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Assembly Actions -
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| Jan 08, 2014 |
referred to codes |
| Apr 22, 2013 |
referred to codes |
Senate Bill S4743
2013-2014 Legislative Session
Relates to the definition of term "sexual intercourse" as such term applies to sex offenses and establishes the crimes of anal rape and oral rape; repealer
download bill text pdfSponsored By
(R, C, IP) Senate District
Archive: Last Bill Status - In Senate Committee Codes Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
co-Sponsors
(R, C, IP) Senate District
2013-S4743 (ACTIVE) - Details
- Current Committee:
- Senate Codes
- Law Section:
- Penal Law
- Laws Affected:
- Rpld §235.00 sub 7, amd Pen L, generally; amd CP L, generally; amd §123, Ag & Mkts L; amd §§213-c & 215, CPLR; amd §§117, 301.2 & 308.1, Fam Ct Act; amd §4, Judy L; amd §168-a, Cor L
2013-S4743 (ACTIVE) - Sponsor Memo
BILL NUMBER:S4743
TITLE OF BILL: An act to amend the penal law, in relation to the
definition of the term "sexual intercourse" as such term applies to
sex offenses; and to amend the penal law, the criminal procedure law,
the agriculture and markets law, the civil practice law and rules, the
family court act, the judiciary law and the correction law, in
relation to establishing the crimes of anal rape and oral rape to
replace crimes involving criminal sexual acts; and to repeal certain
provisions of the penal law relating thereto
PURPOSE:
This Act shall be known as the "Rape Victims Equality Act". This bill
relates to the definition of the term "sexual intercourse" as such
term applies to sex offenses and establishes the crime of anal rape
and oral rape; repealer
SUMMARY OF PROVISIONS:
Section 1 redefines sexual intercourse as any contact between persons
that consists of contact between the penis and the vagina or vulva.
Sections 2 through 4 amend penal law sections 130.40, 130.45 and
130.50 "criminal sexual act in the third degree", "criminal sexual act
in the second degree" and "criminal sexual act in the first degree" to
exclude any reference to "oral sexual conduct" and redefine these sections as more specialized offenses of "anal rape in the third degree", "anal rape in the second degree," and "anal rape in the first degree", respectively. Section 5 adds a new penal law section 130.37, "oral rape in the third degree". A person is guilty of oral rape in the third degree, a class E felony, when he or she engages in oral sexual conduct with a person who is incapable of consent for a reason other than being less than 17; or when a person 21 or older engages in oral sexual conduct with a person less than 17; or when a person engages in oral sexual conduct without another person's consent where the lack of consent is by reason of some factor other than the incapacity to consent. Section 6 adds a new penal law section 130.38, "oral rape in the second degree". A person is guilty of oral rape in the second degree, a class D felony, when he or she engages in oral sexual conduct with a person less than 15 years old or engages in oral sexual conduct with another person who is incapable of consent because they are mentally disabled or mentally incapacitated. The fact that the victim was less than 4 years older than the victim at the time of the act shall constitute an affirmative defense. Section 7 adds a new penal law section 130.39, "oral rape in the first degree". A person is guilty of oral rape in the second degree, a class B felony, when he or she engages in oral sexual conduct with a person by forcible compulsion or who is incapable of consent due to being physically helpless; or who is less than 11 years old; or who is less than 13 years old and the actor is 18 years old or older. Sections 8 through 47 amend various sections of the penal law, criminal procedure law, the civil practice law and rules and the family court act to make technical conforming changes to remove references made to "oral sexual conduct" and "criminal sexual act" and replace them with corresponding references to the appropriate anal rape and oral rape provisions. Section 48 amends subparagraph (i) of Paragraph (a) of subdivision 3 of section 168-a of the correction law to include penal law sections 130.37 and 130.38. Section 49 amends subparagraph (i) of paragraph (a) of subdivision 3 of section 168-a of the correction law to include Penal Law Section 130.39. Section 50 provides the effective date. JUSTIFICATION: On March 28, 2012, a Justice of the New York State Supreme Court declared a mistrial on the rape charge against former New York City Police Officer Michael Pena. Pena was convicted of several other charges for holding a school teacher at gunpoint, threatening her life and committing criminal sexual acts against her. Pena was not convicted of rape despite overwhelming evidence of forcible, non-consensual sexual contact with the young school teacher who was on her way to her first day of school at her first teaching job. It is galling that in the face of evidence of the defendant's semen in the victim's underwear, redness to her genitals, eyewitness testimony and the victim's own account of the pain of the attack, Pena was not convicted of rape at trial. Despite this overwhelming evidence of force, bodily fluids and injury, three jurors voted not to convict because an element of rape as currently defined in state statute requires evidence of penetration by the penis into the vagina. These jurors were not able to convict Mr. Pena of the top charge of rape because they were not convinced such penetration of the vagina took place. This bill eliminates the requirement of penetration in a vaginal rape and makes the elements of Rape equivalent to those of criminal sexual act which only requires contact of the genitals to the month or anus and force to complete the crime. This bill has been introduced at the recommendation of the District Attorneys Association of the State of New York. Specifically, they recommend that Article 130 of the Penal Law should be amended to address the inconsistent requirement that penetration be proved as an element of Rape, while mere contact is sufficient to prove the current crime of Criminal Sexual Act (the crime formerly known as "Sodomy"). The District Attorneys Association states that "while forcible, non-consensual contact between a penis and the mouth or anus is currently a class B violent felony; the same contact with a woman's genitalia constitutes only a D felony. There is no valid reason why one is worthy of a potential 25-year sentence, while the other only merits a maximum of 7 years." By redefining sexual intercourse-as an element of the crime of Rape- as any contact between the penis and vagina or vulva, rather than the current definition, which requires penetration, this bill would eliminate the disparity in possible punishment between Rape and other crimes, and provide equal protection against forcible sexual