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A04011 Summary:

BILL NOA04011
 
SAME ASNo Same As
 
SPONSORBarclay
 
COSPNSR
 
MLTSPNSR
 
Amd Pen L, generally; amd 30.10, CP L; amd 213-c & 215, CPLR
 
Relates to crimes committed against a child.
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A04011 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4011
 
SPONSOR: Barclay
  TITLE OF BILL: An act to amend the penal law, the criminal procedure law and the civil practice law and rules, in relation to crimes committed against a child   SUMMARY OF PROVISIONS: Section 1: Amends Penal Law § 260.10 by changing the current crime of endangering the welfare of a child into endangering the welfare of a child in the second degree. Section 2: Renumbers current Penal Law § 260.11 to § 260.12. Section 3: Adds a new Penal Law § 260.11, endangering the welfare of a child in the first degree. Section 4: Amends Penal Law § 260.12 to include references to Penal Law §§ 260.11 and 260.12. Section 5: Amends Penal Law § 260.15 to include a reference to Penal law § 260.11. Section 6: Amends Criminal Procedure Law § 30.10(2)(a) to include a Penal Law § 130.95 predatory sexual offense or a Penal Law § 130.96 predatory sexual assault against a child in the list of crimes that do not have a Statute of Limitations. Section 7: Amends Civil Practice Law and Rules § 213-c by expanding civil claims to include a Penal Law § 130.95 predatory sexual offense or a Penal Law § 130.96 predatory sexual assault against a child in the list of crimes that under which a criminal victim can recover. Section 8: Amends Civil Practice Law and Rules § 215(8)(b) to include a Penal Law § 130.95 predatory sexual offense or a Penal Law § 130.96 predatory sexual assault against a child in the list of crimes that have a five year Statute of Limitations for civil recoveries. Section 9: Amends Criminal Procedure Law § 30.10(3)(f) to remove a stat- ute of limitations period of the earlier of age 18 or reporting to a law enforcement agency from a number of crimes committed against a child. Section 10: Amends Penal Law § 130.65(4) to change the actor's age from 21 to 18 for the crime of sexual abuse in the first degree. Sections 11 through 13: Amend Penal Law §§ 130.66(1)(c), § 130.67(1)(c), and § 130.70(1)(c) by adding to the crimes of aggravated sexual abuse in the third, second, and first degrees the option that the other person is less than 13 years old and the actor is age 18 or older, in addition to the current language that the other person be less than 11 years old. Section 14: Amends Penal Law § 70.02(1)(a) by removing a course of sexu- al conduct against a child in the first degree as defined in Penal Law § 130.75 from the list of Class B violent felony offenses for purposes of sentencing. Section 15: Amends Penal Law § 70.80(3) to add a course of sexual conduct against a child in the first degree to the list of sex offense crimes that require determinate sentencing. Section 16: Amends Penal Law § 70.02(1)(c) by removing a course of sexu- al conduct against a child in the second degree from the list of Class D violent felony offenses and amends Penal Law § 70.02(1)(b) by adding that offense to the list of Class C violent felony offenses. Sections 17 and 18: Amend Penal Law § 130.75 (course of sexual conduct against a child in the first degree) and § 130.80 (course of sexual conduct against a child in the second degree) to include children in the crime of a course of conduct against a child and remove the requirement that it occur over a period of not less than three months. § 130.75 is increased from a B felony to a A-II felony; § 130.80 is increased from a D felony to a C felony. Section 19: Amends Penal Law § 130.53 to include in the definition of persistent sexual abuse sexual misconduct as defined in Penal Law § 130.20. Section 20: Amends Penal Law § 10.00 by adding a new subdivision 22, which defines "depraved indifference to human life." Section 21: Sets the effective date of the bill.   JUSTIFICATION: Crimes against children are the most abhorrent types of crimes and we need to do all we can to strengthen them. This omnibus bill is the direct result of talking with the local District Attorney and child advocates on how we can better protect children. It will create stronger laws that will better protect children and will help in the prosecution of those who abuse children. The bill addresses current statutes pertaining to child abuse, sex abuse and murder.   FELONY OF ENDANGERING THE WELFARE OF A CHILD Under current penal law, endangering the welfare of a child is a class a misdemeanor. A person is guilty of this crime if he or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old. Sadly, circumstances have arisen where children have been placed in extremely dangerous and unhealthy situations that have resulted in those children either being serious injured and even killed. Too often, under certain fact patterns, because no other crime exists, prosecutors have been constrained to charge the person putting the child in such circumstance with only a misdemeanor-a penalty that inadequately addresses the crime. This legislation attempts to create another tool for prosecutors by creating the crime of endangering the welfare of a child in the first degree which would be punishable as a class D felony. In order to be guilty of endangering the welfare of a child in the first degree, a person must knowingly act in a manner which creates a foreseeable risk of either serious physical injury or protracted harm to the mental or emotional welfare of a child less than seventeen years old. The qual- ifiers of "serious physical injury" or "protracted harm" are meant to limit this charge to the more egregious cases of someone endangering the welfare of a child. Also, unlike many other crimes in the penal law, there are no additional penalties for a person who has been convicted of endangering the welfare of a child on more than one occasion. It is strange that there is a felony charge for a person who has been convicted on multiple occasions of cruelty to animals but not for someone who has been convicted on multiple occasions of endangering the welfare of a child. Accordingly, under this legislation, a person can be charged with the crime of endan- gering the welfare of a child in the first degree Wile or she has previ- ously been convicted of endangering the welfare of a child either in the first or second degree.   