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STATE OF NEW YORK
________________________________________________________________________

1881

2011-2012 Regular Sessions

IN ASSEMBLY

January 12, 2011
___________

Introduced  by M. of A. McENENY, CANESTRARI, SCHIMMINGER, ENGLEBRIGHT --
  Multi-Sponsored by -- M. of A. ABBATE, PHEFFER, SWEENEY, TOWNS -- read
  once and referred to the Committee on Codes

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation to sentencing of persistent child predators

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The penal law is amended by adding a new section  60.14  to
read as follows:
S 60.14 AUTHORIZED DISPOSITION; PERSISTENT CHILD PREDATOR.
  1.  CHILD  PREDATOR  OFFENSE.  FOR THE PURPOSES OF THIS SECTION "CHILD
PREDATOR OFFENSE" SHALL UNLESS OTHERWISE  INDICATED,  MEAN  ANY  OF  THE
FOLLOWING  OFFENSES  WHERE  THE VICTIM OF SUCH OFFENSE IS A PERSON UNDER
THE AGE OF SEVENTEEN:
  (A) HARASSMENT IN THE FIRST  DEGREE  AS  DEFINED  IN  SECTION  240.25;
AGGRAVATED  HARASSMENT  IN  THE  SECOND DEGREE AS DEFINED IN SUBDIVISION
ONE, TWO OR FOUR OF SECTION 240.30; ENDANGERING THE WELFARE OF  A  CHILD
AS  DEFINED  IN  SUBDIVISION ONE OF SECTION 260.10; SEXUAL MISCONDUCT AS
DEFINED IN SUBDIVISION ONE OR TWO OF SECTION 130.20; SEXUAL ABUSE IN THE
THIRD DEGREE AS DEFINED IN SECTION 130.55; SEXUAL ABUSE  IN  THE  SECOND
DEGREE AS DEFINED IN SECTION 130.60; UNLAWFUL IMPRISONMENT IN THE SECOND
DEGREE AS DEFINED IN SECTION 135.05; OR MENACING IN THE SECOND DEGREE AS
DEFINED IN SUBDIVISION TWO OF SECTION 120.14; AND
  (B)  DISSEMINATING INDECENT MATERIAL TO MINORS IN THE SECOND DEGREE AS
DEFINED IN SECTION 235.21; DISSEMINATING INDECENT MATERIAL TO MINORS  IN
THE FIRST DEGREE AS DEFINED IN SECTION 235.22; USE OF A CHILD IN A SEXU-
AL PERFORMANCE AS DEFINED IN SECTION 263.05; PROMOTING AN OBSCENE SEXUAL
PERFORMANCE  BY  A  CHILD  AS  DEFINED  IN SECTION 263.10; POSSESSING AN
OBSCENE SEXUAL PERFORMANCE BY A CHILD  AS  DEFINED  IN  SECTION  263.11;
PROMOTING  A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.15;
POSSESSING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED IN SECTION 263.16;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01820-01-1
A. 1881                             2

RAPE IN THE THIRD DEGREE  AS  DEFINED  IN  SUBDIVISION  TWO  OF  SECTION
130.25;  RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.30; RAPE IN
THE FIRST DEGREE AS DEFINED IN  SUBDIVISION  THREE  OF  SECTION  130.35;
CRIMINAL SEXUAL ACT IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION TWO OF
SECTION  130.40;  CRIMINAL SEXUAL ACT IN THE SECOND DEGREE AS DEFINED IN
SECTION 130.45; CRIMINAL SEXUAL ACT IN THE FIRST DEGREE  AS  DEFINED  IN
SUBDIVISION THREE OF SECTION 130.50; SEXUAL ABUSE IN THE FIRST DEGREE AS
DEFINED  IN SUBDIVISION THREE OF SECTION 130.65; AGGRAVATED SEXUAL ABUSE
IN THE THIRD DEGREE AS DEFINED IN PARAGRAPH (C) OF  SUBDIVISION  ONE  OF
SECTION  130.66; AGGRAVATED SEXUAL ABUSE IN THE SECOND DEGREE AS DEFINED
IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 130.67; AGGRAVATED SEXUAL
ABUSE IN THE FIRST DEGREE AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE
OF SECTION 130.70; COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST
DEGREE AS DEFINED IN SECTION 130.75; COURSE OF SEXUAL CONDUCT AGAINST  A
CHILD IN THE SECOND DEGREE AS DEFINED IN SECTION 130.80; UNLAWFUL IMPRI-
SONMENT  IN THE FIRST DEGREE AS DEFINED IN SECTION 135.10; KIDNAPPING IN
THE SECOND DEGREE AS DEFINED IN SECTION 135.20; KIDNAPPING IN THE  FIRST
DEGREE  AS DEFINED IN SECTION 135.25 OR ANY ATTEMPT TO COMMIT AN OFFENSE
ENUMERATED IN THIS PARAGRAPH.