attack to all intimate parts of a victim's body. Further, the bill addresses another sensitive and often emotional issue for victims of sexual assault-that some of the current nomenclature of the penal law does not clearly describe the true nature of the violence suffered by victims. In the Pena Case, in addition to rape, the victim suffered a sexual assault that is defined as a "Criminal Sexual Act" under the current law. Although the perpetrator was convicted of this crime, because the term "Criminal Sexual Act" is non-descriptive, the victim's status as a victim of severe sexual assault was questioned. To assure the victim's justice, these acts of sexual assault must be described in a manner that will provide juries, and the public, a better understanding of the true nature of these crimes. Thus, this bill amends the penal law such that the acts currently prohibited by the crimes of Criminal Sexual Acts, in the first, second and third degrees are renamed as Anal Rape and Oral Rape, in the first, second and third degrees, and separates such into new separate sections of the penal law to address each of these horrific acts. By providing these new sections of the law which separately define each of these acts, the bill ensures that if more than one of these acts occur during the course of sexual assault, each act is treated as distinct from the other(s). The amendment is significant because it assures that a convicted perpetrator can be held accountable with the potential of consecutive sentences for each crime committed during a sexual assault. Such a concern was raised by the recent Court of Appeals decision in People v. Alonzo, 16 N.Y.3d 267, which held that the legislative intent to provide for distinct sentences for separate acts committed during the commission of a criminal event could be best evidenced by establishing separate statutes with distinct definitions. To that end, and rejecting proposals to include all acts of sexual assault under the definition of Rape, this bill provides separate statutes for each of these criminal acts. Rape, Anal Rape, and Oral Rape will be stand alone sections of the penal law and make clear to the courts that the intent of the Legislature is to establish these acts as separate crimes, so that each crime is eligible, when warranted, for the more stringent sentence of consecutive prison terms upon conviction. By unifying the standard of proof for all sexual contact constituting a severe sexual assault, and by distinctly redefining "Criminal Sexual Conduct" as Anal Rape and Oral Rape, the Rape Victims Equality Act would give equal protection to women and all victims of sexual assault, while assuring that the courts will have the authority to appropriately sentence sex offenders. LEGISLATIVE HISTORY: New Bill. FISCAL IMPLICATIONS: None to the state. EFFECTIVE DATE: This act shall take effect immediately; provided that section fourteen of this act shall take effect on the same date and in the same manner as section 27 of chapter 1 of the laws of 2013, takes effect.
2013-S4743 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
4743
2013-2014 Regular Sessions
I N S E N A T E
April 22, 2013
___________
Introduced by Sens. YOUNG, GOLDEN -- read twice and ordered printed, and
when printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to the definition of the term
"sexual intercourse" as such term applies to sex offenses; and to
amend the penal law, the criminal procedure law, the agriculture and
markets law, the civil practice law and rules, the family court act,
the judiciary law and the correction law, in relation to establishing
the crimes of anal rape and oral rape to replace crimes involving
criminal sexual acts; 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:
Section 1. Subdivision 1 of section 130.00 of the penal law is amended
to read as follows:
1. "Sexual intercourse" has its ordinary meaning and [occurs upon any
penetration, however slight] MEANS CONDUCT BETWEEN PERSONS THAT CONSISTS
OF CONTACT BETWEEN THE PENIS AND THE VAGINA OR VULVA.
S 2. Section 130.40 of the penal law, as amended by chapter 264 of the
laws of 2003, is amended to read as follows:
S 130.40 [Criminal sexual act] ANAL RAPE in the third degree.
A person is guilty of [criminal sexual act] ANAL RAPE in the third
degree when:
1. He or she engages in [oral sexual conduct or] anal sexual conduct
with a person who is incapable of consent by reason of some factor other
than being less than seventeen years old;
2. Being twenty-one years old or more, he or she engages in [oral
sexual conduct or] anal sexual conduct with a person less than seventeen
years old; or
3. He or she engages in [oral sexual conduct or] anal sexual conduct
with another person without such person's consent where such lack of
consent is by reason of some factor other than incapacity to consent.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09199-02-3
S. 4743 2 [Criminal sexual act] ANAL RAPE in the third degree is a class E felo- ny. S 3. Section 130.45 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: S 130.45 [Criminal sexual act] ANAL RAPE in the second degree. A person is guilty of [criminal sexual act] ANAL RAPE in the second degree when: 1. being eighteen years old or more, he or she engages in [oral sexual conduct or] anal sexual conduct with another person less than fifteen years old; or 2. he or she engages in [oral sexual conduct or] anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It shall be an affirmative defense to the crime of [criminal sexual act] ANAL RAPE in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act. [Criminal sexual act] ANAL RAPE in the second degree is a class D felony. S 4. Section 130.50 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: S 130.50 [Criminal sexual act] ANAL RAPE in the first degree. A person is guilty of [criminal sexual act] ANAL RAPE in the first degree when he or she engages in [oral sexual conduct or] anal sexual conduct with another person: 1. By forcible compulsion; or 2. Who is incapable of consent by reason of being physically helpless; or 3. Who is less than eleven years old; or 4. Who is less than thirteen years old and the actor is eighteen years old or more. [Criminal sexual act] ANAL RAPE in the first degree is a class B felo- ny. S 5. The penal law is amended by adding a new section 130.37 to read as follows: S 130.37 ORAL RAPE IN THE THIRD DEGREE. A PERSON IS GUILTY OF ORAL RAPE IN THE THIRD DEGREE WHEN: 1. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT WITH A PERSON WHO IS INCA- PABLE OF CONSENT BY REASON OF SOME FACTOR OTHER THAN BEING LESS THAN SEVENTEEN YEARS OLD; 2. BEING TWENTY-ONE YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL SEXU- AL CONDUCT WITH A PERSON LESS THAN SEVENTEEN YEARS OLD; OR 3. