Bill Text: NY A08163 | 2023-2024 | General Assembly | Introduced
Bill Title: Enhances sentences for certain offenses involving weapons on or near school grounds; relates to the availability of certain records of juvenile delinquents or youthful offenders; relates to annual earnings limitations for certain retired police officers employed by a school district or a board of cooperative educational services; adds a defendant's identifiable ties to the community and state to consideration for whether to fix a securing order, including residence, employment, enrollment with an educational institution, and immediate family; allows courts to hold a pre-trial community safety and well-being hearing; relates to the court's consideration of the existence of extraordinary circumstances and significant physical injury in determining whether to remove adolescent offenders to family court; defines such terms; provides factors for the court's consideration of whether extraordinary circumstances exist; exempts adolescent offenders who were illegally in possession of a loaded firearm from those authorized to be removed to family court; modifies the crime of criminal solicitation in the third degree.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2024-01-03 - referred to codes [A08163 Detail]
Download: New_York-2023-A08163-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8163 2023-2024 Regular Sessions IN ASSEMBLY October 18, 2023 ___________ Introduced by M. of A. BUTTENSCHON -- read once and referred to the Committee on Codes AN ACT to amend the penal law, in relation to enhancing sentences for certain offenses involving weapons on or near school grounds; to amend the family court act and the criminal procedure law, in relation to the availability of certain records; to amend the retirement and social security law, in relation to annual earnings limitations for certain retired police officers; to amend the criminal procedure law, in relation to adding a defendant's identifiable ties to the communi- ty, state and/or county to consider whether to fix a securing order; to amend the civil practice law and rules and the criminal procedure law, in relation to allowing courts to hold a pre-trial community safety and well-being hearing; to amend the criminal procedure law, in relation to the court's consideration of the existence of extraor- dinary circumstances and significant physical injury in determining whether to remove adolescent offenders to family court; to amend the criminal procedure law, in relation to adolescent offenders authorized to be removed to family court; and to amend the penal law, in relation to modifying the crime of criminal solicitation in the third degree 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 70.11 to 2 read as follows: 3 § 70.11 Sentences of imprisonment for weapons offenses on or near school 4 grounds; aggravating factors. 5 Matters occurring while on or within five thousand feet of school 6 grounds, as defined in subdivision fourteen of section 220.00 of this 7 chapter, shall result in the following enhancement of such sentence: 8 (a) For offenses committed under section 265.01 of this chapter, the 9 sentence shall reflect a class E felony; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13281-03-3A. 8163 2 1 (b) For offenses committed under section 265.01-a of this chapter, the 2 sentence shall reflect a class D felony; 3 (c) For offenses committed under section 265.01-b of this chapter, the 4 sentence shall reflect a class D felony; 5 (d) For offenses committed under section 265.01-c of this chapter, the 6 sentence shall reflect a class E felony; 7 (e) For offenses committed under section 265.01-d of this chapter, the 8 sentence shall reflect a class D felony; 9 (f) For offenses committed under section 265.01-e of this chapter, the 10 sentence shall reflect a class D felony; 11 (g) For offenses committed under section 265.02 of this chapter, the 12 sentence shall reflect a class C felony; 13 (h) For offenses committed under section 265.03 of this chapter, the 14 sentence shall reflect a class B felony; 15 (i) For offenses committed under section 265.04 of this chapter, the 16 sentence shall reflect a class A felony; 17 (j) For offenses committed under section 265.06 of this chapter, the 18 sentence shall reflect a misdemeanor; 19 (k) For offenses committed under section 265.07 of this chapter, the 20 sentence shall reflect a class D felony; 21 (l) For offenses committed under section 265.08 of this chapter, the 22 sentence shall reflect a class B felony; 23 (m) For offenses committed under section 265.09 of this chapter, the 24 sentence shall reflect a class A felony; 25 (n) (1) For offenses committed under subdivision one, two, or three of 26 section 265.10 of this chapter relating to the manufacture, transport, 27 shipping, or disposing of a machine-gun, assault weapon, large capacity 28 ammunition feeding device or disguised gun, or the transporting, ship- 29 ping or disposing of a firearm silencer, the sentence shall reflect a 30 class C felony; 31 (2) For offenses committed under subdivision