  2. DEFINITION OF A PERSISTENT CHILD PREDATOR. (A) A  PERSISTENT  CHILD
PREDATOR IS A PERSON WHO STANDS CONVICTED OF A CHILD PREDATOR OFFENSE AS
ENUMERATED  IN  PARAGRAPH  (A)  OF SUBDIVISION ONE OF THIS SECTION AFTER
HAVING PREVIOUSLY BEEN SUBJECTED TO TWO OR MORE PREDICATE CHILD PREDATOR
CONVICTIONS AS DEFINED IN PARAGRAPH (B) OF THIS SUBDIVISION.
  (B) FOR THE PURPOSE OF DETERMINING WHETHER A  PRIOR  CONVICTION  IS  A
PREDICATE CHILD PREDATOR CONVICTION THE FOLLOWING CRITERIA SHALL APPLY:
  (I)  THE  CONVICTION  MUST HAVE BEEN IN THIS STATE OF A CHILD PREDATOR
OFFENSE AS DEFINED IN PARAGRAPH (A) OR (B) OF SUBDIVISION  ONE  OF  THIS
SECTION,  OR  IN ANY OTHER JURISDICTION OF AN OFFENSE WHICH INCLUDES ALL
OF THE ESSENTIAL ELEMENTS OF ANY SUCH CHILD PREDATOR OFFENSE;
  (II) SENTENCE UPON SUCH PRIOR CONVICTION MUST HAVE BEEN IMPOSED BEFORE
COMMISSION OF THE PRESENT CHILD PREDATOR OFFENSE;
  (III) SUSPENDED SENTENCE, SUSPENDED EXECUTION OF SENTENCE, A  SENTENCE
OF  PROBATION,  A  SENTENCE OF CONDITIONAL DISCHARGE OR OF UNCONDITIONAL
DISCHARGE, AND A SENTENCE OF CERTIFICATION TO THE CARE  AND  CUSTODY  OF
THE  DIVISION  OF  SUBSTANCE  ABUSE  SERVICES,  SHALL  BE DEEMED TO BE A
SENTENCE;
  (IV) EXCEPT  AS  PROVIDED  IN  SUBPARAGRAPH  (V)  OF  THIS  PARAGRAPH,
SENTENCE MUST HAVE BEEN IMPOSED NOT MORE THAN SEVEN YEARS BEFORE COMMIS-
SION  OF  THE  CHILD  PREDATOR  OFFENSE OF WHICH THE DEFENDANT PRESENTLY
STANDS CONVICTED;
  (V) IN CALCULATING THE SEVEN YEAR PERIOD UNDER  SUBPARAGRAPH  (IV)  OF
THIS PARAGRAPH, ANY PERIOD OF TIME DURING WHICH THE PERSON WAS INCARCER-
ATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF THE PREVIOUS CHILD
PREDATOR  OFFENSE AND THE TIME OF COMMISSION OF THE PRESENT CHILD PREDA-
TOR OFFENSE SHALL BE EXCLUDED  AND  SUCH  SEVEN  YEAR  PERIOD  SHALL  BE
EXTENDED  BY  A  PERIOD  OR  PERIODS EQUAL TO THE TIME SERVED UNDER SUCH
INCARCERATION;
  (VI) AN OFFENSE FOR WHICH THE  DEFENDANT  HAS  BEEN  PARDONED  ON  THE
GROUND  OF  INNOCENCE  SHALL  NOT  BE  DEEMED A PREDICATE CHILD PREDATOR
CONVICTION; AND
  (VII) COMMISSION OF THE SECOND PRIOR CHILD PREDATOR OFFENSE SHALL HAVE
OCCURRED AFTER THE IMPOSITION OF SENTENCE ON THE FIRST PRIOR CHILD PRED-
ATOR CONVICTION.