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT WITH ANOTHER PERSON WITH- OUT SUCH PERSON'S CONSENT WHERE SUCH LACK OF CONSENT IS BY REASON OF SOME FACTOR OTHER THAN INCAPACITY TO CONSENT. ORAL RAPE IN THE THIRD DEGREE IS A CLASS E FELONY. S 6. The penal law is amended by adding a new section 130.38 to read as follows: S 130.38 ORAL RAPE IN THE SECOND DEGREE. A PERSON IS GUILTY OF ORAL RAPE IN THE SECOND DEGREE WHEN: 1. BEING EIGHTEEN YEARS OLD OR MORE, HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT WITH ANOTHER PERSON LESS THAN FIFTEEN YEARS OLD; OR 2. HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT WITH ANOTHER PERSON WHO IS INCAPABLE OF CONSENT BY REASON OF BEING MENTALLY DISABLED OR MENTALLY INCAPACITATED. S. 4743 3 IT SHALL BE AN AFFIRMATIVE DEFENSE TO THE CRIME OF ORAL RAPE IN THE SECOND DEGREE AS DEFINED IN SUBDIVISION ONE OF THIS SECTION THAT THE DEFENDANT WAS LESS THAN FOUR YEARS OLDER THAN THE VICTIM AT THE TIME OF THE ACT. ORAL RAPE IN THE SECOND DEGREE IS A CLASS D FELONY. S 7. The penal law is amended by adding a new section 130.39 to read as follows: S 130.39 ORAL RAPE IN THE FIRST DEGREE. A PERSON IS GUILTY OF ORAL RAPE IN THE FIRST DEGREE WHEN HE OR SHE ENGAGES IN ORAL SEXUAL CONDUCT WITH ANOTHER PERSON: 1. BY FORCIBLE COMPULSION; OR 2. WHO IS INCAPABLE OF CONSENT BY REASON OF BEING PHYSICALLY HELPLESS; OR 3. WHO IS LESS THAN ELEVEN YEARS OLD; OR 4. WHO IS LESS THAN THIRTEEN YEARS OLD AND THE ACTOR IS EIGHTEEN YEARS OLD OR MORE. ORAL RAPE IN THE FIRST DEGREE IS A CLASS B FELONY. S 8. Paragraph 2 of subdivision 18 of section 10.00 of the penal law, as amended by chapter 7 of the laws of 2007, is amended to read as follows: (2) a person fourteen or fifteen years old who is criminally responsi- ble for acts constituting the crimes defined in subdivisions one and two of section 125.25 (murder in the second degree) and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; section 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and two of section 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 ([criminal sexual act] ANAL RAPE in the first degree); SUBDIVISIONS ONE AND TWO OF SECTION 130.39 (ORAL RAPE IN THE FIRST DEGREE); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) of this chapter; or section 265.03 of this chapter, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter; or defined in this chapter as an attempt to commit murder in the second degree or kidnapping in the first degree, or such conduct as a sexually motivated felony, where authorized pursu- ant to section 130.91 of [the penal law] THIS CHAPTER. S 9. Subdivision 2 of section 30.00 of the penal law, as amended by chapter 7 of the laws of 2007, is amended to read as follows: 2. A person thirteen, fourteen or fifteen years of age is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible or for such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of [the penal law] THIS CHAPTER; and a person fourteen or fifteen years of age is criminally responsible for acts constituting the crimes defined in section 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and two of section 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); subdivisions one and two of section 130.35 (rape in the first S. 4743 4 degree); subdivisions one and two of section 130.50 ([criminal sexual act] ANAL RAPE in the first degree); SUBDIVISIONS ONE AND TWO OF SECTION 130.39 (ORAL RAPE IN THE FIRST DEGREE); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) of this chapter; or section 265.03 of this chapter, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter; or defined in this chapter as an attempt to commit murder in the second degree or kidnapping in the first degree, or for such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of [the penal law] THIS CHAPTER. S 10. Paragraph (b) of subdivision 2 of section 35.15 of the penal law, as amended by chapter 511 of the laws of 2004, is amended to read as follows: (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible [criminal sexual act] ANAL RAPE, FORCIBLE ORAL RAPE or robbery; or S 11. Paragraph (b) of subdivision 4 of section 35.30 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: (b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape [or], forcible [criminal sexual act] ANAL RAPE OR FORCIBLE ORAL RAPE and who is in immediate flight therefrom. S 12. Paragraph (a) of subdivision 1 of section 70.02 of the penal law, as amended by chapter 320 of the laws of 2006, is amended to read as follows: (a) Class B violent felony offenses: an attempt to commit the class A-I felonies of murder in the second degree as defined in section 125.25, kidnapping in the first degree as defined in section 135.25, and arson in the first degree as defined in section 150.20; manslaughter in the first degree as defined in section 125.20, aggravated manslaughter in the first degree as defined in section 125.22, rape in the first degree as defined in section 130.35, [criminal sexual act] ANAL RAPE in the first degree as defined in section 130.50, ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.39, aggravated sexual abuse in the first degree as defined in section 130.70, course of sexual conduct against a child in the first degree as defined in section 130.75; assault in the first degree as defined in section 120.10, kidnapping in the second degree as defined in section 135.20, burglary in the first degree as defined in section 140.30, arson in the second degree as defined in section 150.15, robbery in the first degree as defined in section 160.15, incest in the first degree as defined in section 255.27, criminal possession of a weapon in the first degree as defined in section 265.04, criminal use of a firearm in the first degree as defined in section 265.09, criminal sale of a firearm in the first degree as defined in section 265.13, aggravated assault upon a police officer or a peace officer as defined in section 120.11, gang assault in the first degree as defined in section 120.07, intimidating a victim or witness in the first degree as defined in section 215.17, hindering prosecution of terrorism in the first degree as defined in section 490.35, criminal possession of a chemical weapon or biological weapon in the second degree as defined in section 490.40, and criminal use of a chemical S. 4743 5 weapon or biological weapon in the third degree as defined in section 490.47. S 13. Paragraph (c) of subdivision 1 of section 70.02 of the penal law, as amended by chapter 405 of the laws of 2010, is amended to read as follows: (c) Class D violent felony offenses: an attempt to commit any of the class C felonies set forth in paragraph (b); reckless assault of a child as defined in section 120.02, assault in the second degree as defined in section 120.05, menacing a police officer or peace officer as defined in section 120.18, stalking in the first degree, as defined in subdivision one of section 120.60, strangulation in the second degree as defined in section 121.12, rape in the second degree as defined in section 130.30, [criminal sexual act] ANAL RAPE in the second degree as defined