one, two, or three of 32 section 265.10 of this chapter relating to a rapid-fire modification 33 device, the sentence shall reflect a class D felony; 34 (3) For offenses committed under subdivision three of section 265.10 35 of this chapter relating to knowingly buying, receiving, disposing of or 36 concealing a machine-gun, firearm, large capacity feeding device, rifle 37 or shotgun which has been defaced for the purpose of concealment or 38 prevention of the detection of a crime or misrepresenting such machine- 39 gun, firearm, large capacity ammunition feeding device, rifle or shot- 40 gun, the sentence shall reflect a class C felony; 41 (4) For offenses committed under subdivision four of section 265.10 of 42 this chapter, the sentence shall reflect a class E felony and a class C 43 felony if they have previously been convicted of any crime; 44 (5) For offenses committed under subdivision five or seven of section 45 265.10 of this chapter, the sentence shall reflect a class E felony; 46 (6) For offenses committed under subdivision six of section 265.10 of 47 this chapter, the sentence shall reflect a class C felony; 48 (7) For offenses committed under subdivision eight of section 265.10 49 of this chapter, the sentence shall reflect a class C felony; 50 (o) For offenses committed under section 265.11 of this chapter, the 51 sentence shall reflect a class C felony; 52 (p) For offenses committed under section 265.12 of this chapter, the 53 sentence shall reflect a class B felony; 54 (q) For offenses committed under section 265.13 of this chapter, the 55 sentence shall reflect a class B felony;A. 8163 3 1 (r) For offenses committed under section 265.14 of this chapter, the 2 sentence shall reflect a class A felony; 3 (s) For offenses committed under section 265.16 of this chapter, the 4 sentence shall reflect a class B felony; 5 (t) For offenses committed under section 265.17 of this chapter, the 6 sentence shall reflect a class C felony; 7 (u) For offenses committed under section 265.19 of this chapter, the 8 sentence shall reflect a class B felony; 9 (v) For offenses committed under section 265.25 of this chapter, the 10 sentence shall reflect a class E felony; 11 (w) For offenses committed under section 265.26 of this chapter, the 12 sentence shall reflect a class E felony; 13 (x) (1) For offenses committed under subdivision one or three of 14 section 265.35 of this chapter, the sentence shall reflect a class E 15 felony; 16 (2) For offenses committed under subdivision two of section 265.35 of 17 this chapter where the safety of a person is endangered, the sentence 18 shall reflect a class C felony and for every other case the sentence 19 shall reflect a class D felony; 20 (y) For offenses committed under section 265.37 of this chapter, the 21 sentence shall reflect a class A misdemeanor for a first offense and a 22 class E felony for a second or subsequent offense; 23 (z) For offenses committed under section 265.38 of this chapter, the 24 sentence shall reflect a class E felony; 25 (aa) For offenses committed under section 265.45 of this chapter, the 26 sentence shall reflect a class E felony; 27 (bb) For offenses committed under section 265.50 of this chapter 28 relating to the criminal manufacture, sale, or transport of an undetect- 29 able firearm, rifle or shotgun, the sentence shall reflect a class C 30 felony; 31 (cc) For offenses committed under section 265.50 of this chapter 32 relating to failure to safely store rifles, shotguns and firearms in the 33 second degree, the sentence shall reflect a misdemeanor; 34 (dd) For offenses committed under section 265.55 of this chapter, the 35 sentence shall reflect a class D felony; 36 (ee) For offenses committed under section 265.60 of this chapter, the 37 sentence shall reflect a class D felony; 38 (ff) For offenses committed under section 265.61 of this chapter, the 39 sentence shall reflect a class C felony; 40 (gg) For offenses committed under section 265.63 of this chapter, the 41 sentence shall reflect a class D felony; 42 (hh) For offenses committed under section 265.64 of this chapter, the 43 sentence shall reflect a class C felony; 44 (ii) For offenses committed under section 265.65 of this chapter, the 45 sentence shall reflect a class D felony; and 46 (jj) For offenses committed under section 265.66 of this chapter, the 47 sentence shall reflect a class D felony. 