STATUTE OF LIMITATIONS Because of their age and experience, the welfare of children is neces- sarily entrusted to adults. It is egregious when adults abuse this trust particularly in order to sexually abuse children. Very often, victims of child abuse do not want to report the abuse to others at the time it happens for the simple reason they fear that it is they, not the abuser, who have done something wrong. It may be many years after the abuse takes place that the abused child realizes that he or she has been a victim and unfortunately at that time, the statute of limitation may have tolled so that prosecutors cannot charge the abuser. To address this injustice, this bill removes the statute of limitations for sexual crimes committed against a child. As a result, an individual who commits sexual assault against a child will be subject to criminal pros- ecution throughout his or her life. In addition, this legislation adds predatory sexual offense and predatory sexual assault against a child are also added to the civil claims for which a criminal victim can recover.   STRENGTHENING PENALTIES FOR THOSE WHO SEXUALLY ABUSE CHILDREN AND ADDRESSING INCONSISTENCIES IN THE LAW: This bill adds to the crimes of aggravated sexual abuse in the third, second, and first degrees that if a person is less than 13 years old and the actor is age 18 or older, they can be found guilty of those crimes. The current law only applies if the victim was less than 11 years old. Increasing the age of the offender to 18 years or older, according to local prosecutors, would make this consistent with the offenses of Rape in the degree and Criminal Sexual Act in the first Degree. Another important amendment in this legislation pertains to Course of Sexual Conduct against a child. Under this legislation, Course of Sexual Conduct against a Child is amended to apply to predators who abuse multiple children. Current statute only applies when an offender has abused the same child over a period of three months or more. If that offender abuses two or more children, it does not apply. The bill also removes the phrase "over a time of not less than three months in dura- tion." One can assume the original intent of this statute was to provide enhanced penalties for those who abuse children over a period of time. Unfortunately, in narrowly defining the period of time to three months, there have been cases where prosecution were unable to charge an indi- vidual with a higher offense because the multiple acts of sexual abuse occurred less than three months. In talking with local prosecutors, removing the three month requirement and amending the law to include offenses against multiple children will help in the prosecution of seri- al abusers of multiple children. The legislation also adds the offense of Sexual Misconduct under the crimes listed under the Persistent Sexual Abuse statute. Conviction under this offense is a Class E Felony and applies to an individual who had been previously convicted of sexual abuse two or more times within the span of 10 years. For all purposes, sexual misconduct should be an offense included under the Persistent Sexual Abuse statute and would close a loophole in the statute. Unfortunately this loophole has created situations where prosecutors could not seek the higher felony charge against a repeat offender because one of the previous convictions was sexual misconduct.   CLEARLY DEFINING DEPRAVED INDIFFERENCE This bill amends Section 125.25 of the Penal Law to define depraved indifference to human life "to where the defendant, although not intend- ing to cause death, recklessly engages in a course of fatal conduct which creates a grave risk of death to another person and indicates an indifference for the value of human life. Recklessness shall be assessed objectively by the circumstances or factual setting in which the crime occurred." Recently, the Court of Appeals has taken a more subjective interpreta- tion of depraved indifference. Specifically, they are considering the person's culpable mental state at the time of the crime rather than what the previous standard of what a reasonable person would do. This subjec- tive interpretation of the law has resulted in reversing many Murder II convictions - many of which involve children who were murdered after sustaining injuries from abuse. This occurred in my Assembly District when the Court of Appeals overturned the Murder in the Second Degree conviction of Alan Jones who murdered- his step-sister Erin Maxwell. The Courts claimed that because Alan Jones called 911 after strangling Erin Maxwell to death, he did not act with "depraved indifference" to her life.   FISCAL IMPLICATIONS TO THE STATE: None to the state.   LEGISLATIVE HISTORY: 01/28/16 A.9109 referred to codes 03/29/16 A.9109 held for consideration in codes   EFFECTIVE DATE: This act shall take on the next November 1st succeeding date which it shall become law, provided that Section 6 applies to offenses committed on or after such date and to offenses committed prior, but shall not apply to offenses prior where the prosecution was barred under Criminal Procedure Law § 30.10, and Section 7 and Section 8 apply to offenses committed on or after such date and to offenses committed prior, but Section 7 shall not apply to offenses prior where the commencement of an action was barred under CPLR Article 2.
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A04011 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4011
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 30, 2017
                                       ___________
 
