Bill Text: NY A05232 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the penal law and the correction law, in relation to sex offenses committed against children under 12 years of age and sex offenses committed by persons 21 years old or older against children under 14 years of age; to amend the correction law, in relation to requiring electronic monitoring of sex offenders convicted of such offenses against a child; to repeal subdivision 3 of section 130.35 of the penal law relating to rape of a child less than 11 years old; and to repeal subdivision 3 of section 130.50 of the penal law relating to a criminal sexual act with a child less than 11 years old
Spectrum: Strong Partisan Bill (Democrat 17-1)
Status: (Introduced - Dead) 2010-01-06 - referred to codes [A05232 Detail]
Download: New_York-2009-A05232-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
5232
2009-2010 Regular Sessions
I N A S S E M B L Y
February 11, 2009
___________
Introduced by M. of A. GIANARIS, CARROZZA, EDDINGTON, LAVINE, MAYERSOHN,
MARKEY, CHRISTENSEN, HEVESI, SPANO -- Multi-Sponsored by -- M. of A.
BENJAMIN, DESTITO, GALEF, GUNTHER, HOYT, JOHN, MAGNARELLI, PHEFFER,
SCHIMMINGER, WEISENBERG -- read once and referred to the Committee on
Codes
AN ACT to amend the penal law and the correction law, in relation to sex
offenses committed against children under 12 years of age and sex
offenses committed by persons 21 years old or older against children
under 14 years of age; to amend the correction law, in relation to
requiring electronic monitoring of sex offenders convicted of such
offenses against a child; to repeal subdivision 3 of section 130.35 of
the penal law relating to rape of a child less than 11 years old; and
to repeal subdivision 3 of section 130.50 of the penal law relating to
a criminal sexual act with a child less than 11 years old
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subparagraph (i) of paragraph (a) of subdivision 3 of
2 section 70.00 of the penal law, as amended by chapter 107 of the laws of
3 2006, is amended to read as follows:
4 (i) For a class A-I felony, such minimum period shall not be less than
5 fifteen years nor more than twenty-five years; provided, however, that
6 (A) where a sentence, other than a sentence of death or life imprison-
7 ment without parole, is imposed upon a defendant convicted of murder in
8 the first degree as defined in section 125.27 of this chapter such mini-
9 mum period shall be not less than twenty years nor more than twenty-five
10 years, and, (B) where a sentence is imposed upon a defendant convicted
11 of murder in the second degree as defined in subdivision five of section
12 125.25 of this chapter or convicted of aggravated murder as defined in
13 section 125.26 of this chapter, the sentence shall be life imprisonment
14 without parole, and, (C) where a sentence is imposed upon a defendant
15 convicted of attempted murder in the first degree as defined in article
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05741-01-9
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1 one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of
2 paragraph (a) of subdivision one and paragraph (b) of subdivision one of
3 section 125.27 of this chapter or attempted aggravated murder as defined
4 in article one hundred ten of this chapter and section 125.26 of this
5 chapter such minimum period shall be not less than twenty years nor more
6 than forty years, AND, (D) WHERE A SENTENCE IS IMPOSED UPON A DEFENDANT
7 CONVICTED OF RAPE OF A CHILD AS DEFINED IN SECTION 130.36, CRIMINAL
8 SEXUAL ACT AGAINST A CHILD AS DEFINED IN SECTION 130.51, AGGRAVATED
9 SEXUAL ABUSE OF A CHILD AS DEFINED IN SECTION 130.71 OR AGGRAVATED
10 COURSE OF SEXUAL CONDUCT AGAINST A CHILD AS DEFINED IN SECTION 130.81 OF
11 THIS CHAPTER SUCH MINIMUM PERIOD SHALL BE TWENTY YEARS.
12 S 2. Subdivision 5 of section 125.25 of the penal law, as amended by
13 chapter 320 of the laws of 2006, is amended to read as follows:
14 5. Being eighteen years old or more, while in the course of committing
15 rape in the first, second or third degree, criminal sexual act in the
16 first, second or third degree, sexual abuse in the first degree, RAPE OF
17 A CHILD, CRIMINAL SEXUAL ACT AGAINST A CHILD, AGGRAVATED SEXUAL ABUSE OF
18 A CHILD, AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD, aggravated
19 sexual abuse in the first, second, third or fourth degree, or incest in
20 the first, second or third degree, against a person less than fourteen
21 years old, he or she intentionally causes the death of such person.
