S T A T E O F N E W Y O R K
________________________________________________________________________
7066
2013-2014 Regular Sessions
I N A S S E M B L Y
May 1, 2013
___________
Introduced by M. of A. SALADINO -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the penal law, in relation to establishing the offense
of endangering the welfare of a child in a sexual manner; to amend
the penal law and the correction law, in relation to sentencing for
certain sexual offenses; and to repeal certain provisions of the penal
law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subparagraph (ii) of paragraph (a) of subdivision 3 and
2 subdivision 5 of section 70.00 of the penal law, subparagraph (ii) of
3 paragraph (a) of subdivision 3 as amended by chapter 107 of the laws of
4 2006 and subdivision 5 as amended by chapter 482 of the laws of 2009,
5 are amended to read as follows:
6 (ii) For a class A-II felony, such minimum period shall not be less
7 than three years nor more than eight years four months, except that for
8 the class A-II felony of predatory sexual assault as defined in section
9 130.95 of this chapter [or the class A-II felony of predatory sexual
10 assault against a child as defined in section 130.96 of this chapter,]
11 such minimum period shall be not less than ten years nor more than twen-
12 ty-five years AND FOR THE CLASS A-II FELONY OF PREDATORY SEXUAL ASSAULT
13 AGAINST A CHILD AS DEFINED IN SECTION 130.96 OF THIS CHAPTER SUCH MINI-
14 MUM PERIOD SHALL BE NOT LESS THAN TWENTY-FIVE YEARS AND THE MAXIMUM TERM
15 SHALL BE LIFE IMPRISONMENT.
16 5. Life imprisonment without parole. Notwithstanding any other
17 provision of law, a defendant sentenced to life imprisonment without
18 parole shall not be or become eligible for parole or conditional
19 release. For purposes of commitment and custody, other than parole and
20 conditional release, such sentence shall be deemed to be an indetermi-
21 nate sentence. A defendant may be sentenced to life imprisonment with-
22 out parole, IN ACCORDANCE WITH THE PROCEDURES PROVIDED BY LAW FOR IMPOS-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04459-01-3
A. 7066 2
1 ING SUCH A SENTENCE, EITHER: (A) upon conviction for the crime of murder
2 in the first degree as defined in section 125.27 of this chapter [and in
3 accordance with the procedures provided by law for imposing a sentence
4 for such crime]; OR (B) UPON CONVICTION OF A VIOLENT FELONY OFFENSE AS
5 DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THIS ARTICLE WHEN SUCH
6 DEFENDANT HAS PREVIOUSLY BEEN SUBJECTED TO TWO OR MORE PREDICATE VIOLENT
7 FELONY CONVICTIONS AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE OF
8 SECTION 70.04 OF THIS ARTICLE. A defendant must be sentenced to life
9 imprisonment without parole upon conviction for the crime of terrorism
10 as defined in section 490.25 of this chapter, where the specified
11 offense the defendant committed is a class A-I felony; the crime of
12 criminal possession of a chemical weapon or biological weapon in the
13 first degree as defined in section 490.45 of this chapter; or the crime
14 of criminal use of a chemical weapon or biological weapon in the first
15 degree as defined in section 490.55 of this chapter; provided, however,
16 that nothing in this subdivision shall preclude or prevent a sentence of
17 death when the defendant is also convicted of the crime of murder in the
18 first degree as defined in section 125.27 of this chapter, OR IS ALSO
19 CONVICTED OF A VIOLENT FELONY OFFENSE AS DEFINED IN SUBDIVISION ONE OF
20 SECTION 70.02 OF THIS ARTICLE WHEN SUCH DEFENDANT HAS PREVIOUSLY BEEN
21 SUBJECTED TO TWO OR MORE PREDICATE VIOLENT FELONY CONVICTIONS AS DEFINED
22 IN PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION 70.04 OF THIS ARTICLE. A
23 defendant must be sentenced to life imprisonment without parole upon
24 conviction for the crime of murder in the second degree as defined in
25 subdivision five of section 125.25 of this chapter or for the crime of
26 aggravated murder as defined in subdivision one of section 125.26 of
27 this chapter. A defendant may be sentenced to life imprisonment without
28 parole upon conviction for the crime of aggravated murder as defined in
29 subdivision two of section 125.26 of this chapter.