        Introduced  by M. of A. BARCLAY -- read once and referred to the Commit-
          tee on Codes
 
        AN ACT to amend the penal law, the criminal procedure law and the  civil
          practice  law  and  rules,  in  relation to crimes committed against a
          child
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Section 260.10 of the penal law, as amended by chapter 447
     2  of the laws of 2010, is amended to read as follows:
     3  § 260.10 Endangering the welfare of a child in the second degree.
     4    A person is guilty of endangering the welfare of a child in the second
     5  degree when:
     6    1. He or she knowingly acts in a manner likely to be injurious to  the
     7  physical,  mental  or moral welfare of a child less than seventeen years
     8  old or directs or authorizes such  child  to  engage  in  an  occupation
     9  involving a substantial risk of danger to his or her life or health; or
    10    2.  Being  a parent, guardian or other person legally charged with the
    11  care or custody of a child less than eighteen years old, he or she fails
    12  or refuses to exercise reasonable diligence in the control of such child
    13  to prevent him or her from becoming  an  "abused  child,"  a  "neglected
    14  child," a "juvenile delinquent" or a "person in need of supervision," as
    15  those  terms  are defined in articles ten, three and seven of the family
    16  court act.
    17    3. A person is not guilty of the provisions of this section when he or
    18  she engages in the conduct  described  in  subdivision  one  of  section
    19  260.00  of this article: (a) with the intent to wholly abandon the child
    20  by relinquishing responsibility for and right to the care and custody of
    21  such child; (b) with the intent that the child  be  safe  from  physical
    22  injury  and  cared  for  in an appropriate manner; (c) the child is left
    23  with an appropriate person, or in a suitable location and the person who
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05522-01-7