  3. AUTHORIZED SENTENCE. WHEN THE COURT  HAS  FOUND,  PURSUANT  TO  THE
PROVISIONS  OF  SECTION  400.13 OF THE CRIMINAL PROCEDURE LAW THAT (A) A
A. 1881                             3

PERSON IS A PERSISTENT CHILD PREDATOR AS DEFINED IN SUBDIVISION  TWO  OF
THIS  SECTION, AND (B) IMPOSITION OF A SENTENCE AUTHORIZED FOR A CLASS E
FELONY IS NECESSARY TO PROTECT THE SAFETY AND SECURITY OF  SOCIETY,  THE
COURT, IN LIEU OF IMPOSING A SENTENCE OTHERWISE AUTHORIZED FOR THE CRIME
ENUMERATED  IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION OF WHICH
SUCH PERSON PRESENTLY STANDS CONVICTED, SHALL IMPOSE A SENTENCE  AUTHOR-
IZED FOR A CLASS E FELONY.
  S  2.  The  criminal  procedure law is amended by adding a new section
400.13 to read as follows:
S 400.13 PROCEDURE FOR DETERMINING WHETHER DEFENDANT SHOULD BE SENTENCED
           AS A PERSISTENT CHILD PREDATOR.
  1. APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE  PROCEDURE
THAT  MUST  BE FOLLOWED IN ORDER TO IMPOSE THE PERSISTENT CHILD PREDATOR
SENTENCE AUTHORIZED BY SUBDIVISION THREE OF SECTION 60.14 OF  THE  PENAL
LAW. SUCH SENTENCE MAY NOT BE IMPOSED UNLESS, BASED UPON EVIDENCE IN THE
RECORD  OF  A HEARING HELD PURSUANT TO THIS SECTION, THE COURT HAS FOUND
THAT THE DEFENDANT IS A PERSISTENT CHILD PREDATOR AS DEFINED IN SUBDIVI-
SION TWO OF SECTION 60.14 OF THE PENAL LAW AND THAT  THE  IMPOSITION  OF
SUCH  SENTENCE IS NECESSARY TO PROTECT THE SAFETY AND SECURITY OF SOCIE-
TY.
  2. AUTHORIZATION FOR HEARING. WHEN INFORMATION AVAILABLE TO THE  COURT
OR  TO  THE  PEOPLE  PRIOR TO SENTENCING FOR A CHILD PREDATOR OFFENSE AS
DEFINED IN PARAGRAPH (A) OF SUBDIVISION ONE  OF  SECTION  60.14  OF  THE
PENAL  LAW INDICATES THAT THE DEFENDANT MAY BE A PERSISTENT CHILD PREDA-
TOR AS DEFINED IN SUBDIVISION TWO OF SUCH SECTION 60.14 THE COURT  SHALL
ORDER A HEARING TO DETERMINE WHETHER THE DEFENDANT IS IN FACT A PERSIST-
ENT  CHILD  PREDATOR  AND  SHOULD  BE  SENTENCED  IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION THREE OF SECTION 60.14 OF THE PENAL LAW.