in section 130.45, ORAL RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.38, sexual abuse in the first degree as defined in section 130.65, course of sexual conduct against a child in the second degree as defined in section 130.80, aggravated sexual abuse in the third degree as defined in section 130.66, facilitating a sex offense with a controlled substance as defined in section 130.90, criminal possession of a weapon in the third degree as defined in subdivision five, six, seven or eight of section 265.02, criminal sale of a firearm in the third degree as defined in section 265.11, intimidating a victim or witness in the second degree as defined in section 215.16, soliciting or providing support for an act of terrorism in the second degree as defined in section 490.10, and making a terroristic threat as defined in section 490.20, falsely reporting an incident in the first degree as defined in section 240.60, placing a false bomb or hazardous substance in the first degree as defined in section 240.62, placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility or enclosed shopping mall as defined in section 240.63, and aggravated unpermitted use of indoor pyrotechnics in the first degree as defined in section 405.18. S 14. Paragraph (c) of subdivision 1 of section 70.02 of the penal law, as amended by chapter 1 of the laws of 2013, is amended to read as follows: (c) Class D violent felony offenses: an attempt to commit any of the class C felonies set forth in paragraph (b); reckless assault of a child as defined in section 120.02, assault in the second degree as defined in section 120.05, menacing a police officer or peace officer as defined in section 120.18, stalking in the first degree, as defined in subdivision one of section 120.60, strangulation in the second degree as defined in section 121.12, rape in the second degree as defined in section 130.30, [criminal sexual act] ANAL RAPE in the second degree as defined in section 130.45, ORAL RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.38, sexual abuse in the first degree as defined in section 130.65, course of sexual conduct against a child in the second degree as defined in section 130.80, aggravated sexual abuse in the third degree as defined in section 130.66, facilitating a sex offense with a controlled substance as defined in section 130.90, criminal possession of a weapon in the third degree as defined in subdivision five, six, seven, eight, nine or ten of section 265.02, criminal sale of a firearm in the third degree as defined in section 265.11, intimidating a victim or witness in the second degree as defined in section 215.16, soliciting or providing support for an act of terrorism in the second degree as defined in section 490.10, and making a terroristic threat as defined in section 490.20, falsely reporting an incident in the first degree as defined in S. 4743 6 section 240.60, placing a false bomb or hazardous substance in the first degree as defined in section 240.62, placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility or enclosed shopping mall as defined in section 240.63, and aggravated unpermitted use of indoor pyrotechnics in the first degree as defined in section 405.18. S 15. The opening paragraph of subdivision 3 of section 125.25 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, [criminal sexual act] ANAL RAPE in the first degree, ORAL RAPE IN THE FIRST DEGREE, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirma- tive defense that the defendant: S 16. Subdivision 5 of section 125.25 of the penal law, as amended by chapter 320 of the laws of 2006, is amended to read as follows: 5. Being eighteen years old or more, while in the course of committing rape in the first, second or third degree, [criminal sexual act] ANAL RAPE in the first, second or third degree, ORAL RAPE IN THE FIRST, SECOND OR THIRD DEGREE, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person. S 17. Subparagraph (vii) of paragraph (a) of subdivision 1 of section 125.27 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: (vii) the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery, burglary in the first degree or second degree, kidnapping in the first degree, arson in the first degree or second degree, rape in the first degree, [criminal sexual act] ANAL RAPE in the first degree, ORAL RAPE IN THE FIRST DEGREE, sexual abuse in the first degree, aggravated sexual abuse in the first degree or escape in the first degree, or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime or in the course of and furtherance of immediate flight after attempting to commit the crime of murder in the second degree; provided however, the victim is not a participant in one of the aforementioned crimes and, provided further that, unless the defendant's criminal liability under this subparagraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant's criminal liabil- ity is based upon the conduct of another pursuant to section 20.00 of this chapter; or S 18. Paragraph (d) of subdivision 2 of section 130.05 of the penal law, as amended by chapter 40 of the laws of 2004, is amended to read as follows: (d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, [or criminal sexual act] ANAL RAPE in the third degree as defined in subdivision three of section S. 4743 7 130.40, OR ORAL RAPE IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 130.37, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circum- stances. S 19. Paragraph (h) of subdivision 3 of section 130.05 of the penal law, as amended by section 2 of part G of chapter 501 of the laws of 2012, is amended to read as follows: (h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, [criminal sexual act] ANAL RAPE in the third degree as defined in section 130.40, ORAL RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.37, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or S 20. Subdivision 3 of section 130.10 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: 3. In any prosecution for the crime of rape in the third degree as defined in section 130.25, [criminal sexual act] ANAL RAPE in the third degree as defined in section 130.40, ORAL RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.37, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55 in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision three of section 130.05 of this article it shall be an affirmative defense that the client or patient consented to such conduct charged after having been expressly advised by the health care or mental health care provider that such conduct was not performed for a valid medical purpose. S 21. The opening paragraph and subdivision 2 of section 130.95 of the penal law, as added by chapter 107 of the laws of 2006, are amended to read as follows: A person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree, [criminal sexual act] ANAL RAPE in the first degree, ORAL RAPE 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: 