30 S 2. Paragraph (a) of subdivision 4 of section 70.06 of the penal law,
31 as amended by chapter 107 of the laws of 2006, is amended to read as
32 follows:
33 (a) The minimum period of imprisonment for a second felony offender
34 convicted of a class A-II felony must be fixed by the court at no less
35 than six years and not to exceed twelve and one-half years and must be
36 specified in the sentence, except that for the class A-II felony of
37 predatory sexual assault as defined in section 130.95 of this chapter
38 [or the class A-II felony of predatory sexual assault against a child as
39 defined in section 130.96 of this chapter,] such minimum period shall be
40 not less than ten years nor more than twenty-five years AND FOR THE
41 CLASS A-II FELONY OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD AS DEFINED
42 IN SECTION 130.96 OF THIS CHAPTER SUCH MINIMUM PERIOD SHALL BE NOT LESS
43 THAN TWENTY-FIVE YEARS AND THE MAXIMUM TERM SHALL BE LIFE IMPRISONMENT.
44 S 3. Subdivision 2 of section 70.08 of the penal law, as added by
45 chapter 481 of the laws of 1978, is amended to read as follows:
46 2. Authorized sentence. When the court has found, pursuant to the
47 provisions of the criminal procedure law, that a person is a persistent
48 violent felony offender the court must impose [an indeterminate sentence
49 of imprisonment, the maximum term of which shall be life imprisonment.
50 The minimum period of imprisonment under such sentence must be in
51 accordance with subdivision three of this section] A SENTENCE OF LIFE
52 IMPRISONMENT WITHOUT PAROLE PURSUANT TO SECTION 70.00 OF THIS ARTICLE.
53 S 4. Subdivision 3 of section 70.08 of the penal law is REPEALED.
54 S 5. Subdivision 1 of section 70.40 of the penal law is amended by
55 adding a new paragraph (d) to read as follows:
A. 7066 3
1 (D) A PERSON WHO HAS BEEN PAROLED AFTER SERVING A SENTENCE OF IMPRI-
2 SONMENT FOR THE CRIME OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD AS
3 DEFINED IN SECTION 130.96 OF THIS CHAPTER SHALL BE UNDER THE SUPERVISION
4 OF THE STATE BOARD OF PAROLE FOR THE DURATION OF THEIR LIFETIME.
5 S 6. Paragraphs (d), (f), (g) and (i) of subdivision 2-a of section
6 70.45 of the penal law, as added by chapter 7 of the laws of 2007, are
7 amended to read as follows:
8 (d) not less than three years nor more than ten years whenever a
9 determinate sentence is imposed pursuant to subdivision three of section
10 70.02 of this article upon a conviction of a class D or class E violent
11 felony sex offense as defined in paragraph (b) of subdivision one of
12 section 70.80 of this article; PROVIDED, HOWEVER, THAT WHEN THE
13 CONVICTION WAS FOR THE COMMISSION OF SEXUAL ABUSE IN THE FIRST DEGREE AS
14 DEFINED IN SECTION 130.65 WHEN THE VICTIM WAS LESS THAN ELEVEN YEARS OF
15 AGE OR COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE SECOND DEGREE AS
16 DEFINED IN SECTION 130.80 OF THIS CHAPTER, THE PERIOD OF POST-RELEASE
17 SUPERVISION SHALL BE FOR LIFE;
18 (f) not less than five years nor more than twenty years whenever a
19 determinate sentence is imposed pursuant to subdivision three of section
20 70.02 of this article upon a conviction of a class B violent felony sex
21 offense as defined in section 70.80 of this article; PROVIDED, HOWEVER,
22 THAT WHEN THE CONVICTION WAS FOR THE COMMISSION OF RAPE IN THE FIRST
23 DEGREE AS DEFINED IN SECTION 130.35, CRIMINAL SEXUAL ACT IN THE FIRST
24 DEGREE AS DEFINED IN SECTION 130.50, AGGRAVATED SEXUAL ABUSE IN THE
25 FIRST DEGREE AS DEFINED IN SECTION 130.70 OR COURSE OF SEXUAL CONDUCT
26 AGAINST A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION 130.75 OF THIS
27 CHAPTER, THE PERIOD OF POST-RELEASE SUPERVISION SHALL BE FOR LIFE;
28 (g) not less than five years nor more than fifteen years whenever a
29 determinate sentence of imprisonment is imposed pursuant to either
30 section 70.04, section 70.06, or subdivision five of section 70.80 of
31 this article upon a conviction of a class D or class E violent or non-
32 violent felony sex offense as defined in section 70.80 of this article;
33 PROVIDED, HOWEVER, THAT WHEN THE CONVICTION WAS FOR THE COMMISSION OF
34 SEXUAL ABUSE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.65 WHEN THE
35 VICTIM WAS LESS THAN ELEVEN YEARS OF AGE OR COURSE OF SEXUAL CONDUCT
36 AGAINST A CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 130.80 OF
37 THIS CHAPTER, THE PERIOD OF POST-RELEASE SUPERVISION SHALL BE FOR LIFE;
38 (i) such period shall be not less than ten years nor more than twen-
39 ty-five years whenever a determinate sentence of imprisonment is imposed
40 pursuant to either section 70.04, section 70.06, or subdivision five of
41 section 70.80 of this article upon a conviction of a class B violent or
42 non-violent felony sex offense as defined in section 70.80 of this arti-
43 cle; PROVIDED, HOWEVER, THAT WHEN THE CONVICTION WAS FOR THE COMMISSION
44 OF RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.35, CRIMINAL SEXU-
45 AL ACT IN THE FIRST DEGREE AS DEFINED IN SECTION 130.50, AGGRAVATED
46 SEXUAL ABUSE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.70 OR COURSE
47 OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST DEGREE AS DEFINED IN
48 SECTION 130.75 OF THIS CHAPTER, THE PERIOD OF POST-RELEASE SUPERVISION
49 SHALL BE FOR LIFE; and
50 S 7. The penal law is amended by adding a new section 260.09 to read
51 as follows:
