Establishes crime of aggravated criminal conduct to provide more severe penalties for persons who have committed 3 or more qualifying misdemeanors or felonies within ten years of the present class A misdemeanor offense.
Ayes (50): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Kennedy, Klein, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Nozzolio, O'Brien, O'Mara, Ranzenhofer, Ritchie, Robach, Sampson, Savino, Seward, Skelos, Smith, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Nays (13): Espaillat, Hassell-Thomps, Hoylman, Krueger, Montgomery, Parker, Peralta, Perkins, Rivera, Sanders, Serrano, Squadron, Stavisky
Ayes (42): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Farley, Felder, Flanagan, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Kennedy, Klein, Lanza, Latimer, LaValle, Libous, Marcellino, Marchione, Martins, Maziarz, Nozzolio, O'Brien, O'Mara, Ranzenhofer, Ritchie, Robach, Savino, Seward, Skelos, Smith, Stewart-Cousins, Tkaczyk, Valesky, Young, Zeldin
Nays (12): Dilan, Hassell-Thomps, Hoylman, Krueger, Montgomery, Parker, Rivera, Sampson, Sanders, Serrano, Squadron, Stavisky
Absent (5): Diaz, Espaillat, Hannon, Peralta, Perkins
Excused (2): Larkin, Little
TITLE OF BILL: An act to amend the criminal procedure law and the penal law, in relation to aggravated criminal conduct
PURPOSE: To enhance public safety by providing appropriately severe punishment for those who repeatedly commit misdemeanor crimes. Specifically, the bill would strengthen existing law by creating the crime of aggravated criminal conduct, thereby enabling courts to impose felony sanctions on persistent misdemeanor offenders.
SUMMARY OF PROVISIONS:
Section one amends Criminal Procedure Law section 180.60(8) to allow sex offender registration forms and criminal history record concerning the defendant that have been certified by the Commissioner of the Division of Criminal Justice Services as true copies to be included in the list of non-hearsay evidence that is admissible at a hearing upon a felony complaint to demonstrate reasonable cause to believe that the defendant committed a felony.
Section two amends Criminal Procedure Law section 190.30(2-a) to include forms and records in the list of documentary evidence that may be electronically transmitted for potential use in a grand just proceeding.
Section three amends Criminal Procedure Law section 190.30(3-a) to include the defendant's criminal history record and to make technical amendments for consistency.
Section four amends the Penal Law by adding new section 240.76 establishing the crime of aggravated criminal conduct. A person is guilty of aggravated criminal conduct when he or she commits a class "A" misdemeanor after having been previously subjected to at least three qualifying misdemeanor or felony convictions within the preceding ten years. The crime of aggravated criminal conduct is a class "E" felony.
When determining whether a defendant has at least three qualifying misdemeanor or felony convictions within the preceding ten years, the following rules shall apply:
(1) The conviction must be for any felony, a class "A" misdemeanor, or a crime in another jurisdiction for which the mandatory sentence is at least one year of imprisonment or death; (2) The sentences for the prior convictions must have been imposed before the commission of the present misdemeanor; (3) Any suspended sentence, sentence of probation, sentence of parole supervision, conditional discharge or unconditional discharge shall be deemed to be a sentence; (4) Each sentence must not have been imposed more than ten years before the commission of the present misdemeanor. When computing the ten year period, any period of time during which the defendant was incarcerated for any reason shall extend the ten year period. The extension of time shall equal the time during which the
defendant was incarcerated; (5) Any offense for which the defendant has been pardoned shall not be deemed to be a previous qualifying misdemeanor or felony conviction; and (6) When multiple sentences are imposed at the same time for multiple convictions, the multiple convictions shall be deemed to constitute one conviction.
Finally, nothing in section 240.76 shall be construed to prosecution or conviction for any other offense, a necessary element of which is a previous conviction for an offense.
Section five provides that this act shall take effect immediately.
EXISTING LAW: Under current law, offenders who commit multiple felonies reasonably receive enhanced penalties for their repeated felony conduct, offenders who commit multiple misdemeanors, on the other hand, generally do not.
JUSTIFICATION: Public safety is better protected and promoted by requiring persistent offenders to serve enhanced sentences. While there have been historic decreases in crime across New York State since 1995, repeat misdemeanors continue to plague our streets and communities, often receiving little or no punishment for the offenses they commit. while current law adequately recognizes the harm caused by repeat felony offenders by mandating enhanced penalties, it does not adequately address the problem of misdemeanor recidivism.