2. He or she has engaged in conduct constituting the crime of rape in the first degree, [criminal sexual act] ANAL RAPE in the first degree, ORAL RAPE 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 S 22. The opening paragraph of section 130.96 of the penal law, as added by chapter 107 of the laws of 2006, is amended to read as follows: 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] ANAL RAPE in the first degree, ORAL RAPE 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. S 23. Subdivision 1 of section 235.00 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: S. 4743 8 1. "Obscene." Any material or performance is "obscene" if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, [criminal sexual act] ANAL RAPE, ORAL RAPE, sexual bestiality, masturbation, sadism, maso- chism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scien- tific value. Predominant appeal shall be judged with reference to ordi- nary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience. S 24. Subdivision 7 of section 235.00 of the penal law is REPEALED. S 25. Subdivision 2 of section 240.75 of the penal law, as added by section 2 of part D of chapter 491 of the laws of 2012, is amended to read as follows: 2. A "specified offense" is an offense defined in section 120.00 (assault in the third degree); section 120.05 (assault in the second degree); section 120.10 (assault in the first degree); section 120.13 (menacing in the first degree); section 120.14 (menacing in the second degree); section 120.15 (menacing in the third degree); section 120.20 (reckless endangerment in the second degree); section 120.25 (reckless endangerment in the first degree); section 120.45 (stalking in the fourth degree); section 120.50 (stalking in the third degree); section 120.55 (stalking in the second degree); section 120.60 (stalking in the first degree); section 121.11 (criminal obstruction of breathing or blood circulation); section 121.12 (strangulation in the second degree); section 121.13 (strangulation in the first degree); subdivision one of section 125.15 (manslaughter in the second degree); subdivision one, two or four of section 125.20 (manslaughter in the first degree); section 125.25 (murder in the second degree); section 130.20 (sexual miscon- duct); section 130.30 (rape in the second degree); section 130.35 (rape in the first degree); section 130.40 ([criminal sexual act] ANAL RAPE in the third degree); SECTION 130.37 (ORAL RAPE IN THE THIRD DEGREE); section 130.45 ([criminal sexual act] ANAL RAPE in the second degree); SECTION 130.38 (ORAL RAPE IN THE SECOND DEGREE); section 130.50 ([crimi- nal sexual act] ANAL RAPE in the first degree); SECTION 130.39 (ORAL RAPE IN THE FIRST DEGREE); section 130.52 (forcible touching); section 130.53 (persistent sexual abuse); section 130.55 (sexual abuse in the third degree); section 130.60 (sexual abuse in the second degree); section 130.65 (sexual abuse in the first degree); section 130.66 (aggravated sexual abuse in the third degree); section 130.67 (aggra- vated sexual abuse in the second degree); section 130.70 (aggravated sexual abuse in the first degree); section 130.91 (sexually motivated felony); section 130.95 (predatory sexual assault); section 130.96 (predatory sexual assault against a child); section 135.05 (unlawful imprisonment in the second degree); section 135.10 (unlawful imprison- ment in the first degree); section 135.60 (coercion in the second degree); section 135.65 (coercion in the first degree); section 140.20 (burglary in the third degree); section 140.25 (burglary in the second degree); section 140.30 (burglary in the first degree); section 145.00 (criminal mischief in the fourth degree); section 145.05 (criminal mischief in the third degree); section 145.10 (criminal mischief in the second degree); section 145.12 (criminal mischief in the first degree); section 145.14 (criminal tampering in the third degree); section 215.50 (criminal contempt in the second degree); section 215.51 (criminal S. 4743 9 contempt in the first degree); section 215.52 (aggravated criminal contempt); section 240.25 (harassment in the first degree); subdivision one, two or four of section 240.30 (aggravated harassment in the second degree); aggravated family offense as defined in this section or any attempt or conspiracy to commit any of the foregoing offenses where the defendant and the person against whom the offense was committed were members of the same family or household as defined in subdivision one of section 530.11 of the criminal procedure law. S 26. The opening paragraph of section 255.26 of the penal law, as added by chapter 320 of the laws of 2006, is amended to read as follows: A person is guilty of incest in the second degree when he or she commits the crime of rape in the second degree, as defined in section 130.30 of this part, [or criminal sexual act] ANAL RAPE in the second degree, as defined in section 130.45 of this part, OR ORAL RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.38 OF THIS PART, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece. S 27. The opening paragraph of section 255.27 of the penal law, as added by chapter 320 of the laws of 2006, is amended to read as follows: A person is guilty of incest in the first degree when he or she commits the crime of rape in the first degree, as defined in subdivision three or four of section 130.35 of this part, [or criminal sexual act] ANAL RAPE in the first degree, as defined in subdivision three or four of section 130.50 of this part, OR ORAL RAPE IN THE FIRST DEGREE, AS DEFINED IN SUBDIVISION THREE OR FOUR OF SECTION 130.39 OF THIS PART, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew or niece. S 28. Paragraph (a) of subdivision 17 of section 265.00 of the penal law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: (a) any of the following offenses defined in the former penal law as in force and effect immediately prior to September first, nineteen hundred sixty-seven: illegally using, carrying or possessing a pistol or other dangerous weapon; making or possessing burglar's instruments; buying or receiving stolen property; unlawful entry of a building; aiding escape from prison; that kind of disorderly conduct defined in subdivisions six and eight of section seven hundred twenty-two of such former penal law; violations of sections four hundred eighty-three, four hundred eighty-three-b, four hundred eighty-four-h and article one hundred six of such former penal law; that kind of [criminal sexual act] ANAL RAPE, ORAL RAPE or rape which was designated as a misdemeanor; violation of section seventeen hundred forty-seven-d and seventeen hundred forty-seven-e of such former penal law; any violation of any provision of article thirty-three of the public health law relating to narcotic drugs which was defined as a misdemeanor by section seventeen hundred fifty-one-a of such former penal law, and any violation of any