48 § 2. Subdivision 3 of section 380.1 of the family court act, as 49 amended by chapter 181 of the laws of 2000, is amended to read as 50 follows: 51 3. Except where specifically required by statute, no person shall be 52 required to divulge information pertaining to the arrest of the respond- 53 ent or any subsequent proceeding under this article; provided, however, 54 whenever a person adjudicated a juvenile delinquent [has been placed55with the office of children and family services pursuant to section56353.3 of this article, and] is [thereafter] enrolled as a student in aA. 8163 4 1 public or private elementary or secondary school, the court that has 2 adjudicated such person shall provide notification of such adjudication 3 and provide records related to such adjudication necessary to ascertain 4 the nature of the conduct leading to the adjudication including but not 5 limited to delinquency petitions, orders of the family court pursuant to 6 sections 352.1 and 352.2 of this article and probations reports, to the 7 designated educational official of the school in which such person is 8 enrolled as a student. Such notification shall be used by the designated 9 educational official only for purposes related to the execution of the 10 student's educational plan, where applicable, successful school adjust- 11 ment, developing a safety plan to ensure such student does not create a 12 risk for the community, and reentry into the community. Such notifica- 13 tion shall be kept separate and apart from such student's school records 14 and shall be accessible only by the designated educational official. 15 Such notification shall not be part of such student's permanent school 16 record and shall not be appended to or included in any documentation 17 regarding such student and shall be destroyed at such time as such 18 student is no longer enrolled in the school district. At no time shall 19 such notification be used for any purpose other than those specified in 20 this subdivision. An order by the family court to seal records pursuant 21 to section 375.2 or expunge records pursuant to section 375.3 of this 22 article shall not impact the obligation of the family court to provide 23 such notification and records. 24 § 3. Section 381.3 of the family court act is amended by adding a new 25 subdivision 4 to read as follows: 26 4. Notwithstanding any other provision of law, police records relating 27 to the arrest and disposition of any person under this article shall be 28 accessible by law enforcement and the designated educational official of 29 any public or private elementary or secondary school where such person 30 is enrolled. 31 § 4. Subdivisions 2 and 3 of section 720.35 of the criminal procedure 32 law, subdivision 2 as amended by section 87 of subpart B of part C of 33 chapter 62 of the laws of 2011 and subdivision 3 as added by chapter 181 34 of the laws of 2000, are amended to read as follows: 35 2. Except where specifically required or permitted by statute or upon 36 specific authorization of the court, all official records and papers, 37 whether on file with the court, a police agency or the division of crim- 38 inal justice services, relating to a case involving a youth who has been 39 adjudicated a youthful offender, are confidential and may not be made 40 available to any person or public or private agency, other than the 41 designated educational official of the public or private elementary or 42 secondary school in which the youth is enrolled as a student [provided43that such local educational official shall only have made available a44notice of such adjudication and shall not have access to any other offi-45cial records and papers], such youth or such youth's designated agent 46 (but only where the official records and papers sought are on file with 47 a court and request therefor is made to that court or to a clerk there- 48 of), law enforcement for the purpose of investigating and prosecuting 49 crimes subsequently committed by the youthful offender, an institution 50 to which such youth has been committed, the department of corrections 51 and community supervision and a probation department of this state that 52 requires such official records and papers for the purpose of carrying 53 out duties specifically authorized by law; provided, however, that 54 information regarding an order of protection or temporary order of 55 protection issued pursuant to section 530.12 of this [chapter] part or a 56 warrant issued in connection therewith may be maintained on the state-A. 8163 5 1 wide automated order of protection and warrant registry established 2 pursuant to section two hundred twenty-one-a of the executive law during 3 the period that such order of protection or temporary order of 4 protection is in full force and effect or during which such warrant may 5 be executed. Such confidential information may be made available pursu- 6 ant to law only for purposes of adjudicating or enforcing such order of 7 protection or temporary order of protection and, where provided to a 8 designated educational official, as defined in section 380.90 of this 9 chapter, for purposes related to the execution of the student's educa- 10 tional plan, where applicable, successful school adjustment, developing 11 a safety plan to ensure such student does not create a safety risk for 12 the community, and reentry into the community. Such notification shall 13 be kept separate and apart from such student's school records and shall 14 be accessible only by the designated educational official. Such notifi- 15 cation shall not be part of such student's permanent school record and 16 shall not be appended to or included in any documentation regarding such 17 student and shall be destroyed at such time as such student is no longer 18 enrolled in the school district. At no time shall such notification be 19 used for any purpose other than those specified in this subdivision. 