A significant majority of those convicted of misdemeanors every year have at least one prior conviction and disturbingly large minority had more than ten prior convictions. Although some of these offenders have criminal histories dating back to the 1970s, few have received meaningful sanctions. Regrettably, current law has afforded these offenders a license to commit misdemeanor offenses virtually without penalty. For many of these offenders, crime is a way of life. Their rap sheets are their resumes and although their crimes are not traditional felony crimes, the constant and repetitive nature of their offenses can be equally damaging to society.
Law-abiding citizens should not be forced to endure the crimes of chronic misdemeanor offenders. The bill, therefore, creates the new felony offense of aggravated criminal conduct and punishes appropriately those who repeatedly commit misdemeanor offenses. Under the bill, an offender who commits his or her fourth misdemeanor (or felony) after having been previously convicted of three or more misdemeanors (or felonies) within the previous ten years will be punished as an E felon and will face up to four years in state prison.
Recognizing the challenges prosecutors may face ensuring that repeat misdemeanor cases are handled properly, the bill also provides that criminal history records, when certified by a person designated by the Commissioner of the Division of Criminal Justice Services as the person to certify such records, including electronic transmissions of such records, are admissible in felony hearings and grand jury proceedings.
It is clear that the current system that has allowed persistent misdemeanor offenders to commit their crimes with minimal or meaningless sanctions is intolerable. Like repeat felons, repeat misdemeanor offenders must face enhanced penalties commensurate with their conduct.
LEGISLATIVE HISTORY: 2012: S.643-A - Referred to Codes 2011: S.643 Passed Senate 2009-10: S.2105- Referred to Codes both years 2007-8: S.2050 -Referred to Codes both years 2005-6: S.2884 -Referred to Codes both years 2004: S.2050 - Referred to Codes 2003: S.2050 - Passed Senate 2001-2: S.2616 - Referred to Codes both years 2000: S.2943 - 3rd Reading 1999: S.2943 - Passed Senate 1997-8: S.252 - Referred to Codes both years 1996-7: S.4893 - referred to Codes both years
FISCAL IMPLICATIONS: It is not anticipated that this legislation will have any significant fiscal impact
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 3074 2013-2014 Regular Sessions IN SENATE January 29, 2013 ___________Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law and the penal law, in relation to aggravated criminal conduct THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 8 of section 180.60 of the criminal procedure law, as amended by chapter 307 of the laws of 1975, is amended to read as follows: 8. Upon such a hearing, only non-hearsay evidence is admissible to demonstrate reasonable cause to believe that the defendant committed a felony; except that reports of experts and technicians in professional and scientific fields and sworn statements, FORMS OR RECORDS of the kinds specified in subdivisions two
[and], three AND THREE-A of section 190.30 are admissible to the same extent as in a grand jury proceeding, unless the court determines, upon application of the defendant, that such hearsay evidence is, under the particular circumstances of the case, not sufficiently reliable, in which case the court shall require that the witness testify in person and be subject to cross-examination. S 2. Subdivision 2-a of section 190.30 of the criminal procedure law, as amended by chapter 453 of the laws of 1999, is amended to read as follows: 2-a. When the electronic transmission of a certified report, FORM OR RECORD, or certified copy thereof, of the kind described in subdivision two or three-a of this section or a sworn statement or copy thereof, of the kind described in subdivision three of this section results in a written document, such written document may be received in such grand jury proceeding provided that: (a) a transmittal memorandum completed by the person sending the report, FORM OR RECORD contains a certification that the report, FORM OR RECORD has not been altered and a description of the report, FORM OR RECORD specifying the number of pages; and (b)EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07247-01-3 S. 3074 2