        A. 4011                             2
 
     1  leaves the child promptly notifies an appropriate person of the  child's
     2  location; and (d) the child is not more than thirty days old.
     3    Endangering  the  welfare of a child in the second degree is a class A
     4  misdemeanor.
     5    § 2. Section 260.11 of the penal law is renumbered section 260.12.
     6    § 3. The penal law is amended by adding a new section 260.11  to  read
     7  as follows:
     8  § 260.11 Endangering the welfare of a child in the first degree.
     9    A  person is guilty of endangering the welfare of a child in the first
    10  degree when:
    11    1. He or she knowingly acts in a manner which  creates  a  foreseeable
    12  risk  of either serious physical injury or protracted harm to the mental
    13  or emotional welfare of a child less than seventeen years old; or
    14    2. He or she commits the crime of endangering the welfare of  a  child
    15  in  the  second  degree and has previously been convicted of endangering
    16  the welfare of a child in the second degree as defined in section 260.10
    17  of this article or endangering the welfare  of  a  child  in  the  first
    18  degree as defined in this section.
    19    Endangering  the  welfare  of a child in the first degree is a class D
    20  felony.
    21    § 4. Section 260.12 of the penal law, as amended by chapter 89 of  the
    22  laws of 1984 and as renumbered by section two of this act, is amended to
    23  read as follows:
    24  § 260.12 Endangering the welfare of a child; corroboration.
    25    A  person shall not be convicted of endangering the welfare of a child
    26  as defined in sections 260.10 or  260.11  of  this  article,  or  of  an
    27  attempt  to commit the same, upon the testimony of a victim who is inca-
    28  pable of consent because of mental defect or  mental  incapacity  as  to
    29  conduct  that  constitutes an offense or an attempt to commit an offense
    30  referred to in  section  130.16  of  this  chapter,  without  additional
    31  evidence  sufficient  pursuant  to  section  130.16  of  this chapter to
    32  sustain a conviction of an offense referred to in section 130.16 of this
    33  chapter, or of an attempt to commit the same.
    34    § 5. Section 260.15 of the penal law, as amended by chapter 447 of the
    35  laws of 2010, is amended to read as follows:
    36  § 260.15 Endangering the welfare of a child; defense.
    37    In any prosecution for endangering the welfare of a child, pursuant to
    38  section 260.10 or 260.11 of this article, based upon an alleged  failure
    39  or  refusal to provide proper medical care or treatment to an ill child,
    40  it is an affirmative defense that the defendant (a) is a parent, guardi-
    41  an or other person legally charged with the  care  or  custody  of  such
    42  child;  and  (b) is a member or adherent of an organized church or reli-
    43  gious group the tenets of which prescribe prayer as the principal treat-
    44  ment for illness; and (c) treated or caused such ill child to be treated
    45  in accordance with such tenets.
    46    § 6. Paragraph (a) of subdivision 2 of section 30.10 of  the  criminal
    47  procedure law, as amended by chapter 467 of the laws of 2008, is amended
    48  to read as follows:
    49    (a) A prosecution for a class A felony, or rape in the first degree as
    50  defined  in  section  130.35  of  the  penal  law, or a crime defined or
    51  formerly defined in section 130.50 of the penal law, or aggravated sexu-
    52  al abuse in the first degree as defined in section 130.70 of  the  penal
    53  law,  or course of sexual conduct against a child in the first degree as
    54  defined in section 130.75 of the penal law, or predatory sexual  assault
    55  as  defined  in  section  130.95  of  the penal law, or predatory sexual