20 3. If a youth who has been adjudicated a youthful offender is enrolled 21 as a student in a public or private elementary or secondary school the 22 court that has adjudicated the youth as a youthful offender shall 23 provide notification of such adjudication and provide records related to 24 such adjudication necessary to ascertain the nature of the conduct lead- 25 ing to the conviction and adjudication of the youth, including but not 26 limited to accusatory instruments, certificates of disposition, and 27 probation reports, to the designated educational official of the school 28 in which such youth is enrolled as a student. Such notification shall 29 be used by the designated educational official only for purposes related 30 to the execution of the student's educational plan, where applicable, 31 successful school adjustment, developing a safety plan to ensure such 32 student does not create a risk for the community, and reentry into the 33 community. Such notification shall be kept separate and apart from such 34 student's school records and shall be accessible only by the designated 35 educational official. Such notification shall not be part of such 36 student's permanent school record and shall not be appended to or 37 included in any documentation regarding such student and shall be 38 destroyed at such time as such student is no longer enrolled in the 39 school district. At no time shall such notification be used for any 40 purpose other than those specified in this subdivision. 41 § 5. Section 720.15 of the criminal procedure law is amended by adding 42 a new subdivision 5 to read as follows: 43 5. Notwithstanding any other provision of law, where an eligible youth 44 is charged with an offense defined in article two hundred sixty-five of 45 the penal law where allegations involve the use, possession or sale of a 46 firearm, the arresting agency is authorized to release to the public 47 identifying information including the name and booking photograph of the 48 youth. 49 § 6. Section 212 of the retirement and social security law is amended 50 by adding a new subdivision 4 to read as follows: 51 4. Notwithstanding the provisions of subdivisions one and two of this 52 section, such annual earnings limitations for a retired police officer 53 employed by a school district or a board of cooperative educational 54 services, in either the classified or unclassified service as a school 55 resource officer, school safety officer, school security officer or any 56 other substantially similar position or office that is designed toA. 8163 6 1 provide safety and/or security on school grounds, provided that such 2 retired police officer is duly qualified, competent and physically fit 3 for performance of the duties of the position in which he or she is to 4 be employed as determined by the school district or board of cooperative 5 educational services and is properly certified where such certification 6 is required, shall be fifty thousand dollars for the year two thousand 7 twenty-four and thereafter. 8 § 7. Paragraphs (i) and (j) of subdivision 1 of section 510.10 of the 9 criminal procedure law, as added by section 1 of subpart C of part UU of 10 chapter 56 of the laws of 2022, are amended and a new paragraph (k) is 11 added to read as follows: 12 (i) Whether the charge is alleged to have caused serious harm to an 13 individual or group of individuals; [and] 14 (j) If the principal is a defendant, in the case of an application for 15 a securing order pending appeal, the merit or lack of merit of the 16 appeal[.]; and 17 (k) If the principal is a defendant, whether the principal has two or 18 more identifiable ties to the community, state, and/or county, includ- 19 ing, but not limited to: 20 (i) residence; 21 (ii) employment; 22 (iii) enrollment with an educational institution; 23 (iv) immediate family. 24 § 8. Subdivision 2 of section 6342 of the civil practice law and 25 rules, as added by chapter 19 of the laws of 2019, is amended to read as 26 follows: 27 2. (a) In determining whether grounds for a temporary extreme risk 28 protection order exist, the court shall consider any relevant factors 29 including, but not limited to, the following acts of the respondent: 30 [(a)] (i) a threat or act of violence or use of physical force 31 directed toward self, the petitioner, or another person; 32 [(b)] (ii) a violation or alleged violation of an order of protection; 33 [(c)] (iii) any pending charge or conviction for an offense involving 34 the use of a weapon; 35 [(d)] (iv) the reckless use, display or brandishing of a firearm, 36 rifle or shotgun; 37 [(e)] (v) any history of a violation of an extreme risk protection 38 order; 39 [(f)] (vi) evidence of recent or ongoing abuse of controlled 40 substances or alcohol; or 41 [(g)] (vii) evidence of recent acquisition of a firearm, rifle, shot- 42 gun or other deadly weapon or dangerous instrument, or any ammunition 43 therefor. 