provision of article thirty-three-A of the public health law relating to depressant and stimulant drugs which was defined as a misdemeanor by section seventeen hundred forty-seven-b of such former penal law. S 29. Subdivision 3 of section 485.05 of the penal law, as amended by chapter 405 of the laws of 2010, is amended to read as follows: 3. A "specified offense" is an offense defined by any of the following provisions of this chapter: section 120.00 (assault in the third degree); section 120.05 (assault in the second degree); section 120.10 S. 4743 10 (assault in the first degree); section 120.12 (aggravated assault upon a person less than eleven years old); section 120.13 (menacing in the first degree); section 120.14 (menacing in the second degree); section 120.15 (menacing in the third degree); section 120.20 (reckless endan- germent in the second degree); section 120.25 (reckless endangerment in the first degree); section 121.12 (strangulation in the second degree); section 121.13 (strangulation in the first degree); subdivision one of section 125.15 (manslaughter in the second degree); subdivision one, two or four of section 125.20 (manslaughter in the first degree); section 125.25 (murder in the second degree); section 120.45 (stalking in the fourth degree); section 120.50 (stalking in the third degree); section 120.55 (stalking in the second degree); section 120.60 (stalking in the first degree); subdivision one of section 130.35 (rape in the first degree); subdivision one of section 130.50 ([criminal sexual act] ANAL RAPE in the first degree); SUBDIVISION ONE OF SECTION 130.39 (ORAL RAPE IN THE FIRST DEGREE); subdivision one of section 130.65 (sexual abuse in the first degree); paragraph (a) of subdivision one of section 130.67 (aggravated sexual abuse in the second degree); paragraph (a) of subdi- vision one of section 130.70 (aggravated sexual abuse in the first degree); section 135.05 (unlawful imprisonment in the second degree); section 135.10 (unlawful imprisonment in the first degree); section 135.20 (kidnapping in the second degree); section 135.25 (kidnapping in the first degree); section 135.60 (coercion in the second degree); section 135.65 (coercion in the first degree); section 140.10 (criminal trespass in the third degree); section 140.15 (criminal trespass in the second degree); section 140.17 (criminal trespass in the first degree); section 140.20 (burglary in the third degree); section 140.25 (burglary in the second degree); section 140.30 (burglary in the first degree); section 145.00 (criminal mischief in the fourth degree); section 145.05 (criminal mischief in the third degree); section 145.10 (criminal mischief in the second degree); section 145.12 (criminal mischief in the first degree); section 150.05 (arson in the fourth degree); section 150.10 (arson in the third degree); section 150.15 (arson in the second degree); section 150.20 (arson in the first degree); section 155.25 (petit larceny); section 155.30 (grand larceny in the fourth degree); section 155.35 (grand larceny in the third degree); section 155.40 (grand larceny in the second degree); section 155.42 (grand larceny in the first degree); section 160.05 (robbery in the third degree); section 160.10 (robbery in the second degree); section 160.15 (robbery in the first degree); section 240.25 (harassment in the first degree); subdivi- sion one, two or four of section 240.30 (aggravated harassment in the second degree); or any attempt or conspiracy to commit any of the fore- going offenses. S 30. Subdivision 42 of section 1.20 of the criminal procedure law, as amended by chapter 7 of the laws of 2007, is amended to read as follows: 42. "Juvenile offender" means (1) a person, thirteen years old who is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 of the penal law, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; and (2) a person fourteen or fifteen years old who is criminally responsible for acts constituting the crimes defined in subdivisions one and two of section 125.25 (murder in the second degree) and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; section 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and S. 4743 11 two of section 120.10 (assault in the first degree); 125.20 (manslaught- er in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 ([criminal sexual act] ANAL RAPE in the first degree); SUBDIVISIONS ONE AND TWO OF SECTION 130.39 (ORAL RAPE IN THE FIRST DEGREE); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law; or defined in the penal law as an attempt to commit murder in the second degree or kidnapping in the first degree, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law. S 31. Subdivision 4 of section 180.75 of the criminal procedure law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: 4. Notwithstanding the provisions of subdivisions two and three of this section, a local criminal court shall, at the request of the district attorney, order removal of an action against a juvenile offen- der to the family court pursuant to the provisions of article seven hundred twenty-five of this chapter if, upon consideration of the crite- ria specified in subdivision two of section 210.43 of this chapter, it is determined that to do so would be in the interests of justice. Where, however, the felony complaint charges the juvenile offender with murder in the second degree as defined in section 125.25 of the penal law, rape in the first degree as defined in subdivision one of section 130.35 of the penal law, [criminal sexual act] ANAL RAPE in the first degree as defined in subdivision one of section 130.50 of the penal law, ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION ONE OF SECTION 130.39 OF THE PENAL LAW, or an armed felony as defined in paragraph (a) of subdivision forty-one of section 1.20 of this chapter, a determi- nation that such action be removed to the family court shall, in addi- tion, be based upon a finding of one or more of the following factors: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant's participation was relatively minor although not so minor as to constitute a defense to the prose- cution; or (iii) possible deficiencies in proof of the crime. S 32. Subdivision (a) of section 190.71 of the criminal procedure law, as amended by chapter 7 of the laws of 2007, is amended to read as follows: (a) Except as provided in subdivision six of section 200.20 of this chapter, a grand jury may not indict (i) a person thirteen years of age for any conduct or crime other than conduct constituting a crime defined in subdivisions one and two of section 125.25 (murder in the second degree) or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (ii) a person fourteen or fifteen years of age for any conduct or crime other than conduct consti- tuting a crime defined in subdivisions one and two of section 125.25 (murder in the second degree) and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and