        A. 4011                             3
 
     1  assault against a child as defined in section 130.96 of the  penal  law,
     2  may be commenced at any time;
     3    §  7.  Section  213-c of the civil practice law and rules, as added by
     4  chapter 3 of the laws of 2006, is amended to read as follows:
     5    § 213-c. Action by  victim  of  conduct  constituting  certain  sexual
     6  offenses.  Notwithstanding  any other limitation set forth in this arti-
     7  cle, a civil claim or cause of action to recover  from  a  defendant  as
     8  hereinafter  defined,  for  physical,  psychological  or other injury or
     9  condition suffered by a person as a result of acts by such defendant  of
    10  rape  in the first degree as defined in section 130.35 of the penal law,
    11  or criminal sexual act in the first degree as defined in section  130.50
    12  of  the  penal  law,  or  aggravated sexual abuse in the first degree as
    13  defined in section 130.70 of the penal law, or course of sexual  conduct
    14  against  a child in the first degree as defined in section 130.75 of the
    15  penal law, or predatory sexual assault as defined in section  130.95  of
    16  the penal law, or predatory sexual assault against a child as defined in
    17  section  130.96  of  the  penal law may be brought within five years. As
    18  used in this section, the term "defendant" shall mean only a person  who
    19  commits  the  acts  described  in  this  section  or  who, in a criminal
    20  proceeding, could be charged with criminal liability for the  commission
    21  of  such  acts  pursuant to section 20.00 of the penal law and shall not
    22  apply to any related civil claim or cause of action  arising  from  such
    23  acts. Nothing in this section shall be construed to require that a crim-
    24  inal  charge be brought or a criminal conviction be obtained as a condi-
    25  tion of bringing a civil cause of action or receiving a  civil  judgment
    26  pursuant  to  this  section  or  be construed to require that any of the
    27  rules governing a criminal proceeding be applicable to  any  such  civil
    28  action.
    29    §  8. Paragraph (b) of subdivision 8 of section 215 of the civil prac-
    30  tice law and rules, as added by chapter  3  of  the  laws  of  2006,  is
    31  amended to read as follows:
    32    (b)  Whenever  it  is  shown  that  a criminal action against the same
    33  defendant has been commenced with respect to  the  event  or  occurrence
    34  from  which  a  claim governed by this section arises, and such criminal
    35  action is for rape in the first degree as defined in section  130.35  of
    36  the  penal law, or criminal sexual act in the first degree as defined in
    37  section 130.50 of the penal law, or aggravated sexual abuse in the first
    38  degree as defined in section 130.70 of the penal law, or course of sexu-
    39  al conduct against a child in the first degree  as  defined  in  section
    40  130.75  of  the  penal  law,  or  predatory sexual assault as defined in
    41  section 130.95 of the penal law, or predatory sexual assault  against  a
    42  child  as defined in section 130.96 of the penal law the plaintiff shall
    43  have at least five years from the termination of the criminal action  as
    44  defined  in  section  1.20  of  the  criminal  procedure law in which to
    45  commence the civil action, notwithstanding that the  time  in  which  to
    46  commence such action has already expired or has less than a year remain-
    47  ing.
    48    §  9.  Paragraph (f) of subdivision 3 of section 30.10 of the criminal
    49  procedure law, as separately amended by chapters 3 and 320 of  the  laws
    50  of 2006, is amended to read as follows:
    51    (f)  For  purposes  of  a  prosecution  involving  a sexual offense as
    52  defined in article one hundred thirty of the penal  law,  other  than  a
    53  sexual  offense  delineated  in paragraph (a) of subdivision two of this
    54  section, committed against a child less  than  eighteen  years  of  age,
    55  incest  in  the  first,  second  or  third degree as defined in sections
    56  255.27, 255.26 and 255.25 of the penal law  committed  against  a  child