  3. ORDER DIRECTING A HEARING. AN ORDER DIRECTING A HEARING  TO  DETER-
MINE  WHETHER  THE  DEFENDANT  SHOULD BE SENTENCED AS A PERSISTENT CHILD
PREDATOR MUST SPECIFY A DATE FOR THE HEARING NOT LESS THAN FOURTEEN DAYS
FROM THE DATE THE ORDER IS FILED. THE COURT MUST ANNEX TO AND FILE  WITH
THE  ORDER  A STATEMENT, TO BE PREPARED BY THE PEOPLE, SETTING FORTH THE
FOLLOWING:
  (A) THE DATES AND PLACES OF THE PREVIOUS CONVICTIONS WHICH RENDER  THE
DEFENDANT  A  PERSISTENT CHILD PREDATOR AS DEFINED IN SUBDIVISION TWO OF
SECTION 60.14 OF THE PENAL LAW; AND
  (B) THE FACTOR OR FACTORS INVOLVED IN THE COMMISSION  OF  THE  INSTANT
OFFENSE  AND  IN  THE  DEFENDANT'S BACKGROUND AND PRIOR CRIMINAL HISTORY
WHICH THE PEOPLE DEEM RELEVANT FOR THE PURPOSE OF SENTENCING THE DEFEND-
ANT AS A PERSISTENT CHILD PREDATOR  PURSUANT  TO  SUBDIVISION  THREE  OF
SECTION 60.14 OF THE PENAL LAW.
  4. NOTICE OF HEARING. UPON RECEIPT OF THE ORDER THE CLERK OF THE COURT
MUST IMMEDIATELY PROVIDE A NOTICE OF HEARING TO THE DEFENDANT, HIS COUN-
SEL  AND  THE  DISTRICT  ATTORNEY. SUCH NOTICE MUST SPECIFY THE TIME AND
PLACE OF THE HEARING AND THAT THE PURPOSE OF THE HEARING IS TO DETERMINE
WHETHER OR NOT THE DEFENDANT SHOULD BE SENTENCED AS A  PERSISTENT  CHILD
PREDATOR.  EACH NOTICE REQUIRED TO BE SENT HEREUNDER MUST BE ACCOMPANIED
BY A COPY OF THE STATEMENT FILED BY THE PEOPLE PURSUANT  TO  SUBDIVISION
THREE OF THIS SECTION.
  5.  BURDEN  AND  STANDARD  OF  PROOF;  EVIDENCE. UPON ANY HEARING HELD
PURSUANT TO THIS SECTION THE BURDEN OF PROOF IS UPON THE PEOPLE TO SHOW,
BY A PREPONDERANCE OF THE EVIDENCE, THAT SENTENCING THE DEFENDANT  AS  A
PERSISTENT CHILD PREDATOR IS NECESSARY TO PROTECT THE SAFETY AND SECURI-
TY  OF SOCIETY, PROVIDED, HOWEVER THAT A FINDING THAT THE DEFENDANT IS A
PERSISTENT CHILD PREDATOR, AS DEFINED  IN  SUBDIVISION  TWO  OF  SECTION
A. 1881                             4

60.14  OF  THE  PENAL  LAW, MUST BE BASED UPON PROOF BEYOND A REASONABLE
DOUBT BY EVIDENCE ADMISSIBLE UNDER THE RULES APPLICABLE TO  A  TRIAL  OF
THE ISSUE OF GUILT.
  6.  CONSTITUTIONALITY  OF  PRIOR CONVICTIONS. A PREVIOUS CONVICTION IN
THIS OR ANY OTHER JURISDICTION WHICH WAS OBTAINED IN  VIOLATION  OF  THE
RIGHTS OF THE DEFENDANT UNDER THE APPLICABLE PROVISIONS OF THE CONSTITU-
TION OF THE UNITED STATES MUST NOT BE COUNTED IN DETERMINING WHETHER THE
DEFENDANT IS A PERSISTENT CHILD PREDATOR. THE DEFENDANT MAY, AT ANY TIME
DURING THE COURSE OF THE HEARING HEREUNDER CONTROVERT AN ALLEGATION WITH
RESPECT TO SUCH CONVICTION IN THE STATEMENT OF THE PEOPLE ON THE GROUNDS
THAT  THE  CONVICTION WAS UNCONSTITUTIONALLY OBTAINED.  FAILURE TO CHAL-
LENGE THE PREVIOUS CONVICTION IN THE MANNER PROVIDED HEREIN  CONSTITUTES
A  WAIVER  ON THE PART OF THE DEFENDANT OF ANY ALLEGATION OF UNCONSTITU-
TIONALITY UNLESS GOOD CAUSE BE SHOWN FOR SUCH  FAILURE  TO  MAKE  TIMELY
CHALLENGE.