S. 4743 12 two of section 120.10 (assault in the first degree); 125.20 (manslaught- er in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 ([criminal sexual act] ANAL RAPE in the first degree); SUBDIVISIONS ONE AND TWO OF SECTION 130.39 (ORAL RAPE IN THE FIRST DEGREE); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; [subdivision four of section 265.02 of the penal law, where such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law;] or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law; or defined in the penal law as an attempt to commit murder in the second degree or kidnapping in the first degree, or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law. S 33. Paragraph (b) of subdivision 1 of section 210.43 of the criminal procedure law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: (b) with the consent of the district attorney, order removal of an action involving an indictment charging a juvenile offender with murder in the second degree as defined in section 125.25 of the penal law; rape in the first degree, as defined in subdivision one of section 130.35 of the penal law; [criminal sexual act] ANAL RAPE in the first degree, as defined in subdivision one of section 130.50 of the penal law; ORAL RAPE IN THE FIRST DEGREE, AS DEFINED IN SUBDIVISION ONE OF SECTION 130.39 OF THE PENAL LAW; or an armed felony as defined in paragraph (a) of subdi- vision forty-one of section 1.20, to the family court pursuant to the provisions of article seven hundred twenty-five of this chapter if the court finds one or more of the following factors: (i) mitigating circum- stances that bear directly upon the manner in which the crime was committed; (ii) where the defendant was not the sole participant in the crime, the defendant's participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possi- ble deficiencies in the proof of the crime, and, after consideration of the factors set forth in subdivision two of this section, the court determined that removal of the action to the family court would be in the interests of justice. S 34. Subparagraph (iii) of paragraph (g) of subdivision 5 of section 220.10 of the criminal procedure law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: (iii) Where the indictment does not charge a crime specified in subparagraph (i) of this paragraph, the district attorney may recommend removal of the action to the family court. Upon making such recommenda- tion the district attorney shall submit a subscribed memorandum setting forth: (1) a recommendation that the interests of justice would best be served by removal of the action to the family court; and (2) if the indictment charges a thirteen year old with the crime of murder in the second degree, or a fourteen or fifteen year old with the crimes of rape in the first degree as defined in subdivision one of section 130.35 of the penal law, or [criminal sexual act] ANAL RAPE in the first degree as defined in subdivision one of section 130.50 of the penal law, OR ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION ONE OF SECTION 130.39 OF THE PENAL LAW, or an armed felony as defined in paragraph (a) of S. 4743 13 subdivision forty-one of section 1.20 of this chapter specific factors, one or more of which reasonably supports the recommendation, showing, (i) mitigating circumstances that bear directly upon the manner in which the crime was committed, or (ii) where the defendant was not the sole participant in the crime, that the defendant's participation was rela- tively minor although not so minor as to constitute a defense to the prosecution, or (iii) possible deficiencies in proof of the crime, or (iv) where the juvenile offender has no previous adjudications of having committed a designated felony act, as defined in subdivision eight of section 301.2 of the family court act, regardless of the age of the offender at the time of commission of the act, that the criminal act was not part of a pattern of criminal behavior and, in view of the history of the offender, is not likely to be repeated. S 35. Subdivision 6 of section 300.50 of the criminal procedure law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: 6. For purposes of this section, the offenses of rape in the third degree as defined in subdivision three of section 130.25 of the penal law [and criminal sexual act], ANAL RAPE in the third degree as defined in subdivision three of section 130.40 of the penal law AND ORAL RAPE IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 130.37 OF THE PENAL LAW, are not lesser included offenses of rape in the first degree, [criminal sexual act] ANAL RAPE in the first degree, ORAL RAPE IN THE FIRST DEGREE or any other offense. Notwithstanding the foregoing, either such offense may be submitted as a lesser included offense of the applicable first degree offense when (i) there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater offense, and (ii) both parties consent to its submission. S 36. Paragraph (b) of subdivision 8 of section 700.05 of the criminal procedure law, as amended by chapter 405 of the laws of 2010, is amended to read as follows: (b) Any of the following felonies: assault in the second degree as defined in section 120.05 of the penal law, assault in the first degree as defined in section 120.10 of the penal law, reckless endangerment in the first degree as defined in section 120.25 of the penal law, promot- ing a suicide attempt as defined in section 120.30 of the penal law, strangulation in the second degree as defined in section 121.12 of the penal law, strangulation in the first degree as defined in section 121.13 of the penal law, criminally negligent homicide as defined in section 125.10 of the penal law, manslaughter in the second degree as defined in section 125.15 of the penal law, manslaughter in the first degree as defined in section 125.20 of the penal law, murder in the second degree as defined in section 125.25 of the penal law, murder in the first degree as defined in section 125.27 of the penal law, abortion in the second degree as defined in section 125.40 of the penal law, abortion in the first degree as defined in section 125.45 of the penal law, rape in the third degree as defined in section 130.25 of the penal law, rape in the second degree as defined in section 130.30 of the penal law, rape in the first degree as defined in section 130.35 of the penal law, [criminal sexual act] ANAL RAPE in the third degree as defined in section 130.40 of the penal law, [criminal sexual act] ORAL RAPE IN THE THIRD DEGREE AS DEFINED IN SECTION 130.37 OF THE PENAL LAW, ANAL RAPE in the second degree as defined in section 130.45 of the penal law, [crimi- nal sexual act] ORAL RAPE IN THE SECOND DEGREE AS DEFINED IN SECTION 130.38 OF THE PENAL LAW, ANAL RAPE in the first degree as defined in S. 4743 14 section 130.50 of the penal law, ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.39 OF THE PENAL LAW, sexual abuse in the first