        A. 4011                             4
 
     1  less  than eighteen years of age, or use of a child in a sexual perform-
     2  ance as defined in section 263.05 of the penal law,[ the period of limi-
     3  tation shall not begin to run until the child has  reached  the  age  of
     4  eighteen  or  the  offense  is  reported  to a law enforcement agency or
     5  statewide central register of child abuse  and  maltreatment,  whichever
     6  occurs earlier.] may be commenced at any time.
     7    §  10. Subdivision 4 of section 130.65 of the penal law, as amended by
     8  chapter 26 of the laws of 2011, is amended to read as follows:
     9    4. When the other person is less than thirteen years old and the actor
    10  is [twenty-one] eighteen years old or older.
    11    § 11. Paragraph (c) of subdivision 1 of section 130.66  of  the  penal
    12  law, as amended by chapter 485 of the laws of 2009, is amended and a new
    13  paragraph (d) is added to read as follows:
    14    (c) When the other person is less than eleven years old[.]; or
    15    (d)  When  the  other  person  is less than thirteen years old and the
    16  actor is eighteen years old or older.
    17    § 12. Paragraph (c) of subdivision 1 of section 130.67  of  the  penal
    18  law,  as  added by chapter 450 of the laws of 1988, is amended and a new
    19  paragraph (d) is added to read as follows:
    20    (c) When the other person is less than eleven years old[.]; or
    21    (d) When the other person is less than  thirteen  years  old  and  the
    22  actor is eighteen years old or older.
    23    §  13.  Paragraph  (c) of subdivision 1 of section 130.70 of the penal
    24  law, as amended by chapter 450 of the laws of 1988, is amended and a new
    25  paragraph (d) is added to read as follows:
    26    (c) When the other person is less than eleven years old[.]; or
    27    (d) When the other person is less than  thirteen  years  old  and  the
    28  actor is eighteen years old or older.
    29    §  14.  Paragraph  (a)  of subdivision 1 of section 70.02 of the penal
    30  law, as amended by chapter 368 of the laws of 2015, is amended  to  read
    31  as follows:
    32    (a)  Class  B  violent felony offenses: an attempt to commit the class
    33  A-I felonies of murder in  the  second  degree  as  defined  in  section
    34  125.25, kidnapping in the first degree as defined in section 135.25, and
    35  arson  in the first degree as defined in section 150.20; manslaughter in
    36  the first degree as defined in section 125.20,  aggravated  manslaughter
    37  in  the  first  degree  as  defined in section 125.22, rape in the first
    38  degree as defined in section 130.35, criminal sexual act  in  the  first
    39  degree  as  defined  in  section  130.50, aggravated sexual abuse in the
    40  first degree as defined in section 130.70,  [course  of  sexual  conduct
    41  against  a  child  in  the  first  degree as defined in section 130.75;]
    42  assault in the first degree as defined in section 120.10, kidnapping  in
    43  the  second  degree  as defined in section 135.20, burglary in the first
    44  degree as defined in section 140.30,  arson  in  the  second  degree  as
    45  defined  in  section  150.15,  robbery in the first degree as defined in
    46  section 160.15, sex trafficking as defined in paragraphs (a) and (b)  of
    47  subdivision  five  of  section  230.34,  incest  in  the first degree as
    48  defined in section 255.27, criminal possession of a weapon in the  first
    49  degree  as  defined  in section 265.04, criminal use of a firearm in the
    50  first degree as defined in section 265.09, criminal sale of a firearm in
    51  the first degree as defined in section 265.13, aggravated assault upon a
    52  police officer or a peace officer as defined  in  section  120.11,  gang
    53  assault in the first degree as defined in section 120.07, intimidating a
    54  victim  or  witness  in  the  first degree as defined in section 215.17,
    55  hindering prosecution of terrorism in the first  degree  as  defined  in
    56  section  490.35,  criminal possession of a chemical weapon or biological

        A. 4011                             5
 
     1  weapon in the second degree as defined in section 490.40,  and  criminal
     2  use  of  a  chemical  weapon or biological weapon in the third degree as
     3  defined in section 490.47.
     4    §  15.  Subdivision  3  of section 70.80 of the penal law, as added by
     5  chapter 7 of the laws of 2007, is amended to read as follows:
     6    3. Except as provided by subdivision four, five, six, seven  or  eight
     7  of this section, or when a defendant is being sentenced for a conviction
     8  of  the class A-II felonies of predatory sexual assault [and], predatory
     9  sexual assault against a child, or course of sexual  conduct  against  a
    10  child  in  the  first degree as defined in sections 130.95 [and], 130.96
    11  and 130.75 of this chapter, or for  any  class  A-I  sexually  motivated
    12  felony  for which a life sentence or a life without parole sentence must
    13  be imposed, a sentence imposed upon a defendant convicted  of  a  felony
    14  sex  offense  shall  be a determinate sentence. The determinate sentence
    15  shall be imposed by the court in whole or half years, and shall  include
    16  as  a  part  thereof  a period of post-release supervision in accordance
    17  with subdivision two-a of section 70.45 of this article. Persons  eligi-
    18  ble  for sentencing under section 70.07 of this article governing second
    19  child sexual assault felonies shall be sentenced under such section  and
    20  paragraph (j) of subdivision two-a of section 70.45 of this article.
    21    §  16. Paragraphs (b) and (c) of subdivision 1 of section 70.02 of the
    22  penal law, paragraph (b) as amended by chapter 1 of the laws of 2013 and
    23  paragraph (c) as amended by chapter 368 of the laws of 2015, are amended
    24  to read as follows:
    25    (b) Class C violent felony offenses: an attempt to commit any  of  the
    26  class  B felonies set forth in paragraph (a) of this subdivision; aggra-
    27  vated criminally negligent homicide as defined in section 125.11, aggra-
    28  vated manslaughter in the second degree as defined  in  section  125.21,
    29  aggravated  sexual  abuse  in  the  second  degree as defined in section
    30  130.67, assault on a peace officer, police officer, fireman or emergency
    31  medical services professional as defined in section 120.08, assault on a
    32  judge as defined in section 120.09, gang assault in the second degree as
    33  defined in section 120.06, strangulation in the first degree as  defined
    34  in  section  121.13,  course  of  sexual  conduct against a child in the
    35  second degree as defined in  section  130.80,  burglary  in  the  second
    36  degree  as  defined  in  section 140.25, robbery in the second degree as
    37  defined in section 160.10, criminal possession of a weapon in the second
    38  degree as defined in section 265.03, criminal use of a  firearm  in  the
    39  second  degree  as defined in section 265.08, criminal sale of a firearm
    40  in the second degree as defined in section 265.12, criminal  sale  of  a
    41  firearm with the aid of a minor as defined in section 265.14, aggravated
    42  criminal possession of a weapon as defined in section 265.19, soliciting
    43  or  providing  support  for  an  act of terrorism in the first degree as
    44  defined in section 490.15, hindering prosecution  of  terrorism  in  the
    45  second degree as defined in section 490.30, and criminal possession of a
    46  chemical  weapon  or biological weapon in the third degree as defined in
    47  section 490.37.
    48    (c) Class D violent felony offenses: an attempt to commit any  of  the
    49  class C felonies set forth in paragraph (b); reckless assault of a child
    50  as defined in section 120.02, assault in the second degree as defined in
    51  section 120.05, menacing a police officer or peace officer as defined in
    52  section  120.18, stalking in the first degree, as defined in subdivision
    53  one of section 120.60, strangulation in the second degree as defined  in
    54  section  121.12, rape in the second degree as defined in section 130.30,
    55  criminal sexual act in the second degree as defined in  section  130.45,
    56  sexual  abuse  in the first degree as defined in section 130.65, [course

