S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5160
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                   February 20, 2013
                                      ___________
       Introduced by M. of A. CURRAN -- read once and referred to the Committee
         on Codes
       AN ACT to amend the penal law, in relation to carjacking
         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  article  161  to
    2  read as follows:
    3                                 ARTICLE 161
    4                                 CARJACKING
    5  SECTION 161.00 CARJACKING; DEFINED.
    6          161.05 CARJACKING IN THE THIRD DEGREE.
    7          161.10 CARJACKING IN THE SECOND DEGREE.
    8          161.15 CARJACKING IN THE FIRST DEGREE.
    9  S 161.00  CARJACKING; DEFINED.
   10    CARJACKING.    A  PERSON  COMMITS  CARJACKING  WHEN,  IN THE COURSE OF
   11  COMMITTING LARCENY OF A MOTOR VEHICLE FROM THE  PERSON  OR  PRESENCE  OF
   12  ANOTHER  PERSON,  HE OR SHE USES OR THREATENS THE IMMEDIATE USE OF PHYS-
   13  ICAL FORCE UPON ANOTHER PERSON FOR THE PURPOSE OF:
   14    1.  PREVENTING OR OVERCOMING RESISTANCE TO THE  TAKING  OF  THE  MOTOR
   15  VEHICLE OR TO THE RETENTION THEREOF IMMEDIATELY AFTER THE TAKING; OR
   16    2.    COMPELLING  THE OWNER OF SUCH MOTOR VEHICLE OR ANOTHER PERSON TO
   17  DELIVER UP THE MOTOR VEHICLE OR TO ENGAGE IN OTHER CONDUCT WHICH AIDS IN
   18  THE COMMISSION OF THE LARCENY.
   19  S 161.05  CARJACKING IN THE THIRD DEGREE.
   20    A PERSON IS GUILTY OF CARJACKING IN THE THIRD DEGREE WHEN  HE  OR  SHE
   21  FORCIBLY  STEALS  A MOTOR VEHICLE FROM THE PERSON OR PRESENCE OF ANOTHER
   22  PERSON.
   23    CARJACKING IN THE THIRD DEGREE IS A CLASS D FELONY.
   24  S 161.10  CARJACKING IN THE SECOND DEGREE.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08403-01-3
       A. 5160                             2
    1    A PERSON IS GUILTY OF CARJACKING IN THE SECOND DEGREE WHEN HE  OR  SHE
    2  FORCIBLY  STEALS  A MOTOR VEHICLE FROM THE PERSON OR PRESENCE OF ANOTHER
    3  PERSON AND WHEN:
    4    1.  HE OR SHE IS AIDED BY ANOTHER PERSON ACTUALLY PRESENT; OR
    5    2.    IN  THE  COURSE  OF  THE COMMISSION OF THE CRIME OR OF IMMEDIATE
    6  FLIGHT THEREFROM, HE OR SHE OR ANOTHER PARTICIPANT IN THE CRIME:
    7    (A)  CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT  IN
    8  THE CRIME; OR
    9    (B)    DISPLAYS WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN,
   10  MACHINE GUN OR OTHER FIREARM.
   11    CARJACKING IN THE SECOND DEGREE IS A CLASS C FELONY.
   12  S 161.15  CARJACKING IN THE FIRST DEGREE.
   13    A PERSON IS GUILTY OF CARJACKING IN THE FIRST DEGREE WHEN  HE  OR  SHE
   14  FORCIBLY  STEALS  A MOTOR VEHICLE FROM THE PERSON OR PRESENCE OF ANOTHER
   15  PERSON AND WHEN, IN THE COURSE OF THE COMMISSION  OF  THE  CRIME  OR  OF
   16  IMMEDIATE  FLIGHT  THEREFROM,  HE  OR  SHE OR ANOTHER PARTICIPANT IN THE
   17  CRIME:
   18    1.  CAUSES SERIOUS PHYSICAL INJURY TO ANY PERSON WHO IS NOT A  PARTIC-
   19  IPANT IN THE CRIME; OR
   20    2.  IS ARMED WITH A DEADLY WEAPON; OR
   21    3.  USES OR THREATENS THE IMMEDIATE USE OF A DANGEROUS INSTRUMENT; OR
   22    4.    DISPLAYS  WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN,
   23  MACHINE GUN OR OTHER FIREARM; EXCEPT THAT IN ANY PROSECUTION UNDER  THIS
   24  SUBDIVISION,  IT  IS  AN AFFIRMATIVE DEFENSE THAT SUCH PISTOL, REVOLVER,
