PREDATORY SEXUAL ASSAULT

LAWS OF NEW YORK, 2006
CHAPTER 107

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.

AN ACT to amend the penal law and the correction law, in relation to predatory sexual assault

Became a law June 23, 2006, with the approval of the Governor.  Passed by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1.  The penal law is amended by adding a new section 130.95 to read as follows:

    §130.95 Predatory sexual assault.

A person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and when:

1.  In the course of the commission of the crime or the immediate flight therefrom, he or she:

(a) Causes serious physical injury to the victim of such crime; or

(b) Uses or threatens the immediate use of a dangerous instrument; or

2.  He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, against one or more additional persons; or

3.  He or she has previously been subjected to a conviction for a felony defined in this article, incest as defined in section 255.25 of this chapter or use of a child in a sexual performance as defined in section 263.05 of this chapter.

Predatory sexual assault is a class A-II felony.

§2.  The penal law is amended by adding a new section 130.96 to read as follows:

   §130.96 Predatory sexual assault against a child.

A person is guilty of predatory sexual assault against a child when, being eighteen years old or more, he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and the victim is less than thirteen years old.

Predatory sexual assault against a child is a class A-II felony.

§3.  Paragraph (a) of subdivision 3 of section 70.00 of the penal law, as amended by chapter 738 of the laws of 2004, subparagraph (i) as amended by chapter 765 of the laws of 2005, is amended to read as follows:

(a) In the case of a class A felony, the minimum period shall be fixed by the court and specified in the sentence.

(i) For a class A-I felony, such minimum period shall not be less than fifteen years nor more than twenty-five years; provided, however, that (A) where a sentence, other than a sentence of death or life imprison ment without parole, is imposed upon a defendant convicted of murder in the first degree as defined in section 125.27 of this chapter such minimum period shall be not less than twenty years nor more than twenty-five years, and, (B) where a sentence is imposed upon a defendant convicted of murder in the second degree as defined in subdivision five of section 125.25 of this chapter or convicted of aggravated murder as defined in section 125.26 of this chapter, the sentence shall be life imprisonment without parole, and, (C) where a sentence is imposed upon a defendant convicted of attempted murder in the first degree as defined in article one hundred ten of this chapter and subparagraph (i), (ii) or (iii) of paragraph (a) of subdivision one and paragraph (b) of subdivision one of section 125.27 of this chapter or attempted aggravated murder as defined in article one hundred ten of this chapter and section 125.26 of this chapter such minimum period shall be not less than twenty years nor more than forty years.

(ii) For a class A-II felony, such minimum period shall not be less than three years nor more than eight years four months, except that for the class A-II felony of predatory sexual assault as defined in section 130.95 of this chapter or the class A-II felony of predatory sexual assault against a child as defined in section 130.96 of this chapter, such minimum period shall be not less than ten years nor more than twenty-five years.

§4  Paragraph (a) of subdivision 4 of section 70.06 of the penal law, as amended by chapter 410 of the laws of 1979, is amended to read as follows:

(a) The minimum period of imprisonment for a second felony offender convicted of a class A-II felony must be fixed by the court at no less than six years and not to exceed twelve and one-half years and must be specified in the sentence, except that for the class A-II felony of predatory sexual assault as defined in section 130.95 of this chapter or the class A-II felony of predatory sexual assault against a child as defined in section 130.96 of this chapter, such minimum period shall be not less than ten years nor more than twenty-five years.