22 S 3. Subdivision 3 of section 130.35 of the penal law is REPEALED.
23 S 4. The penal law is amended by adding a new section 130.36 to read
24 as follows:
25 S 130.36 RAPE OF A CHILD.
26 A PERSON IS GUILTY OF RAPE OF A CHILD WHEN:
27 1. HE OR SHE ENGAGES IN SEXUAL INTERCOURSE WITH ANOTHER PERSON WHO IS
28 LESS THAN TWELVE YEARS OLD; OR
29 2. BEING TWENTY-ONE YEARS OLD OR MORE, HE OR SHE ENGAGES IN SEXUAL
30 INTERCOURSE WITH ANOTHER PERSON LESS THAN FOURTEEN YEARS OLD.
31 RAPE OF A CHILD IS A CLASS A-I FELONY.
32 S 5. Subdivision 3 of section 130.50 of the penal law is REPEALED.
33 S 6. The penal law is amended by adding a new section 130.51 to read
34 as follows:
35 S 130.51 CRIMINAL SEXUAL ACT AGAINST A CHILD.
36 A PERSON IS GUILTY OF CRIMINAL SEXUAL ACT AGAINST A CHILD WHEN:
37 1. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT OR ANAL SEXUAL CONDUCT
38 WITH ANOTHER PERSON WHO IS LESS THAN TWELVE YEARS OLD; OR
39 2. BEING TWENTY-ONE YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL SEXU-
40 AL CONDUCT OR ANAL SEXUAL CONDUCT WITH ANOTHER PERSON WHO IS LESS THAN
41 FOURTEEN YEARS OLD.
42 CRIMINAL SEXUAL ACT AGAINST A CHILD IS A CLASS A-I FELONY.
43 S 7. Subdivision 1 of section 130.70 of the penal law, as amended by
44 chapter 450 of the laws of 1988, is amended to read as follows:
45 1. A person is guilty of aggravated sexual abuse in the first degree
46 when he inserts a foreign object in the vagina, urethra, penis or rectum
47 of another person causing physical injury to such person:
48 (a) By forcible compulsion; or
49 (b) When the other person is incapable of consent by reason of being
50 physically helpless[; or
51 (c) When the other person is less than eleven years old].
52 S 8. The penal law is amended by adding a new section 130.71 to read
53 as follows:
54 S 130.71 AGGRAVATED SEXUAL ABUSE OF A CHILD.
55 1. A PERSON IS GUILTY OF AGGRAVATED SEXUAL ABUSE OF A CHILD WHEN:
A. 5232 3
1 (A) HE OR SHE INSERTS A FOREIGN OBJECT IN THE VAGINA, URETHRA, PENIS
2 OR RECTUM OF ANOTHER PERSON CAUSING PHYSICAL INJURY TO SUCH PERSON WHEN
3 SUCH OTHER PERSON IS LESS THAN TWELVE YEARS OLD; OR
4 (B) BEING TWENTY-ONE YEARS OLD OR MORE, HE OR SHE INSERTS A FOREIGN
5 OBJECT IN THE VAGINA, URETHRA, PENIS OR RECTUM OF ANOTHER PERSON CAUSING
6 PHYSICAL INJURY TO SUCH PERSON WHEN SUCH OTHER PERSON IS LESS THAN FOUR-
7 TEEN YEARS OLD.
8 2. CONDUCT PERFORMED FOR A VALID MEDICAL PURPOSE DOES NOT VIOLATE THE
9 PROVISIONS OF THIS SECTION.
10 AGGRAVATED SEXUAL ABUSE OF A CHILD IS A CLASS A-I FELONY.
11 S 9. Subdivision 1 of section 130.75 of the penal law, as amended by
12 chapter 1 of the laws of 2000, paragraphs (a) and (b) as amended by
13 chapter 264 of the laws of 2003, is amended to read as follows:
14 1. A person is guilty of course of sexual conduct against a child in
15 the first degree when, over a period of time not less than three months
16 in duration[:
17 (a) he or she engages in two or more acts of sexual conduct, which
18 includes at least one act of sexual intercourse, oral sexual conduct,
19 anal sexual conduct or aggravated sexual contact, with a child less than
20 eleven years old; or
21 (b)], he or she, being eighteen years old or more, engages in two or
22 more acts of sexual conduct, which include at least one act of sexual
23 intercourse, oral sexual conduct, anal sexual conduct or aggravated
24 sexual contact, with a child less than thirteen years old.
25 S 10. The penal law is amended by adding a new section 130.81 to read
26 as follows:
27 S 130.81 AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD.
28 1. A PERSON IS GUILTY OF AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A