   25  RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM WAS  NOT  A  LOADED  WEAPON
   26  FROM  WHICH  A SHOT, READILY CAPABLE OF PRODUCING DEATH OR OTHER SERIOUS
   27  PHYSICAL INJURY, COULD BE DISCHARGED.  NOTHING CONTAINED IN THIS  SUBDI-
   28  VISION  SHALL  CONSTITUTE  A DEFENSE TO A PROSECUTION FOR, OR PRECLUDE A
   29  CONVICTION OF,  CARJACKING IN THE SECOND DEGREE, CARJACKING IN THE THIRD
   30  DEGREE OR ANY OTHER CRIME.
   31    CARJACKING IN THE FIRST DEGREE IS A CLASS B FELONY.
   32    S 2. Subdivision 1 of section 70.02 of the penal  law,  as  separately
   33  amended  by  chapters  764 and 765 of the laws of 2005, paragraph (a) as
   34  amended by chapter 320 of the laws of 2006, paragraphs (b)  and  (c)  as
   35  amended by chapter 1 of the laws of 2013 and paragraph (d) as amended by
   36  chapter 7 of the laws of 2007, is amended to read as follows:
   37    1. Definition of a violent felony offense. A violent felony offense is
   38  a  class  B  violent felony offense, a class C violent felony offense, a
   39  class D violent felony offense, or a class  E  violent  felony  offense,
   40  defined as follows:
   41    (a)  Class  B  violent felony offenses: an attempt to commit the class
   42  A-I felonies of murder in  the  second  degree  as  defined  in  section
   43  125.25, kidnapping in the first degree as defined in section 135.25, and
   44  arson  in the first degree as defined in section 150.20; manslaughter in
   45  the first degree as defined in section 125.20,  aggravated  manslaughter
   46  in  the  first  degree  as  defined in section 125.22, rape in the first
   47  degree as defined in section 130.35, criminal sexual act  in  the  first
   48  degree  as  defined  in  section  130.50, aggravated sexual abuse in the
   49  first degree as defined in section  130.70,  course  of  sexual  conduct
   50  against  a  child  in  the  first  degree  as defined in section 130.75;
   51  assault in the first degree as defined in section 120.10, kidnapping  in
   52  the  second  degree  as defined in section 135.20, burglary in the first
   53  degree as defined in section 140.30,  arson  in  the  second  degree  as
   54  defined  in  section  150.15,  robbery in the first degree as defined in
   55  section 160.15, CARJACKING IN THE FIRST DEGREE  AS  DEFINED  IN  SECTION
   56  161.15,  incest in the first degree as defined in section 255.27, crimi-
       A. 5160                             3
    1  nal possession of a weapon in the first degree  as  defined  in  section
    2  265.04,  criminal  use  of  a  firearm in the first degree as defined in
    3  section 265.09, criminal sale of  a  firearm  in  the  first  degree  as
    4  defined in section 265.13, aggravated assault upon a police officer or a
    5  peace  officer  as  defined in section 120.11, gang assault in the first
    6  degree as defined in section 120.07, intimidating a victim or witness in
    7  the first degree as defined in section 215.17, hindering prosecution  of
    8  terrorism  in  the  first  degree as defined in section 490.35, criminal
    9  possession of a chemical weapon  or  biological  weapon  in  the  second
   10  degree  as  defined  in  section  490.40, and criminal use of a chemical
   11  weapon or biological weapon in the third degree as  defined  in  section
   12  490.47.