52 S 260.09 ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL MANNER.
53 A PERSON IS GUILTY OF ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL
54 MANNER WHEN HE OR SHE COMMITS THE OFFENSE OF ENDANGERING THE WELFARE OF
55 A CHILD AND THE INJURIOUS MANNER IN WHICH HE OR SHE ACTED, OR THE OCCU-
56 PATION THE CHILD WAS DIRECTED OR AUTHORIZED TO ENGAGE IN, OR THE REASON
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1 FOR THE CHILD BEING DEEMED AN "ABUSED CHILD", A "NEGLECTED CHILD", A
2 "JUVENILE DELINQUENT" AND/OR A "PERSON IN NEED OF SUPERVISION" IS OF A
3 SEXUAL NATURE.
4 ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL MANNER IS A CLASS E
5 FELONY.
6 S 8. Section 260.11 of the penal law, as amended by chapter 89 of the
7 laws of 1984, is amended to read as follows:
8 S 260.11 Endangering the welfare of a child; corroboration.
9 A person shall not be convicted of endangering the welfare of a child
10 OR ENDANGERING THE WELFARE OF A CHILD IN A SEXUAL MANNER, or of an
11 attempt to commit the same, upon the testimony of a victim who is inca-
12 pable of consent because of mental defect or mental incapacity as to
13 conduct that constitutes an offense or an attempt to commit an offense
14 referred to in section 130.16 OF THIS PART, without additional evidence
15 sufficient pursuant to section 130.16 OF THIS PART to sustain a
16 conviction of an offense referred to in section 130.16 OF THIS PART, or
17 of an attempt to commit the same.
18 S 9. Subparagraph (i) of paragraph (a) of subdivision 2 of section
19 168-a of the correction law, as amended by chapter 405 of the laws of
20 2008, is amended to read as follows:
21 (i) a conviction of or a conviction for an attempt to commit any of
22 the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.40,
23 130.45, 130.60, 230.34, 250.50, 255.25, 255.26 [and], 255.27 AND 260.09
24 or article two hundred sixty-three of the penal law, or section 135.05,
25 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses,
26 provided the victim of such kidnapping or related offense is less than
27 seventeen years old and the offender is not the parent of the victim, or
28 section 230.04, where the person patronized is in fact less than seven-
29 teen years of age, 230.05 or 230.06, or subdivision two of section
30 230.30, or section 230.32 or 230.33 of the penal law, or (ii) a
31 conviction of or a conviction for an attempt to commit any of the
32 provisions of section 235.22 of the penal law, or (iii) a conviction of
33 or a conviction for an attempt to commit any provisions of the foregoing
34 sections committed or attempted as a hate crime defined in section
35 485.05 of the penal law or as a crime of terrorism defined in section
36 490.25 of such law or as a sexually motivated felony defined in section
37 130.91 of such law; or
38 S 10. Section 803 of the correction law is amended by adding a new
39 subdivision 1-a to read as follows:
40 1-A. A PERSON SERVING A DETERMINATE SENTENCE WHO IS SUBJECT TO THE
41 PERIOD OF POST-RELEASE SUPERVISION ESTABLISHED IN PARAGRAPH (D), (F),
42 (G) OR (I) OF SUBDIVISION TWO-A OF SECTION 70.45 OF THE PENAL LAW SHALL
43 NOT BE ENTITLED TO ANY GOOD BEHAVIOR ALLOWANCE ESTABLISHED IN THIS
44 SECTION.
45 S 11. This act shall take effect on the one hundred eightieth day
46 after it shall have become a law; provided, however, that the amendments
47 to section 803 of the correction law made by section ten of this act
48 shall survive the expiration and reversion of such section as provided
49 in subdivision d of section 74 of chapter 3 of the laws of 1995, as
50 amended.