 NITE SENTENCE AS PART OF A SENTENCE OF IMPRISONMENT AND PROBATION IN
16 ACCORDANCE WITH SUBDIVISION FOUR OF SECTION 65.00 OF THIS CHAPTER.
17 S 7. Subdivisions 3 and 4 of section 65.00 of the penal law, as
18 amended by chapter 264 of the laws of 2003, subparagraph (ii) of para-
19 graph (a) of subdivision 3 as amended by chapter 738 of the laws of
20 2004, paragraph (c) of subdivision 3 as amended by chapter 568 of the
21 laws of 2004 and the closing paragraph of subdivision 3 as amended by
22 chapter 320 of the laws of 2006, are amended and a new subdivision 5 is
23 added to read as follows:
24 3. Periods of probation. Unless terminated sooner in accordance with
25 the criminal procedure law, the period of probation shall be as follows:
26 (a) (i) For a felony, other than a class A-II felony or a class B
27 felony defined in article two hundred twenty of this chapter or a sexual
28 assault, the period of probation shall be five years;
29 (ii) For a class A-II felony controlled substance offender as defined
30 in paragraph (a) of subdivision one of section 70.71 of this chapter or
31 a class B second felony drug offender as defined in paragraph (b) of
32 subdivision one of section 70.70 of this chapter, the period of
33 probation shall be life, and for a class B felony drug offender as
34 defined in paragraph (a) of subdivision one of section 70.70 of this
35 chapter, the period of probation shall be twenty-five years;
36 (iii) For a felony sexual assault, the period of probation shall be
37 ten years.
38 (b) (i) For a class A misdemeanor, other than a sexual assault AND
39 EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVISION THREE OF SECTION 60.14 OF
40 THIS CHAPTER, the period of probation shall be three years;
41 (ii) For a class A misdemeanor sexual assault, the period of probation
42 shall be six years.
43 (c) For a class B misdemeanor, the period of probation shall, AND
44 EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVISION THREE OF SECTION 60.14 OF
45 THIS CHAPTER, be one year, except the period of probation shall be no
46 less than one year and no more than three years for the class B misde-
47 meanor of public lewdness as defined in section 245.00 of this chapter;
48 (d) For an unclassified misdemeanor, the period of probation shall be
49 three years if the authorized sentence of imprisonment is in excess of
50 three months, otherwise the period of probation shall be one year.
51 For the purposes of this section, the term "sexual assault" means an
52 offense defined in article one hundred thirty or two hundred sixty-
53 three, or in section 255.25, 255.26 or 255.27 of this chapter, or an
54 attempt to commit any of the foregoing offenses.
55 4. [In] EXCEPT AS PROVIDED IN SUBDIVISION FIVE OF THIS SECTION, IN any
56 case where a court pursuant to its authority under subdivision four of
A. 2276 6
1 section 60.01 of this chapter revokes probation and sentences such
2 person to imprisonment and probation, as provided in paragraph (d) of
3 subdivision two of section 60.01 of this chapter, the period of
4 probation shall be the remaining period of the original probation
5 sentence or one year whichever is greater.
6 5. IN ANY CASE WHERE A SENTENCE OF PROBATION IS IMPOSED ON A
7 CONVICTION FOR A CHILD PREDATOR OFFENSE AS DEFINED IN SECTION 60.14 OF
8 THIS CHAPTER AND A COURT, PURSUANT TO ITS AUTHORITY UNDER SUBDIVISION
9 FOUR OF SECTION 60.01 OF THIS CHAPTER REVOKES SUCH PROBATION AND
10 SENTENCES SUCH PERSON TO IMPRISONMENT AND PROBATION, THE PERIOD OF
11 IMPRISONMENT SHALL BE SIX MONTHS FOR A CLASS A MISDEMEANOR AND ONE YEAR
12 FOR A FELONY, WHICH SHALL INCLUDE ANY CLASS E FELONY CHILD PREDATOR
13 SENTENCE IMPOSED PURSUANT TO SUBDIVISION THREE OF SECTION 60.14 OF THIS
14 CHAPTER, AND THE PERIOD OF PROBATION SHALL BE THE REMAINING PERIOD OF
15 THE ORIGINAL PROBATION SENTENCE OR ONE YEAR WHICHEVER IS GREATER.
16 S 8. Subdivisions 1 and 2 of section 70.15 of the penal law, subdivi-
17 sion 1 as amended by chapter 291 of the laws of 1993, are amended to
18 read as follows:
19 1. Class A misdemeanor. [A] EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVI-
20 SION THREE OF SECTION 60.14 OF THIS CHAPTER, A sentence of imprisonment
21 for a class A misdemeanor shall be a definite sentence. When such a
22 sentence is imposed the term shall be fixed by the court, and shall not
23 exceed one year; provided, however, that a sentence of imprisonment
24 imposed upon a conviction of criminal possession of a weapon in the
25 fourth degree as defined in subdivision one of section 265.01 must be
26 for a period of no less than one year when the conviction was the result
27 of a plea of guilty entered in satisfaction of an indictment or any
28 count thereof charging the defendant with the class D violent felony
29 offense of criminal possession of a weapon in the third degree as
30 defined in subdivision four of section 265.02, except that the court may
31 impose any other sentence authorized by law upon a person who has not
32 been previously convicted in the five years immediately preceding the
33 commission of the offense for a felony or a class A misdemeanor defined
34 in this chapter, if the court having regard to the nature and circum-
35 stances of the crime and to the history and character of the defendant,
36 finds on the record that such sentence would be unduly harsh and that
37 the alternative sentence would be consistent with public safety and does
38 not deprecate the seriousness of the crime.
39 2. Class B misdemeanor. [A] EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVI-
40 SION THREE OF SECTION 60.14 OF THIS CHAPTER, A sentence of imprisonment
41 for a class B misdemeanor shall be a definite sentence. When such a
42 sentence is imposed the term shall be fixed by the court, and shall not
43 exceed three months.
44 S 9. This act shall take effect on the first of November next succeed-
45 ing the date on which it shall have become a law.