   13    (b)  Class  C violent felony offenses: an attempt to commit any of the
   14  class B felonies set forth in paragraph (a) of this subdivision;  aggra-
   15  vated criminally negligent homicide as defined in section 125.11, aggra-
   16  vated  manslaughter  in  the second degree as defined in section 125.21,
   17  aggravated sexual abuse in the  second  degree  as  defined  in  section
   18  130.67, assault on a peace officer, police officer, fireman or emergency
   19  medical services professional as defined in section 120.08, assault on a
   20  judge as defined in section 120.09, gang assault in the second degree as
   21  defined  in section 120.06, strangulation in the first degree as defined
   22  in section 121.13, burglary in the second degree as defined  in  section
   23  140.25,  robbery  in  the  second  degree  as defined in section 160.10,
   24  CARJACKING IN THE SECOND DEGREE AS DEFINED IN SECTION  161.10,  criminal
   25  possession  of  a  weapon  in  the  second  degree as defined in section
   26  265.03, criminal use of a firearm in the second  degree  as  defined  in
   27  section  265.08,  criminal  sale  of  a  firearm in the second degree as
   28  defined in section 265.12, criminal sale of a firearm with the aid of  a
   29  minor  as defined in section 265.14, aggravated criminal possession of a
   30  weapon as defined in section 265.19, soliciting or providing support for
   31  an act of terrorism in the first degree as defined  in  section  490.15,
   32  hindering  prosecution  of  terrorism in the second degree as defined in
   33  section 490.30, and criminal possession of a chemical weapon or  biolog-
   34  ical weapon in the third degree as defined in section 490.37.
   35    (c)  Class  D violent felony offenses: an attempt to commit any of the
   36  class C felonies set forth in paragraph (b); reckless assault of a child
   37  as defined in section 120.02, assault in the second degree as defined in
   38  section 120.05, menacing a police officer or peace officer as defined in
   39  section 120.18, stalking in the first degree, as defined in  subdivision
   40  one  of section 120.60, strangulation in the second degree as defined in
   41  section 121.12, rape in the second degree as defined in section  130.30,
   42  criminal  sexual  act in the second degree as defined in section 130.45,
   43  sexual abuse in the first degree as defined in section 130.65, course of
   44  sexual conduct against a child  in  the  second  degree  as  defined  in
   45  section  130.80,  aggravated sexual abuse in the third degree as defined
   46  in  section  130.66,  facilitating  a  sex  offense  with  a  controlled
   47  substance  as  defined in section 130.90, CARJACKING IN THE THIRD DEGREE
   48  AS DEFINED IN SECTION 161.05, criminal possession of  a  weapon  in  the
   49  third  degree as defined in subdivision five, six, seven, eight, nine or
   50  ten of section 265.02, criminal sale of a firearm in the third degree as
   51  defined in section 265.11, intimidating  a  victim  or  witness  in  the
   52  second  degree  as  defined  in  section 215.16, soliciting or providing
   53  support for an act of terrorism in  the  second  degree  as  defined  in
   54  section  490.10,  and  making a terroristic threat as defined in section
   55  490.20, falsely reporting an incident in the first degree as defined  in
   56  section 240.60, placing a false bomb or hazardous substance in the first
       A. 5160                             4
    1  degree  as  defined in section 240.62, placing a false bomb or hazardous
    2  substance in a sports stadium or arena, mass transportation facility  or
    3  enclosed  shopping  mall  as  defined  in section 240.63, and aggravated
    4  unpermitted use of indoor pyrotechnics in the first degree as defined in
    5  section 405.18.
    6    (d)  Class  E violent felony offenses: an attempt to commit any of the
    7  felonies of criminal possession of a  weapon  in  the  third  degree  as
    8  defined  in subdivision five, six, seven or eight of section 265.02 as a
    9  lesser included offense of that section as defined in section 220.20  of
   10  the  criminal  procedure  law,  persistent  sexual  abuse  as defined in
   11  section 130.53, aggravated sexual abuse in the fourth degree as  defined
   12  in  section 130.65-a, falsely reporting an incident in the second degree
   13  as defined in section 240.55 and  placing  a  false  bomb  or  hazardous
   14  substance in the second degree as defined in section 240.61.
   15    S 3. This act shall take effect on the first of November next succeed-
   16  ing  the  date  on  which it shall have become a law; provided, however,
   17  that the amendments to paragraphs  (b)  and  (c)  of  subdivision  1  of
   18  section  70.02  of  the  penal  law, as made by section two of this act,
   19  shall take effect on the same date and in the same manner as section  27
   20  of chapter 1 of the laws of 2013, takes effect.