44 (b) In considering the factors under this subdivision, the court shall 45 consider: 46 (i) the time that has elapsed since the occurrence of such act or acts 47 [and]; 48 (ii) the age of the person at the time of the occurrence of such act 49 or acts; and 50 (iii) the community safety and well-being of all residents of the 51 state. 52 (c) The court shall use any mental health evaluations the respondent 53 has undergone when making a consideration regarding the community safety 54 and well-being of all residents of the state. 55 (d) For the purposes of this subdivision, "recent" means within the 56 six months prior to the date the petition was filed.A. 8163 7 1 § 9. The criminal procedure law is amended by adding a new section 2 510.55 to read as follows: 3 § 510.55 Pretrial detention; community safety and well-being hearing. 4 1. When a principal, whose future court attendance at a criminal 5 action or proceeding is or may be required, comes under the control of a 6 court, the people may make a motion seeking pretrial detention due to 7 the mental health of the principal. The people may seek the pretrial 8 detention of a principal: 9 (a) charged with a felony that involves the use, attempted use or 10 threatened use of physical force against the person of another or any 11 other felony that, by its nature, involves a substantial risk that phys- 12 ical force against the person of another may result; 13 (b) charged with a misdemeanor or felony which has as an element the 14 violation of a court order; 15 (c) charged with a misdemeanor or felony where the victim was 16 subjected to physical, sexual or psychological abuse inflicted by a 17 member of the same family or household, as such term is defined in 18 subdivision one of section 530.11 of this title, as the applicant; 19 (d) charged with an offense for which a minimum term of three years or 20 more is prescribed; 21 (e) charged with intimidating a victim or witness in the first degree 22 as defined in section 215.17 of the penal law, intimidating a victim or 23 witness in the second degree as defined in section 215.16 of the penal 24 law, or intimidating a victim or witness in the third degree as defined 25 in section 215.15 of the penal law; 26 (f) charged with a third or subsequent violation of section eleven 27 hundred ninety-two of the vehicle and traffic law within ten years; 28 (g) charged with a felony which has as an element the use, attempted 29 use or threatened use of physical force or a deadly weapon against the 30 person of another; 31 (h) charged with burglary in the first degree as defined in section 32 140.30 of the penal law, burglary in the second degree as defined in 33 section 140.25 of the penal law, or burglary in the third degree as 34 defined in section 140.20 of the penal law, grand larceny in the second 35 degree as defined in section 155.40 of the penal law, or grand larceny 36 in the fourth degree as defined in section 155.30 of the penal law; 37 (i) charged under article one hundred fifty of the penal law; 38 (j) charged with kidnapping in the first degree as defined in section 39 135.25 of the penal law or kidnapping in the second degree as defined in 40 section 135.20 of the penal law; 41 (k) charged with a crime which involved the use of explosives; 42 (l) otherwise involves conduct that presents a serious risk of phys- 43 ical injury to another for which a term of imprisonment was served and 44 arrested and charged with a second or subsequent offense under article 45 two hundred sixty-five of the penal law; or 46 (m) charged with a felony under article twenty-six of the agriculture 47 and markets law. 48 2. (a) Upon the appearance of the principal charged with an offense 49 listed in subdivision one of this section before a supreme court or 50 district court judge and upon the motion of the people, the judge shall 51 hold a hearing pursuant to subdivision four of this section and shall 52 issue an order that, pending trial, the individual shall either be 53 released on his or her own recognizance, released on conditions of 54 release as set forth by the judge, or detained under subdivision three 55 of this section. The individual shall be released unless the judge 56 determines that releasing the principal on his or her own recognizanceA. 8163 8 1 will endanger the community safety and well-being of any other person in 2 the state but does not find by clear and convincing evidence that no 3 conditions of release will reasonably ensure the community safety and 4 well-being of any other person in the state, the judge shall order the 5 pretrial release of the principal: 6 (i) subject to the condition that the person not commit a federal, 7 state or local crime during the period of release; and 8 (ii) subject to the least restrictive further condition, or combina- 9 tion of conditions, that such judge determines will reasonably ensure 10 the community safety and well-being of any other person in the state 11 that the principal: 12 (A) remain in the custody of a designated person, who agrees to assume 13 supervision and to report any violation of a release condition to the 14 court, if