29 CHILD WHEN, OVER A PERIOD OF TIME NOT LESS THAN THREE MONTHS IN DURA-
30 TION:
31 (A) HE OR SHE ENGAGES IN TWO OR MORE ACTS OF SEXUAL CONDUCT, WHICH
32 INCLUDES AT LEAST ONE ACT OF SEXUAL INTERCOURSE, ORAL SEXUAL CONDUCT,
33 ANAL SEXUAL CONDUCT OR AGGRAVATED SEXUAL CONTACT, WITH A CHILD LESS THAN
34 TWELVE YEARS OLD; OR
35 (B) HE OR SHE, BEING TWENTY-ONE YEARS OLD OR MORE, ENGAGES IN TWO OR
36 MORE ACTS OF SEXUAL CONDUCT, WHICH INCLUDES AT LEAST ONE ACT OF SEXUAL
37 INTERCOURSE, ORAL SEXUAL CONDUCT, ANAL SEXUAL CONDUCT OR AGGRAVATED
38 SEXUAL CONTACT, WITH A CHILD LESS THAN FOURTEEN YEARS OLD.
39 2. A PERSON MAY NOT BE SUBSEQUENTLY PROSECUTED FOR ANY OTHER SEXUAL
40 OFFENSE INVOLVING THE SAME VICTIM UNLESS THE OTHER CHARGED OFFENSE
41 OCCURRED OUTSIDE THE TIME PERIOD CHARGED UNDER THIS SECTION.
42 AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD IS A CLASS A-I
43 FELONY.
44 S 11. Subparagraph (i) of paragraph (a) of subdivision 3 of section
45 168-a of the correction law, as amended by chapter 107 of the laws of
46 2006, is amended to read as follows:
47 (i) a conviction of or a conviction for an attempt to commit any of
48 the provisions of sections 130.35, 130.36, 130.50, 130.51, 130.65,
49 130.66, 130.67, 130.70, 130.71, 130.75, 130.80, 130.81, 130.95 and
50 130.96 of the penal law, or (ii) a conviction of or a conviction for an
51 attempt to commit any of the provisions of sections 130.53, 130.65-a and
52 130.90 of the penal law, or (iii) a conviction of or a conviction for an
53 attempt to commit any provisions of the foregoing sections committed or
54 attempted as a hate crime defined in section 485.05 of the penal law or
55 as a crime of terrorism defined in section 490.25 of such law; or
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1 S 12. Section 168-w of the correction law, as relettered by chapter
2 604 of the laws of 2005, is relettered 168-x and a new section 168-w is
3 added to read as follows:
4 S 168-W. ELECTRONIC MONITORING OF CERTAIN SEX OFFENDERS. 1. ANY SEX
5 OFFENDER HAVING BEEN CONVICTED OF RAPE OF A CHILD AS DEFINED IN SECTION
6 130.36, CRIMINAL SEXUAL ACT AGAINST A CHILD AS DEFINED IN SECTION
7 130.51, AGGRAVATED SEXUAL ABUSE OF A CHILD AS DEFINED IN SECTION 130.71
8 OR AGGRAVATED COURSE OF SEXUAL CONDUCT AGAINST A CHILD AS DEFINED IN
9 SECTION 130.81 OF THE PENAL LAW SHALL BE PLACED ON ELECTRONIC MONITORING
10 FOR LIFE.
11 2. THE DIVISION SHALL ESTABLISH A SYSTEM OF ACTIVE ELECTRONIC MONITOR-
12 ING THAT IDENTIFIES THE LOCATION OF A SEX OFFENDER REQUIRED TO BE MONI-
13 TORED PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THAT CAN PRODUCE,
14 UPON REQUEST, REPORTS OR RECORDS OF THE SEX OFFENDER'S PRESENCE NEAR OR
15 WITHIN A CRIME SCENE OR PROHIBITED AREA OR THE SEX OFFENDER'S DEPARTURE
16 FROM SPECIFIED GEOGRAPHIC LIMITATIONS.
17 3. THE DIVISION SHALL ALSO PROMULGATE REGULATIONS IMPLEMENTING THE
18 IMPOSITION AND COLLECTION OF FEES RELATED TO ELECTRONIC MONITORING
19 PURSUANT TO THIS SECTION. SUCH REGULATIONS SHALL UTILIZE A MEANS TEST
20 BASED ON TWO HUNDRED PERCENT OF THE FEDERAL POVERTY GUIDELINES PROMUL-
21 GATED ANNUALLY BY THE FEDERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES
22 AND IF THE SEX OFFENDER FALLS BELOW SUCH PERCENTAGE THEN NO FEE SHALL BE
23 CHARGED, AND EARNINGS ABOVE SUCH PERCENTAGE SHALL BE CONSIDERED ON A
24 SLIDING SCALE. SUCH REGULATIONS SHALL ALSO PROVIDE THAT THE DIVISION OF
25 PAROLE CONSIDER ANY ADDITIONAL TEST OR INDICIA THAT DEMONSTRATES THE
26 INABILITY OF THE SEX OFFENDER TO PAY SUCH FEES. EMPLOYEES OF THE DIVI-
27 SION OF PAROLE SHALL BE PROHIBITED FROM COLLECTING ELECTRONIC MONITORING
28 RELATED FEES.
29 4. ANY SEX OFFENDER REQUIRED TO BE ELECTRONICALLY MONITORED PURSUANT
30 TO THE PROVISIONS OF THIS SECTION WHO VIOLATES SUCH REQUIREMENT SHALL BE
31 GUILTY OF A CLASS E FELONY UPON CONVICTION FOR THE FIRST OFFENSE, AND
32 UPON CONVICTION FOR A SECOND OR SUBSEQUENT OFFENSE SHALL BE GUILTY OF A
33 CLASS D FELONY. ANY SUCH VIOLATION MAY ALSO BE THE BASIS FOR REVOCATION
34 OF PAROLE PURSUANT TO SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE
35 LAW.
36 S 13. This act shall take effect immediately and shall apply to
37 offenses committed on or after such effective date; furthermore all
38 offenses committed prior to such effective date shall be governed by the
39 provisions of law in effect immediately before such date.