the person who receives the electronically transmitted document certi- fies that such document and transmittal memorandum were so received; and (c) a certified report, FORM OR RECORD or a certified copy or sworn statement or sworn copy thereof is filed with the court within twenty days following arraignment upon the indictment; and (d) where such writ- ten document is a sworn statement or sworn copy thereof of the kind described in subdivision three of this section, such sworn statement or sworn copy thereof is also provided to the defendant or his counsel within twenty days following arraignment upon the indictment. S 3. Subdivision 3-a of section 190.30 of the criminal procedure law, as added by chapter 453 of the laws of 1999, is amended to read as follows: 3-a. A sex offender registration form, sex offender registration continuation/supplemental form, sex offender registry address verifica- tion form, sex offender change of address form, CRIMINAL HISTORY RECORD, or a copy of such form OR RECORD, maintained by the division of criminal justice services concerning an individual who is the subject of a grand jury proceeding, may, when certified by a person designated by the commissioner of the division of criminal justice services as the person to certify such FORMS OR records, as a true copy thereof, be received in such grand jury proceeding as evidence of the facts stated therein. S 4. The penal law is amended by adding a new section 240.76 to read as follows: S 240.76 AGGRAVATED CRIMINAL CONDUCT. 1. A PERSON IS GUILTY OF AGGRAVATED CRIMINAL CONDUCT WHEN SUCH PERSON COMMITS A CLASS A MISDEMEANOR DEFINED IN THIS CHAPTER AFTER HAVING BEEN PREVIOUSLY SUBJECTED TO THREE OR MORE QUALIFYING MISDEMEANOR OR FELONY CONVICTIONS WITHIN THE PRECEDING TEN YEARS. 2. THE PROVISIONS OF SECTION 200.60 OF THE CRIMINAL PROCEDURE LAW SHALL APPLY TO ANY PROSECUTION UNDER THIS SECTION. 3. FOR THE PURPOSES OF THIS SECTION, IN DETERMINING WHETHER A PERSON HAS BEEN PREVIOUSLY SUBJECTED TO THREE OR MORE QUALIFYING MISDEMEANOR OR FELONY CONVICTIONS WITHIN THE PRECEDING TEN YEARS, THE FOLLOWING CRITE- RIA SHALL APPLY: (A) EACH CONVICTION MUST HAVE BEEN IN THIS STATE OF A CLASS A MISDE- MEANOR DEFINED IN THIS CHAPTER OR OF A FELONY, OR OF A CRIME IN ANY OTHER JURISDICTION FOR WHICH A SENTENCE TO A TERM OF IMPRISONMENT OF AT LEAST ONE YEAR OR A SENTENCE OF DEATH WAS AUTHORIZED AND IS AUTHORIZED IN THIS STATE IRRESPECTIVE OF WHETHER SUCH SENTENCE WAS IMPOSED; (B) SENTENCE UPON EACH SUCH PRIOR CONVICTION MUST HAVE BEEN IMPOSED BEFORE COMMISSION OF THE PRESENT MISDEMEANOR; (C) SUSPENDED SENTENCE, SUSPENDED EXECUTION OF SENTENCE, SENTENCE OF PROBATION, SENTENCE OF PAROLE SUPERVISION, AND SENTENCE OF CONDITIONAL DISCHARGE OR OF UNCONDITIONAL DISCHARGE SHALL BE DEEMED TO BE A SENTENCE; (D) EXCEPT AS PROVIDED IN PARAGRAPH (E) OF THIS SUBDIVISION, EACH SENTENCE MUST HAVE BEEN IMPOSED NOT MORE THAN TEN YEARS BEFORE COMMIS- SION OF THE PRESENT MISDEMEANOR; (E) IN CALCULATING THE TEN YEAR PERIOD UNDER PARAGRAPH (D) OF THIS SUBDIVISION, ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCER- ATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF ANY OF THE PREVI- OUS CONVICTIONS AND THE TIME OF COMMISSION OF THE PRESENT MISDEMEANOR SHALL BE EXCLUDED AND SUCH TEN YEAR PERIOD SHALL BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME SERVED;S. 3074 3
(F) AN OFFENSE FOR WHICH THE DEFENDANT HAS BEEN PARDONED ON THE GROUND OF INNOCENCE SHALL NOT BE DEEMED A PREVIOUS MISDEMEANOR OR FELONY CONVICTION; (G) WHEN MULTIPLE SENTENCES FOR TWO OR MORE CONVICTIONS WERE IMPOSED AT THE SAME TIME, ALL CONVICTIONS SHALL BE DEEMED TO CONSTITUTE ONLY ONE CONVICTION. 4. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO PRECLUDE A PROSECUTION OR CONVICTION FOR ANY OTHER OFFENSE, A NECESSARY ELEMENT OF WHICH IS A PREVIOUS CONVICTION FOR AN OFFENSE. AGGRAVATED CRIMINAL CONDUCT IS A CLASS E FELONY. S 5. This act shall take effect immediately.