S T A T E O F N E W Y O R K ________________________________________________________________________ 2710 2015-2016 Regular Sessions I N S E N A T E January 28, 2015 ___________ Introduced by Sen. FUNKE -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to increasing the penalties for the rape or sexual assault of a child THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Paragraph (a) of subdivision 3 of section 70.02 of the 2 penal law, as amended by chapter 765 of the laws of 2005, is amended to 3 read as follows: 4 (a) For a class B felony, the term must be at least five years and 5 must not exceed twenty-five years, provided, however, that the term must 6 be: (i) at least ten years and must not exceed thirty years where the 7 sentence is for the crime of aggravated assault upon a police officer or 8 peace officer as defined in section 120.11 of this chapter; [and] (ii) 9 at least ten years and must not exceed thirty years where the sentence 10 is for the crime of aggravated manslaughter in the first degree as 11 defined in section 125.22 of this chapter; AND (III) AT LEAST TWELVE AND 12 ONE-HALF YEARS AND MUST NOT EXCEED TWENTY-FIVE YEARS WHERE THE SENTENCE 13 IS FOR THE CRIME OF RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 14 130.35 OF THIS CHAPTER WHERE THE VICTIM WAS A CHILD FIVE YEARS OF AGE OR 15 LESS; 16 S 2. Subdivisions 1, 2, 3 and 4 of section 70.07 of the penal law, 17 subdivisions 1, 2 and 3 as amended by chapter 264 of the laws of 2003, 18 subdivision 4 as added by chapter 1 of the laws of 2000 and paragraphs 19 (a) and (b) of subdivision 4 as amended by chapter 107 of the laws of 20 2006, are amended and a new subdivision 2-a is added to read as follows: 21 1. A person who stands convicted of a felony offense for a sexual 22 assault against a child OR FOR A SEXUAL ASSAULT AGAINST A CHILD FIVE 23 YEARS OF AGE OR LESS, having been subjected to a predicate felony 24 conviction for a sexual assault against a child OR FOR A SEXUAL ASSAULT EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06467-01-5 S. 2710 2 1 AGAINST A CHILD FIVE YEARS OF AGE OR LESS, must be sentenced in accord- 2 ance with the provisions of subdivision four or five of this section. 3 2. A "sexual assault against a child" means a felony offense, other 4 than persistent sexual abuse as defined in section 130.53 of this chap- 5 ter, (a) the essential elements of which include the commission or 6 attempted commission of sexual conduct, as defined in subdivision ten of 7 section 130.00 of this chapter, (b) committed or attempted to be commit- 8 ted against a child less than fifteen years old. 9 2-A. A "SEXUAL ASSAULT AGAINST A CHILD FIVE YEARS OF AGE OR LESS" 10 MEANS A FELONY OFFENSE, OTHER THAN PERSISTENT SEXUAL ABUSE AS DEFINED IN 11 SECTION 130.53 OF THIS CHAPTER, (A) THE ESSENTIAL ELEMENTS OF WHICH 12 INCLUDE THE COMMISSION OR ATTEMPTED COMMISSION OF SEXUAL CONDUCT, AS 13 DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF THIS CHAPTER, (B) 14 COMMITTED OR ATTEMPTED TO BE COMMITTED AGAINST A CHILD FIVE YEARS OF AGE 15 OR LESS. 16 3. For purposes of determining whether a person has been subjected to 17 a predicate felony conviction under this section, the criteria set forth 18 in paragraph (b) of subdivision one of section 70.06 shall apply 19 provided however that for purposes of this subdivision, the terms "ten 20 year" or "ten years", as provided in subparagraphs (iv) and (v) of para- 21 graph (b) of subdivision one of such section 70.06, shall be "fifteen 22 year" or "fifteen years". The provisions of section 400.19 of the crimi- 23 nal procedure law shall govern the procedures that must be followed to 24 determine whether a person who stands convicted of a sexual assault 25 against a child OR A SEXUAL ASSAULT AGAINST A CHILD FIVE YEARS OF AGE OR 26 LESS has been previously subjected to a predicate felony conviction for 27 such a sexual assault and whether such offender was eighteen years of 28 age or older at the time of the commission of the predicate felony. 