Bill Text: NY S02500 | 2017-2018 | General Assembly | Amended
Bill Title: Relates to certain assault crimes wherein a person is aided or encouraged to strike the victim in the head and cause unconsciousness.
Spectrum: Partisan Bill (Republican 3-0)
Status: (Introduced - Dead) 2018-06-20 - COMMITTED TO RULES [S02500 Detail]
Download: New_York-2017-S02500-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2500--A 2017-2018 Regular Sessions IN SENATE January 13, 2017 ___________ Introduced by Sens. TEDISCO, BOYLE, MARCHIONE -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law and the criminal procedure law, in relation to assault or aiding or encouraging assault The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 4 of section 120.10 of the penal law, as 2 amended by chapter 791 of the laws of 1967, is amended and a new subdi- 3 vision 5 is added to read as follows: 4 4. In the course of and in furtherance of the commission or attempted 5 commission of a felony or of immediate flight therefrom, he or she, or 6 another participant if there be any, causes serious physical injury to a 7 person other than one of the participants[.]; or 8 5. Being fourteen years of age or more and with the intent to cause an 9 unsuspecting person to be rendered unconscious, he or she strikes such 10 person on the head, or he or she aids or encourages another participant 11 to strike such person on the head, causing physical injury or serious 12 physical injury to such person. 13 § 2. Section 120.07 of the penal law, as added by chapter 647 of the 14 laws of 1996, is amended to read as follows: 15 § 120.07 Gang assault in the first degree. 16 A person is guilty of gang assault in the first degree when[,]: 17 1. with intent to cause serious physical injury to another person and 18 when aided by two or more other persons actually present, he causes 19 serious physical injury to such person or to a third person[.]; or 20 2. being fourteen years old or more and with the intent to cause an 21 unsuspecting person to be rendered unconscious, and when aided by or 22 encouraged by two or more other persons actually present, he or she EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06384-02-8S. 2500--A 2 1 strikes such person on the head, or he or she aids or encourages another 2 participant to strike such person on the head, causing physical injury 3 or serious physical injury to such person. 4 Gang assault in the first degree is a class B felony. 5 § 3. Subdivision 4 of section 125.20 of the penal law, as added by 6 chapter 477 of the laws of 1990, is amended and a new subdivision 5 is 7 added to read as follows: 8 4. Being eighteen years old or more and with intent to cause physical 9 injury to a person less than eleven years old, the defendant recklessly 10 engages in conduct which creates a grave risk of serious physical injury 11 to such person and thereby causes the death of such person[.]; or 12 5. Being fourteen years of age or more and with the intent to cause an 13 unsuspecting person to be rendered unconscious, he or she strikes such 14 person on the head, or he or she aids or encourages another participant 15 to strike such person on the head, causing the death of such person. 16 § 4. Paragraph (a) of subdivision 2 of section 720.10 of the criminal 17 procedure law, as amended by chapter 316 of the laws of 2006, is amended 18 to read as follows: 19 (a) the conviction to be replaced by a youthful offender finding is 20 for (i) a class A-I or class A-II felony, or (ii) an armed felony as 21 defined in subdivision forty-one of section 1.20 of this chapter, except 22 as provided in subdivision three of this section, or (iii) rape in the 23 first degree, criminal sexual act in the first degree, or aggravated 24 sexual abuse, except as provided in subdivision three of this section, 25 or (iv) assault in the first degree as defined in subdivision five of 26 section 120.10 of the penal law, or (v) gang assault in the first degree 27 as defined in subdivision two of section 120.07 of the penal law, or 28 (vi) manslaughter in the first degree as defined in subdivision five of 29 section 125.20 of the penal law, or 30 § 5. Subdivision 18 of section 10.00 of the penal law, as amended by 31 chapter 7 of the laws of 2007, is amended to read as follows: 32 