the designated person is reasonably able to ensure the judi- 15 cial officer that the person will appear as required and will not pose a 16 danger to the safety of any other person or the community; 17 (B) maintain employment, or, if unemployed, actively seek employment; 18 (C) maintain or commence an educational program; 19 (D) abide by specified restrictions on personal associations, living 20 accommodations or travel; 21 (E) avoid all contact with an alleged victim of the crime and with any 22 potential witness or witnesses who may testify concerning the offense; 23 (F) report on a regular basis to a designated law enforcement agency, 24 pretrial service agency, or other agency; 25 (G) comply with a specified curfew; 26 (H) refrain from possessing a firearm, destructive device, or other 27 dangerous weapon; 28 (I) refrain from excessive use of alcohol, or any use of a narcotic 29 drug or other controlled substance, without a prescription by a licensed 30 medical practitioner; 31 (J) undergo available medical, psychological, or psychiatric treat- 32 ment, including treatment for drug or alcohol dependency and remain in a 33 specified institution if required for that purpose; 34 (K) return to custody for specified hours following release for 35 employment, schooling, or other limited purposes; 36 (L) satisfy any other condition that is reasonably necessary to ensure 37 the appearance of the person as required and to ensure the safety and 38 well-being of any other person and the community; and 39 (M) participates in a community corrections program under the depart- 40 ment of corrections and community supervision, provided, however, that 41 the principal shall not participate in such program without his or her 42 consent to such participation. 43 (b) The judge shall not impose a financial condition that results in 44 the pretrial detention of the person under this section. 45 (c) The judge may at any time amend the order to impose additional or 46 different conditions of release. 47 3. There shall be a rebuttable presumption of release on recognizance 48 for every principal brought before the court. If, after a hearing pursu- 49 ant to the provisions of subdivision four of this section, the district 50 or supreme court judge finds by clear and convincing evidence that no 51 conditions of release will reasonably ensure the community safety and 52 well-being of any other person in the state, said judge shall order the 53 detention of the principal prior to trial. A principal detained under 54 this subdivision shall be brought to a trial as soon as reasonably 55 possible, but in absence of extraordinary circumstances, such principal 56 shall not be detained for a period exceeding one hundred twenty days byA. 8163 9 1 the district court or for a period exceeding one hundred eighty days by 2 the supreme court. 3 4. (a) When a principal is held under arrest for an offense listed in 4 subdivision one of this section and upon a motion by the people, the 5 judge shall hold a hearing to determine whether conditions of release 6 will reasonably ensure the community safety and well-being of any other 7 person in the state. A principal shall be offered the appropriate mental 8 health services while being held under arrest for an offense listed in 9 subdivision one of this section. 10 (b) The hearing shall be held immediately upon the principal's first 11 appearance before the court unless such principal or the people seek a 12 continuance. Except for good cause, a continuance on motion of the prin- 13 cipal shall not exceed seven days and a continuance on motion of the 14 people shall not exceed three business days. During a continuance, the 15 principal shall be detained upon a showing that there existed probable 16 cause to arrest the principal or that without detention the principal 17 would result in serious harm to himself, herself, or others, as defined 18 in paragraph one or two of subdivision (a) of section 9.39 of the mental 19 hygiene law. At the hearing, such principal shall have the right to be 20 represented by counsel, and, if financially unable to retain adequate 21 representation, to have counsel appointed. The principal shall be 22 afforded an opportunity to testify, to present witnesses, to cross-exa- 23 mine witnesses who appear at the hearing, and to present information. 