  7.  PRELIMINARY  EXAMINATION.  AT  THE COMMENCEMENT OF THE HEARING THE
COURT MUST ASK THE DEFENDANT WHETHER HE WISHES TO CONTROVERT ANY ALLEGA-
TION MADE IN THE STATEMENT PREPARED BY THE PEOPLE.  UNCONTROVERTED ALLE-
GATIONS IN THE STATEMENT OF THE PEOPLE SHALL  BE  DEEMED  TO  HAVE  BEEN
ADMITTED BY THE DEFENDANT.
  8.  MANNER  OF  CONDUCTING HEARING. A HEARING PURSUANT TO THIS SECTION
SHALL BE A BIFURCATED HEARING AND SHALL BE BEFORE THE  COURT  WITHOUT  A
JURY. AT THE CONCLUSION OF THE FIRST PART OF THE HEARING, THE COURT MUST
MAKE  A FINDING AS TO WHETHER OR NOT THE DEFENDANT IS A PERSISTENT CHILD
PREDATOR AS DEFINED IN SUBDIVISION TWO OF SECTION  60.14  OF  THE  PENAL
LAW.  IF THE COURT FINDS THAT THE DEFENDANT IS A PERSISTENT CHILD PREDA-
TOR AS SO DEFINED, THE COURT SHALL PROCEED TO DETERMINE,  IN  ACCORDANCE
WITH  THE PROVISIONS OF THIS SECTION AND SECTION 60.14 OF THE PENAL LAW,
WHETHER THE DEFENDANT SHALL BE SENTENCED AS A PERSISTENT CHILD PREDATOR.
  9. TERMINATION OF HEARING. AT ANY TIME DURING THE PENDENCY OF A  HEAR-
ING  PURSUANT  TO THIS SECTION, THE COURT MAY, IN ITS DISCRETION, TERMI-
NATE THE HEARING WITHOUT MAKING ANY FINDING. IN SUCH  CASE,  UNLESS  THE
COURT  RECOMMENCES THE PROCEEDINGS AND MAKES THE NECESSARY FINDINGS, THE
DEFENDANT MAY NOT BE SENTENCED AS A PERSISTENT CHILD PREDATOR.
  S 3. Section 70.06 of the penal law is amended by adding a new  subdi-
vision 8 to read as follows:
  8.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW TO THE CONTRARY, A
PREVIOUS CONVICTION AND SENTENCE AS A PERSISTENT CHILD PREDATOR PURSUANT
TO SECTION 60.14  OF  THIS  CHAPTER  SHALL  CONSTITUTE  A  PRIOR  FELONY
CONVICTION FOR PURPOSES OF SUBPARAGRAPH (I) OF PARAGRAPH (B) OF SUBDIVI-
SION ONE OF THIS SECTION.
  S  4.  Subdivision  1  of section 70.10 of the penal law is amended by
adding a new paragraph (d) to read as follows:
  (D) NOTWITHSTANDING ANY OTHER PROVISION OF  LAW  TO  THE  CONTRARY,  A
PREVIOUS CONVICTION AND SENTENCE AS A PERSISTENT CHILD PREDATOR PURSUANT
TO  SECTION  60.14  OF  THIS  CHAPTER SHALL, SUBJECT TO THE CRITERIA SET
FORTH IN PARAGRAPHS (B) AND (C) OF THIS SUBDIVISION, CONSTITUTE A PREVI-
OUS FELONY CONVICTION FOR PURPOSES OF PARAGRAPH (A) OF THIS SUBDIVISION.