18. "Juvenile offender" means (1) a person thirteen years old who is 33 criminally responsible for acts constituting murder in the second degree 34 as defined in subdivisions one and two of section 125.25 of this chapter 35 or such conduct as a sexually motivated felony, where authorized pursu- 36 ant to section 130.91 of [the penal law] this chapter; and 37 (2) a person fourteen or fifteen years old who is criminally responsi- 38 ble for acts constituting the crimes defined in subdivisions one and two 39 of section 125.25 (murder in the second degree) and in subdivision three 40 of such section provided that the underlying crime for the murder charge 41 is one for which such person is criminally responsible; section 135.25 42 (kidnapping in the first degree); 150.20 (arson in the first degree); 43 subdivisions one [and], two and five of section 120.10 (assault in the 44 first degree); subdivision two of section 120.07 (gang assault in the 45 first degree); 125.20 (manslaughter in the first degree); subdivisions 46 one and two of section 130.35 (rape in the first degree); subdivisions 47 one and two of section 130.50 (criminal sexual act in the first degree); 48 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary 49 in the first degree); subdivision one of section 140.25 (burglary in the 50 second degree); 150.15 (arson in the second degree); 160.15 (robbery in 51 the first degree); subdivision two of section 160.10 (robbery in the 52 second degree) of this chapter; or section 265.03 of this chapter, where 53 such machine gun or such firearm is possessed on school grounds, as that 54 phrase is defined in subdivision fourteen of section 220.00 of this 55 chapter; or defined in this chapter as an attempt to commit murder in 56 the second degree or kidnapping in the first degree, or such conduct asS. 2500--A 3 1 a sexually motivated felony, where authorized pursuant to section 130.91 2 of [the penal law] this chapter. 3 § 6. Section 70.05 of the penal law is amended by adding a new subdi- 4 vision 4 to read as follows: 5 4. Notwithstanding any other provision of law to the contrary, where a 6 juvenile offender is convicted of assault in the first degree as defined 7 in subdivision five of section 120.10; gang assault in the first degree 8 as defined in subdivision two of section 120.07; or manslaughter in the 9 first degree as defined in subdivision five of section 125.20 of this 10 chapter, such offender shall be sentenced pursuant to section 70.02 of 11 this article; provided, that the provisions of this subdivision shall 12 only apply to juvenile offenders over thirteen years old. 13 § 7. Paragraph (f) of subdivision 1 of section 70.30 of the penal law, 14 as added by chapter 481 of the laws of 1978 and relettered by chapter 3 15 of the laws of 1995, is amended to read as follows: 16 (f) The aggregate maximum term of consecutive sentences imposed upon a 17 juvenile offender for two or more crimes, not including a class A felo- 18 ny, or assault in the first degree as defined in subdivision five of 19 section 120.10, gang assault in the first degree as defined in subdivi- 20 sion two of section 120.07, or manslaughter in the first degree as 21 defined in subdivision five of section 125.20 of this chapter, committed 22 before he has reached the age of sixteen, shall, if it exceeds ten 23 years, be deemed to be ten years. If consecutive indeterminate sentences 24 imposed upon a juvenile offender include a sentence for the class A 25 felony of arson in the first degree [or for the class A felony of], 26 kidnapping in the first degree, assault in the first degree as defined 27 in subdivision five of section 120.10, gang assault in the first degree 28 as defined in subdivision two of section 120.07, or manslaughter in the 29 first degree as defined in subdivision five of section 125.20 of this 30 chapter, then the aggregate maximum term of such sentences shall, if it 31 exceeds [fifteen] twenty-five years, be deemed to be [fifteen] twenty- 32 five years. Where the aggregate maximum term of two or more consecutive 33 sentences is reduced by a calculation made pursuant to this paragraph, 34 the aggregate minimum period of imprisonment, if it exceeds one-half of 35 the aggregate maximum term as so reduced, shall be deemed to be one-half 36 of the aggregate maximum term as so reduced. 