24 Prior to the summons of an alleged victim, or a member of the alleged 25 victim's family, to appear as a witness at the hearing, the principal 26 shall demonstrate to the court a good faith basis for the principal's 27 reasonable belief that the testimony from the witness will be material 28 and relevant to support a conclusion that there are conditions of 29 release that will reasonably ensure the community safety and well-being 30 of any other person in the state. The rules concerning admissibility of 31 evidence in criminal trials shall not apply to the presentation and 32 consideration of information at the hearing and the judge shall consider 33 hearsay contained in a police report, the statement of an alleged victim 34 or witness, and shall have access to any mental health evaluation the 35 principal has undergone prior to hearing. The facts the judge uses to 36 support findings pursuant to subdivision three of this section, that no 37 conditions will reasonably ensure the community safety and well-being of 38 any other person in the state, shall be supported by clear and convinc- 39 ing evidence. In a detention order issued pursuant to the provisions of 40 subdivision three of this section the judge shall: (i) include written 41 findings of fact and a written statement of the reasons for the 42 detention; (ii) direct that the principal be committed to custody or 43 confinement in a corrections facility separate, to the extent practica- 44 ble, from principals awaiting or serving sentence or being held in 45 custody pending appeal or a community treatment center; and (iii) direct 46 that the principal be afforded reasonable opportunity for private 47 consultation with his or her counsel. The principal may be detained 48 pending completion of the hearing. The hearing may be reopened by the 49 judge, at any time before trial, or upon a motion of the people or the 50 principal detained if the judge finds that: (A) information exists that 51 was not known at the time of the hearing or that there has been a change 52 in circumstances; and (B) that such information or change in circum- 53 stances has a material bearing on the issue of whether there are condi- 54 tions of release that will reasonably ensure the community safety and 55 well-being of any other person in the state.A. 8163 10 1 5. In his or her determination as to whether there are conditions of 2 release that will reasonably ensure the community safety and well-being 3 of any other person in the state, said judge shall, on the basis of any 4 information which he or she can reasonably obtain, take into account the 5 nature and seriousness of the danger posed to any other person or the 6 community that would result by the principal's release, the nature and 7 circumstances of the offense charged, the potential penalty the princi- 8 pal faces, the principal's family ties, employment record, history of 9 mental illness, and reputation, the risk that the principal will 10 obstruct or attempt to obstruct the judge or threaten, injure or intim- 11 idate or attempt to threaten, injure or intimidate a prospective witness 12 or juror, his or her record of convictions, if any, any illegal drug 13 distribution or present drug dependency, and whether the principal is 14 released pending adjudication of a prior charge. 15 6. Nothing in this section shall be construed as modifying or limiting 16 the presumption of innocence. 17 7. (a) A principal aggrieved by the denial of a district court judge 18 to release him or her on his or her own recognizance with or without 19 surety or condition may petition the supreme court for a review of the 20 order of the recognizance and the judge of the district court shall 21 thereupon immediately notify such principal of his or her right to file 22 a petition for review in the supreme court. When a petition for review 23 is filed in the district court or with the detaining authority subse- 24 quent to the petitioner's district court appearance, the clerk of the 25 district court or the detaining authority, as the case may be, shall 26 immediately notify by telephone, the clerk and probation officer of the 27 district court, the district attorney for the district in which the 28 district court is located, the prosecuting officer, the petitioner's 29 counsel, if any, and the clerk of courts of the county to which the 30 petition is to be transmitted. The clerk of the district court, upon the 31 filing of a petition for review, either in the district court or with 32 the detaining authority, shall forthwith transmit the petition for 33 review, a copy of the complaint and the record of the court, including 34 the appearance of the attorney, if any is entered, and a summary of the 35 court's reasons for denying the release of the principal on his or her 36 own recognizance with or without surety or condition to the supreme 37 court for the county in which the district court is located, if a judge 38 thereof is then sitting, or to the supreme court of the nearest county 39 in which a judge is then sitting. The probation officer of the district 40 court shall transmit forthwith to the probation officer of the supreme 41 court, copies of all records of the probation office of said district 42 court pertaining to the petitioner, including the petitioner's record of 43 prior convictions, if any, as currently verified by inquiry of the 44 commissioner. The district court or the detaining authority, as the case 45 may be, shall cause any petitioner in its custody to be brought before 46 said supreme court within two business days of the petition having been 47 filed. The district court is authorized to order any officer authorized 48 to execute criminal process to transfer the petitioner and any papers 49 herein above described from the district court or the detaining authori- 50 ty to the supreme court, and