  S 5. Section 65.10 of the penal law is amended by adding a new  subdi-
vision 3-a to read as follows:
  3-A.  CONDITIONS  FOR  CERTAIN  OFFENDERS. WHEN IMPOSING A SENTENCE OF
PROBATION FOR A PERSON CONVICTED OF A CHILD PREDATOR OFFENSE  THE  COURT
SHALL  REQUIRE,  IN ADDITION TO ANY OTHER CONDITIONS IMPOSED PURSUANT TO
SUBDIVISION TWO, THREE OR FOUR OF THIS SECTION, THAT SUCH PERSON  REPORT
TO  A  PROBATION  OFFICER  A  MINIMUM OF THREE DAYS PER WEEK AND HAVE AT
LEAST FOUR ADDITIONAL CONTACTS PER WEEK. FOR THE PURPOSES OF THIS SUBDI-
A. 1881                             5

VISION A CHILD PREDATOR OFFENSE SHALL HAVE THE SAME MEANING AS SET FORTH
IN SUBDIVISION ONE OF SECTION 60.14 OF THIS CHAPTER.
  S  6.  Subdivision  4 of section 60.01 of the penal law, as amended by
chapter 548 of the laws of 1984, is amended to read as follows:
  4. In any case where a person  has  been  sentenced  to  a  period  of
probation imposed pursuant to section 65.00 of this chapter, if the part
of  the  sentence that provides for probation is revoked, the court must
sentence such person to imprisonment or to the sentence of  imprisonment
and  probation  as  provided  for in paragraph (d) of subdivision two of
this section, PROVIDED, HOWEVER, THAT WHERE A SENTENCE OF PROBATION ON A
CONVICTION FOR A CHILD PREDATOR OFFENSE IS REVOKED, THE  COURT  MAY  NOT
IMPOSE  A DEFINITE SENTENCE OF IMPRISONMENT UNLESS IT IMPOSES SUCH DEFI-
NITE SENTENCE AS PART OF A SENTENCE OF  IMPRISONMENT  AND  PROBATION  IN
ACCORDANCE WITH SUBDIVISION FOUR OF SECTION 65.00 OF THIS CHAPTER.
  S  7.    Subdivisions  3  and  4 of section 65.00 of the penal law, as
amended by chapter 264 of the laws of 2003, subparagraphs (i)  and  (ii)
of  paragraph  (a) of subdivision 3 as amended by section 20 of part AAA
of chapter 56 of the laws of 2009, paragraph (c)  of  subdivision  3  as
amended  by chapter 568 of the laws of 2004 and the closing paragraph of
subdivision 3 as amended by chapter 320 of the laws of 2006, are amended
and a new subdivision 5 is added to read as follows:
  3. Periods of probation. Unless terminated sooner in  accordance  with
the criminal procedure law, the period of probation shall be as follows:
  (a)  (i) For a felony, other than a class A-II felony defined in arti-
cle two hundred twenty of this chapter or the class B felony defined  in
section  220.48  of this chapter, or any other class B felony defined in
article two hundred twenty of this chapter committed by a second  felony
drug  offender,  or  a  sexual assault, the period of probation shall be
five years;
  (ii) For a class A-II felony drug offender as defined in paragraph (a)
of subdivision one of section 70.71 of  this  chapter  as  described  in
paragraph  (b)  of  subdivision one of this section, or a class B felony
committed by a second felony drug offender described in paragraph (b) of
subdivision one of this section, the period of probation shall  be  life
and  for a class B felony defined in section 220.48 of this chapter, the
period of probation shall be twenty-five years;
  (iii) For a felony sexual assault, the period of  probation  shall  be
ten years.
  (b)  (i)  For  a class A misdemeanor, other than a sexual assault, AND
EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVISION THREE OF SECTION 60.14  OF
THIS CHAPTER, the period of probation shall be three years;
  (ii) For a class A misdemeanor sexual assault, the period of probation
shall be six years.
  (c)  For  a  class  B  misdemeanor, the period of probation shall, AND
EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVISION THREE OF SECTION 60.14  OF
THIS  CHAPTER,  be  one year, except the period of probation shall be no
less than one year and no more than three years for the class  B  misde-
meanor of public lewdness as defined in section 245.00 of this chapter;
  (d)  For an unclassified misdemeanor, the period of probation shall be
three years if the authorized sentence of imprisonment is in  excess  of
three months, otherwise the period of probation shall be one year.