29 4. Where the court has found pursuant to subdivision three of this 30 section that a person who stands convicted of a felony offense defined 31 in article one hundred thirty of this chapter for the commission or 32 attempted commission of a sexual assault against a child has been 33 subjected to a predicate felony conviction for a sexual assault against 34 a child, the court shall sentence the defendant as follows: 35 (a) where the defendant stands convicted of such sexual assault 36 against a child and such conviction is for a class A-II or class B felo- 37 ny offense, and the predicate conviction for such sexual assault against 38 a child is for a class A-II, class B or class C felony offense, the 39 court shall impose an indeterminate sentence of imprisonment, the maxi- 40 mum term of which shall be life and the minimum period of which shall be 41 at least fifteen years and no more than twenty-five years; 42 (A-1) WHERE THE DEFENDANT STANDS CONVICTED OF SUCH SEXUAL ASSAULT 43 AGAINST A CHILD FIVE YEARS OF AGE OR LESS, AND THE PREDICATE CONVICTION 44 FOR SUCH SEXUAL ASSAULT AGAINST A CHILD FIVE YEARS OF AGE OR LESS IS A 45 CLASS B OR CLASS C FELONY OFFENSE, THE COURT SHALL IMPOSE AN INDETERMI- 46 NATE SENTENCE OF IMPRISONMENT, THE MAXIMUM OF WHICH SHALL BE LIFE AND 47 THE MINIMUM OF WHICH SHALL BE AT LEAST THIRTY YEARS; 48 (b) where the defendant stands convicted of such sexual assault 49 against a child and the conviction is for a class C felony offense, and 50 the predicate conviction for such sexual assault against a child is for 51 a class A-II, class B or class C felony offense, the court shall impose 52 a determinate sentence of imprisonment, the term of which must be at 53 least twelve years and must not exceed thirty years; provided however, 54 that if the court determines that a longer sentence is warranted, the 55 court shall set forth on the record the reasons for such determination 56 and, in lieu of imposing such sentence of imprisonment, may impose an S. 2710 3 1 indeterminate sentence of imprisonment, the maximum term of which shall 2 be life and the minimum period of which shall be at least fifteen years 3 and no more than twenty-five years; 4 (c) where the defendant stands convicted of such sexual assault 5 against a child and the conviction is for a class B felony offense, and 6 the predicate conviction for such sexual assault against a child is for 7 a class D or class E felony offense, the court shall impose a determi- 8 nate sentence of imprisonment, the term of which must be at least twelve 9 years and must not exceed thirty years; 10 (d) where the defendant stands convicted of such sexual assault 11 against a child and the conviction is for a class C felony offense, and 12 the predicate conviction for such sexual assault against a child is for 13 a class D or class E felony offense, the court shall impose a determi- 14 nate sentence of imprisonment, the term of which must be at least ten 15 years and must not exceed twenty-five years; 16 (e) where the defendant stands convicted of such sexual assault 17 against a child and the conviction is for a class D felony offense, and 18 the predicate conviction for such sexual assault against a child is for 19 a felony offense, the court shall impose a determinate sentence of 20 imprisonment, the term of which must be at least five years and must not 21 exceed fifteen years; and 22 (f) where the defendant stands convicted of such sexual assault 23 against a child and the conviction is for a class E felony offense, and 24 the predicate conviction for such sexual assault against a child is for 25 a felony offense, the court shall impose a determinate sentence of 26 imprisonment, the term of which must be at least four years and must not 27 exceed twelve years. 28 S 3. This act shall take effect on the first of November next succeed- 29 ing the date on which it shall have become a law.