to coordinate the transfer of the petition- 51 er and the papers by such officer. The petition for review shall 52 constitute authority in the person or officer having custody of the 53 petitioner to transport the petitioner to said supreme court without the 54 issuance of any writ or other legal process; provided, however, that any 55 district or supreme court is authorized to issue a writ of habeas corpus 56 for the appearance forthwith of the petitioner before the supreme court.A. 8163 11 1 (b) The supreme court shall hear the petition for review as speedily 2 as practicable and in any event within five business days of the filing 3 of the petition. The supreme court judge hearing the review may consider 4 the record below which the people and the principal may supplement. The 5 judge of the supreme court may, after a hearing on the petition for 6 review, order that the petitioner be released on his or her own recogni- 7 zance without surety or condition, or, in his or her discretion, to 8 reasonably ensure the effective administration of justice, make any 9 other order of bail or recognizance or remand the petitioner in accord- 10 ance with the terms of the process by which he or she was ordered 11 committed by the district court. 12 8. If after a hearing under subdivision four of this section detention 13 under subdivision three of this section is ordered or pretrial release 14 subject to conditions under subdivision two of this section is ordered, 15 then: (a) the clerk shall immediately notify the principal's probation 16 officer of the order; and (b) the order of detention under subdivision 17 three of this section or order of pretrial release subject to conditions 18 under subdivision two of this section shall be recorded in the princi- 19 pal's criminal record. 20 § 10. Paragraph (d) of subdivision 1 of section 722.23 of the criminal 21 procedure law, as added by section 1-a of part WWW of chapter 59 of the 22 laws of 2017, is amended to read as follows: 23 (d) The court shall deny the motion to prevent removal of the action 24 in youth part unless the court makes a determination upon such motion by 25 the district attorney that extraordinary circumstances exist that should 26 prevent the transfer of the action to family court. For the purposes of 27 this paragraph, the term "extraordinary circumstances" shall mean the 28 existence of highly unusual and heinous facts, in addition to strong 29 proof that the defendant is not amenable or would not benefit in any way 30 from transfer of the action to family court. Factors that shall be 31 considered by the court in determining whether extraordinary circum- 32 stances exist shall include, but shall not be limited to, whether the 33 defendant: 34 (i) committed a series of crimes over multiple days in close proximi- 35 ty; 36 (ii) acted in an especially cruel and heinous manner; or 37 (iii) led, threatened, or coerced other reluctant adolescents into 38 participating in the crime or crimes which are the basis of the action. 39 § 11. Subdivision 2 of section 722.23 of the criminal procedure law is 40 amended by adding a new paragraph (c-1) to read as follows: 41 (c-1) For the purposes of paragraph (c) of this subdivision, the term 42 "significant physical injury" shall mean physical injury that involves a 43 risk of death, significant physical pain, protracted and obvious disfig- 44 urement, or a protracted loss or impairment of the function of a bodily 45 member, organ, or mental or sensory faculty. 46 § 12. Subparagraph (ii) of paragraph (c) of subdivision 2 of section 47 722.23 of the criminal procedure law, as added by section 1-a of part 48 WWW of chapter 59 of the laws of 2017, is amended to read as follows: 49 (ii) the defendant [displayed] was illegally in possession of a loaded 50 firearm[, shotgun, rifle or deadly weapon] as defined in the penal law 51 [in furtherance of such offense]; or 52 § 13. Section 100.08 of the penal law, as added by chapter 422 of the 53 laws of 1978, is amended to read as follows: 54 § 100.08 Criminal solicitation in the third degree. 55 A person is guilty of criminal solicitation in the third degree 56 when[,]:A. 8163 12 1 1. being over eighteen years of age, with the intent that another 2 person under sixteen years of age engage in conduct that would consti- 3 tute a felony, he or she solicits, requests, commands, importunes or 4 otherwise attempts to cause such other person to engage in such 5 conduct[.]; or 6 2. being over eighteen years of age, with the intent that another 7 person under eighteen years of age engage in conduct that would consti- 8 tute a crime under article two hundred sixty-five of this chapter, he or 9 she intentionally provides a loaded firearm to such person in order to 10 protect the actor from criminal prosecution. 11 Criminal solicitation in the third degree is a class E felony. 12 § 14. This act shall take effect on the first of November next 13 succeeding the date on which it shall have become a law and shall apply 14 to all criminal cases where the defendant was arraigned on or after such 15 effective date.