§5.  Paragraphs (a) and (b) of subdivision 4 of section 70.07 of the penal law, paragraph (b) as amended by chapter 264 of the laws of 2003, are amended to read as follows:

(a) where the defendant stands convicted of such sexual assault against a child and such conviction is for a class A-II or class B felony offense, and the predicate conviction for such sexual assault against a child is for a class A-II, class B or class C felony offense, the court shall impose an indeterminate sentence of imprisonment, the maximum term of which shall be life and the minimum period of which shall be at least fifteen years and no more than twenty-five years;

(b) where the defendant stands convicted of such sexual assault against a child and the conviction is for a class C felony offense, and the predicate conviction for such sexual assault against a child is for a class A-II, class B or class C felony offense, the court shall impose a determinate sentence of imprisonment, the term of which must be at least twelve years and must not exceed thirty years; provided however, that if the court determines that a longer sentence is warranted, the court shall set forth on the record the reasons for such determination and, in lieu of imposing such sentence of imprisonment, may impose an indeterminate sentence of imprisonment, the maximum term of which shall be life and the minimum period of which shall be at least fifteen years and no more than twenty-five years;

§6.  Paragraph (a) of subdivision 1 of section 70.08 of the penal law, as added by chapter 481 of the laws of 1978, is amended to read as follows:

(a) A persistent violent felony offender is a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02 or the offense of predatory sexual assault as defined in section 130.95 of this chapter or the offense of predatory sexual assault against a child as defined in section 130.96 of this chapter, after having previously been subjected to two or more predicate  violent felony convictions as defined in paragraph (b) of subdivision one of section 70.04 of this article.

§7.  Subdivision 3 of section 70.08 of the penal law, as amended by chapter 3 of the laws of 1995, is amended to read as follows:

3.  Minimum period of imprisonment.  The minimum period of imprisonment under an indeterminate life sentence for a persistent violent felony offender must be fixed by the court as follows:

(a) For the class A-II felony of predatory sexual assault as defined in section 130.95 of this chapter or the class A-II felony of predatory sexual assault against a child as defined in section 130.96 of this chapter, the minimum period must be twenty-five years;

(a-1) For a class B felony, the minimum period must be at least twenty years and must not exceed twenty-five years;

(b) For a class C felony, the minimum period must be at least sixteen years and must not exceed twenty-five years;

(c) For  a class D felony, the minimum period must be at least twelve years and must not exceed twenty-five years.

§8.  Subdivision 3 of section 70.08 of the penal law, as added by chapter 481 of the laws of 1978, is amended to read as follows:

3.  Minimum period of imprisonment.  The minimum period of imprisonment under an indeterminate life sentence for a persistent violent felony offender must be fixed by the court as follows:

(a) For the class A-II felony of predatory sexual assault as defined in section 130.95 of this chapter or the class A-II felony of  predatory sexual assault against a child as defined in section 130.96 of this chapter, the minimum period must be twenty-five years;

(a-1) For a class B felony, the minimum period must be at least ten years and must not exceed twenty-five years;

(b) For a class C felony, the minimum period must be at least eight years and must not exceed twenty-five years;

(c) For a class D felony, the minimum period must be at least six years and must not exceed twenty-five years.

§ 9. Paragraph (a) of subdivision 3 of section 168-a of the correction law, as amended by chapter 11 of the laws of 2002, is amended to read as follows:

(a) (i) a conviction of or a conviction for an attempt to commit any of the provisions of sections 130.35, 130.50,  130.65, 130.66, 130.67, 130.70, 130.75 [and], 130.80, 130.95 and 130.96 of the penal law, or (ii) a conviction of or a conviction for an attempt to commit any of the provisions of sections 130.53, 130.65-a and 130.90 of the penal law, or (iii) a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted as a hate crime defined in section 485.05 of the  penal law or as a crime of terrorism defined in section 490.25 of such law; or

§10.  This act shall take effect immediately, provided, however, that the amendments to subdivision 3 of section 70.08 of the penal law made by section seven of this act shall be subject to the expiration and reversion of such subdivision pursuant to subdivision d of section 74 of chapter 3 of the laws of 1995, as amended, when upon such date the provisions of section eight of this act shall take effect.

The Legislature of the STATE OF NEW YORK ss:

Pursuant to the authority vested in us by section 70-b of the Public Officers Law, we hereby jointly certify that this slip copy of this session law was printed under our direction and, in accordance with such section, is entitled to be read into evidence.

            JOSEPH L. BRUNO                                           SHELDON SILVER

   Temporary President of the Senate            Speaker of the Assembly