  For  the  purposes of this section, the term "sexual assault" means an
offense defined in article one hundred  thirty  or  two  hundred  sixty-
three,  or  in  section  255.25, 255.26 or 255.27 of this chapter, or an
attempt to commit any of the foregoing offenses.
A. 1881                             6

  4. [In] EXCEPT AS PROVIDED IN SUBDIVISION FIVE OF THIS SECTION, IN any
case where a court pursuant to its authority under subdivision  four  of
section  60.01  of  this  chapter  revokes  probation and sentences such
person to imprisonment and probation, as provided in  paragraph  (d)  of
subdivision  two  of  section  60.01  of  this  chapter,  the  period of
probation shall be  the  remaining  period  of  the  original  probation
sentence or one year whichever is greater.
  5.  IN  ANY  CASE  WHERE  A  SENTENCE  OF  PROBATION  IS  IMPOSED ON A
CONVICTION FOR A CHILD PREDATOR OFFENSE AS DEFINED IN SECTION  60.14  OF
THIS  CHAPTER  AND  A COURT, PURSUANT TO ITS AUTHORITY UNDER SUBDIVISION
FOUR OF SECTION  60.01  OF  THIS  CHAPTER  REVOKES  SUCH  PROBATION  AND
SENTENCES  SUCH  PERSON  TO  IMPRISONMENT  AND  PROBATION, THE PERIOD OF
IMPRISONMENT SHALL BE SIX MONTHS FOR A CLASS A MISDEMEANOR AND ONE  YEAR
FOR  A  FELONY,  WHICH  SHALL  INCLUDE ANY CLASS E FELONY CHILD PREDATOR
SENTENCE IMPOSED PURSUANT TO SUBDIVISION THREE OF SECTION 60.14 OF  THIS
CHAPTER,  AND  THE  PERIOD OF PROBATION SHALL BE THE REMAINING PERIOD OF
THE ORIGINAL PROBATION SENTENCE OR ONE YEAR WHICHEVER IS GREATER.
  S 8. Subdivisions 1 and 2 of section 70.15 of the penal law,  subdivi-
sion  1  as  amended  by chapter 291 of the laws of 1993, are amended to
read as follows:
  1. Class A misdemeanor. [A] EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVI-
SION THREE OF SECTION 60.14 OF THIS CHAPTER, A sentence of  imprisonment
for  a  class  A  misdemeanor  shall be a definite sentence. When such a
sentence is imposed the term shall be fixed by the court, and shall  not
exceed  one  year;  provided,  however,  that a sentence of imprisonment
imposed upon a conviction of criminal possession  of  a  weapon  in  the
fourth  degree  as  defined in subdivision one of section 265.01 must be
for a period of no less than one year when the conviction was the result
of a plea of guilty entered in satisfaction  of  an  indictment  or  any
count  thereof  charging  the  defendant with the class D violent felony
offense of criminal possession of  a  weapon  in  the  third  degree  as
defined in subdivision four of section 265.02, except that the court may
impose  any  other  sentence authorized by law upon a person who has not
been previously convicted in the five years  immediately  preceding  the
commission  of the offense for a felony or a class A misdemeanor defined
in this chapter, if the court having regard to the  nature  and  circum-
stances  of the crime and to the history and character of the defendant,
finds on the record that such sentence would be unduly  harsh  and  that
the alternative sentence would be consistent with public safety and does
not deprecate the seriousness of the crime.
  2. Class B misdemeanor. [A] EXCEPT AS OTHERWISE AUTHORIZED BY SUBDIVI-
SION  THREE OF SECTION 60.14 OF THIS CHAPTER, A sentence of imprisonment
for a class B misdemeanor shall be a  definite  sentence.  When  such  a
sentence  is imposed the term shall be fixed by the court, and shall not
exceed three months.
  S 9. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.