        A. 4011                             6

     1  of sexual conduct against a child in the second  degree  as  defined  in
     2  section  130.80,] aggravated sexual abuse in the third degree as defined
     3  in  section  130.66,  facilitating  a  sex  offense  with  a  controlled
     4  substance  as defined in section 130.90, labor trafficking as defined in
     5  paragraphs (a) and (b) of subdivision three of section 135.35,  criminal
     6  possession  of  a  weapon  in the third degree as defined in subdivision
     7  five, six, seven, eight, nine or ten of section 265.02, criminal sale of
     8  a firearm in the third degree as defined in section 265.11, intimidating
     9  a victim or witness in the second degree as defined in  section  215.16,
    10  soliciting  or  providing  support for an act of terrorism in the second
    11  degree as defined in section 490.10, and making a terroristic threat  as
    12  defined  in  section  490.20, falsely reporting an incident in the first
    13  degree as defined in section 240.60, placing a false bomb  or  hazardous
    14  substance  in  the  first degree as defined in section 240.62, placing a
    15  false bomb or hazardous substance in a sports  stadium  or  arena,  mass
    16  transportation  facility or enclosed shopping mall as defined in section
    17  240.63, and aggravated unpermitted use of  indoor  pyrotechnics  in  the
    18  first degree as defined in section 405.18.
    19    §  17. Section 130.75 of the penal law, as amended by chapter 1 of the
    20  laws of 2000, paragraphs (a) and (b) of  subdivision  1  as  amended  by
    21  chapter 264 of the laws of 2003, is amended to read as follows:
    22  §  130.75 Course  of  sexual  conduct against a child or children in the
    23               first degree.
    24    1. A person is guilty of course of sexual conduct against a  child  or
    25  children  in the first degree when[, over a period of time not less than
    26  three months in duration]:
    27    (a) he or she engages in two or more acts  of  sexual  conduct,  which
    28  includes  at  least  one act of sexual intercourse, oral sexual conduct,
    29  anal sexual conduct or aggravated sexual contact, with a child less than
    30  eleven years old; or
    31    (b) he or she, being eighteen years old or more,  engages  in  two  or
    32  more  acts  of  sexual conduct, which include at least one act of sexual
    33  intercourse, oral sexual conduct,  anal  sexual  conduct  or  aggravated
    34  sexual contact, with a child less than thirteen years old[.]; or
    35    (c) he or she engages in the acts defined in subdivision (a) or (b) of
    36  this section with two or more children.
    37    2.  A  person  may not be subsequently prosecuted for any other sexual
    38  offense involving the same  victim  unless  the  other  charged  offense
    39  occurred outside the time period charged under this section.
    40    Course  of  sexual  conduct  against  a child or children in the first
    41  degree is a class [B] A-II felony.
    42    § 18. Section 130.80 of the penal law, as amended by chapter 1 of  the
    43  laws of 2000, is amended to read as follows:
    44  § 130.80 Course  of  sexual  conduct  against a child or children in the
    45               second degree.
    46    1. A person is guilty of course of sexual conduct against a  child  or
    47  children in the second degree when[, over a period of time not less than
    48  three months in duration]:
    49    (a)  he  or  she  engages in two or more acts of sexual conduct with a
    50  child less than eleven years old; or
    51    (b) he or she, being eighteen years old or more,  engages  in  two  or
    52  more  acts  of sexual conduct with a child less than thirteen years old;
    53  or
    54    (c) he or she engages in the acts defined in subdivision (a) or (b) of
    55  this section with two or more children.