37 § 8. Paragraph (d) of subdivision 1 of section 70.30 of the penal law, 38 as added by chapter 481 of the laws of 1978, is amended to read as 39 follows: 40 (d) The aggregate maximum term of consecutive sentences imposed upon a 41 juvenile offender for two or more crimes, not including a class A 42 felony, assault in the first degree as defined in subdivision five of 43 section 120.10; gang assault in the first degree as defined in subdivi- 44 sion two of section 120.07; or manslaughter in the first degree as 45 defined in subdivision five of section 125.20 of this chapter, committed 46 before he has reached the age of sixteen, shall, if it exceeds ten 47 years, be deemed to be ten years. If consecutive indeterminate sentences 48 imposed upon a juvenile offender include a sentence for the class A 49 felony of arson in the first degree [or for the class A felony of], 50 kidnapping in the first degree, assault in the first degree as defined 51 in subdivision five of section 120.10, gang assault in the first degree 52 as defined in subdivision two of section 120.07, or manslaughter in the 53 first degree as defined in subdivision five of section 125.20 of this 54 chapter, then the aggregate maximum term of such sentences shall, if it 55 exceeds [fifteen] twenty-five years, be deemed to be [fifteen] twenty- 56 five years. Where the aggregate maximum term of two or more consecutiveS. 2500--A 4 1 sentences is reduced by a calculation made pursuant to this paragraph, 2 the aggregate minimum period of imprisonment, if it exceeds one-half of 3 the aggregate maximum term as so reduced, shall be deemed to be one-half 4 of the aggregate maximum term as so reduced. 5 § 9. Subdivision 4 of section 180.75 of the criminal procedure law, as 6 amended by chapter 264 of the laws of 2003, is amended to read as 7 follows: 8 4. Notwithstanding the provisions of subdivisions two and three of 9 this section, a local criminal court shall, at the request of the 10 district attorney, order removal of an action against a juvenile offen- 11 der to the family court pursuant to the provisions of article seven 12 hundred twenty-five of this chapter if, upon consideration of the crite- 13 ria specified in subdivision two of section 210.43 of this chapter, it 14 is determined that to do so would be in the interests of justice. 15 Where, however, the felony complaint charges the juvenile offender with 16 murder in the second degree as defined in section 125.25 of the penal 17 law, rape in the first degree as defined in subdivision one of section 18 130.35 of the penal law, criminal sexual act in the first degree as 19 defined in subdivision one of section 130.50 of the penal law, [or] an 20 armed felony as defined in paragraph (a) of subdivision forty-one of 21 section 1.20 of this chapter, assault in the first degree as defined in 22 subdivision five of section 120.10 of the penal law, gang assault in the 23 first degree as defined in subdivision two of section 120.07 of the 24 penal law, or manslaughter in the first degree as defined in subdivision 25 five of section 125.20 of the penal law, a determination that such 26 action be removed to the family court shall, in addition, be based upon 27 a finding of one or more of the following factors: (i) mitigating 28 circumstances that bear directly upon the manner in which the crime was 29 committed; or (ii) where the defendant was not the sole participant in 30 the crime, the defendant's participation was relatively minor although 31 not so minor as to constitute a defense to the prosecution; or (iii) 32 possible deficiencies in proof of the crime. 33 § 10. This act shall take effect immediately; provided that: 34 (a) the amendments to paragraph (f) of subdivision 1 of section 70.30 35 of the penal law, made by section seven of this act shall be subject to 36 the expiration and reversion of such paragraph pursuant to subdivision 37 (d) of section 74 of chapter 3 of the laws of 1995, as amended, when 38 upon such date the provisions of section eight of this act shall take 39 effect; and 40 (b) the amendments to subdivision 4 of section 180.75 of the criminal 41 procedure law made by section nine of this act shall not affect the 42 repeal of such subdivision and shall be deemed repealed therewith.