        A. 4011                             7
 
     1    2. A person may not be subsequently prosecuted for  any  other  sexual
     2  offense  involving  the  same  victim  unless  the other charged offense
     3  occurred outside the time period charged under this section.
     4    Course  of  sexual  conduct  against a child or children in the second
     5  degree is a class [D] C felony.
     6    § 19. Section 130.53 of the penal law, as amended by  chapter  192  of
     7  the laws of 2014, is amended to read as follows:
     8  § 130.53 Persistent sexual abuse.
     9    A  person  is guilty of persistent sexual abuse when he or she commits
    10  the crime of forcible touching, as defined in  section  130.52  of  this
    11  article,  sexual abuse in the third degree, as defined in section 130.55
    12  of this article, or sexual abuse in the second  degree,  as  defined  in
    13  section  130.60  of  this  article,  or sexual misconduct, as defined in
    14  section 130.20 of this article, and, within the previous ten year  peri-
    15  od, excluding any time during which such person was incarcerated for any
    16  reason, has been convicted two or more times, in separate criminal tran-
    17  sactions for which sentence was imposed on separate occasions, of forci-
    18  ble touching, as defined in section 130.52 of this article, sexual abuse
    19  in the third degree as defined in section 130.55 of this article, sexual
    20  abuse  in  the second degree, as defined in section 130.60 of this arti-
    21  cle, or any offense defined in this article, of which the commission  or
    22  attempted commission thereof is a felony.
    23    Persistent sexual abuse is a class E felony.
    24    § 20. Section 10.00 of the penal law is amended by adding a new subdi-
    25  vision 22 to read as follows:
    26    22.  For  the  purposes  of  section  125.25 of this chapter, the term
    27  "depraved  indifference  to  human  life"  means  where  the  defendant,
    28  although not intending to cause death, recklessly engages in a course of
    29  fatal  conduct which creates a grave risk of death to another person and
    30  indicates indifference for the value of human life.  Recklessness  shall
    31  be assessed objectively by the circumstances or factual setting in which
    32  the crime occurred.
    33    §  21.  This  act  shall  take  effect  on  the first of November next
    34  succeeding the date on which it shall have become a law, provided that:
    35    1. section six of this act shall apply to offenses  committed  on  and
    36  after such date as well as to offenses committed prior thereto, provided
    37  that  such section six of this act shall not apply to offenses committed
    38  prior to such date on which the prosecution thereof was barred under the
    39  provisions of section 30.10 of the  criminal  procedure  law  in  effect
    40  immediately prior to such date; and
    41    2.  sections seven and eight of this act shall apply to acts committed
    42  on and after such date as well  as  to  acts  committed  prior  thereto,
    43  provided  that  such  section  seven of this act shall not apply to acts
    44  committed prior to such date where the commencement of an action thereon
    45  was barred under the provisions of article 2 of the civil  practice  law
    46  and rules in effect immediately prior to such date.
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