degree as defined in section 130.65 of the penal law, unlawful imprison- ment in the first degree as defined in section 135.10 of the penal law, kidnapping in the second degree as defined in section 135.20 of the penal law, kidnapping in the first degree as defined in section 135.25 of the penal law, labor trafficking as defined in section 135.35 of the penal law, custodial interference in the first degree as defined in section 135.50 of the penal law, coercion in the first degree as defined in section 135.65 of the penal law, criminal trespass in the first degree as defined in section 140.17 of the penal law, burglary in the third degree as defined in section 140.20 of the penal law, burglary in the second degree as defined in section 140.25 of the penal law, burglary in the first degree as defined in section 140.30 of the penal law, criminal mischief in the third degree as defined in section 145.05 of the penal law, criminal mischief in the second degree as defined in section 145.10 of the penal law, criminal mischief in the first degree as defined in section 145.12 of the penal law, criminal tampering in the first degree as defined in section 145.20 of the penal law, arson in the fourth degree as defined in section 150.05 of the penal law, arson in the third degree as defined in section 150.10 of the penal law, arson in the second degree as defined in section 150.15 of the penal law, arson in the first degree as defined in section 150.20 of the penal law, grand larceny in the fourth degree as defined in section 155.30 of the penal law, grand larceny in the third degree as defined in section 155.35 of the penal law, grand larceny in the second degree as defined in section 155.40 of the penal law, grand larceny in the first degree as defined in section 155.42 of the penal law, health care fraud in the fourth degree as defined in section 177.10 of the penal law, health care fraud in the third degree as defined in section 177.15 of the penal law, health care fraud in the second degree as defined in section 177.20 of the penal law, health care fraud in the first degree as defined in section 177.25 of the penal law, robbery in the third degree as defined in section 160.05 of the penal law, robbery in the second degree as defined in section 160.10 of the penal law, robbery in the first degree as defined in section 160.15 of the penal law, unlawful use of secret scientific material as defined in section 165.07 of the penal law, criminal possession of stolen property in the fourth degree as defined in section 165.45 of the penal law, criminal possession of stolen property in the third degree as defined in section 165.50 of the penal law, criminal possession of stolen property in the second degree as defined by section 165.52 of the penal law, criminal possession of stolen property in the first degree as defined by section 165.54 of the penal law, trademark counterfeiting in the second degree as defined in section 165.72 of the penal law, trademark counterfeiting in the first degree as defined in section 165.73 of the penal law, forgery in the second degree as defined in section 170.10 of the penal law, forgery in the first degree as defined in section 170.15 of the penal law, criminal possession of a forged instrument in the second degree as defined in section 170.25 of the penal law, criminal possession of a forged instrument in the first degree as defined in section 170.30 of the penal law, criminal possession of forgery devices as defined in section 170.40 of the penal law, falsifying business records in the first degree as defined in section 175.10 of the penal law, tampering with public records in the first degree as defined in section 175.25 of the penal law, offering a false instrument for filing in the first degree as defined in section S. 4743 15 175.35 of the penal law, issuing a false certificate as defined in section 175.40 of the penal law, criminal diversion of prescription medications and prescriptions in the second degree as defined in section 178.20 of the penal law, criminal diversion of prescription medications and prescriptions in the first degree as defined in section 178.25 of the penal law, residential mortgage fraud in the fourth degree as defined in section 187.10 of the penal law, residential mortgage fraud in the third degree as defined in section 187.15 of the penal law, resi- dential mortgage fraud in the second degree as defined in section 187.20 of the penal law, residential mortgage fraud in the first degree as defined in section 187.25 of the penal law, escape in the second degree as defined in section 205.10 of the penal law, escape in the first degree as defined in section 205.15 of the penal law, absconding from temporary release in the first degree as defined in section 205.17 of the penal law, promoting prison contraband in the first degree as defined in section 205.25 of the penal law, hindering prosecution in the second degree as defined in section 205.60 of the penal law, hindering prosecution in the first degree as defined in section 205.65 of the penal law, sex trafficking as defined in section 230.34 of the penal law, criminal possession of a weapon in the third degree as defined in subdivisions two, three and five of section 265.02 of the penal law, criminal possession of a weapon in the second degree as defined in section 265.03 of the penal law, criminal possession of a weapon in the first degree as defined in section 265.04 of the penal law, manufacture, transport, disposition and defacement of weapons and dangerous instru- ments and appliances defined as felonies in subdivisions one, two, and three of section 265.10 of the penal law, sections 265.11, 265.12 and 265.13 of the penal law, or prohibited use of weapons as defined in subdivision two of section 265.35 of the penal law, relating to firearms and other dangerous weapons, or failure to disclose the origin of a recording in the first degree as defined in section 275.40 of the penal law; S 37. Paragraph (a) of subdivision 2 of section 720.10 of the criminal procedure law, as amended by chapter 316 of the laws of 2006, is amended to read as follows: (a) the conviction to be replaced by a youthful offender finding is for (i) a class A-I or class A-II felony, or (ii) an armed felony as defined in subdivision forty-one of section 1.20, except as provided in subdivision three, or (iii) rape in the first degree, [criminal sexual act] ANAL RAPE in the first degree, ORAL RAPE IN THE FIRST DEGREE or aggravated sexual abuse, except as provided in subdivision three, or S 38. Subdivision 11 of section 123 of the agriculture and markets law, as amended by chapter 392 of the laws of 2004 and as renumbered by section 18 of part T of chapter 59 of the laws of 2010, is amended to read as follows: 11. The owner shall not be liable pursuant to subdivision six, seven, eight, nine or ten of this section if the dog was coming to the aid or defense of a person during the commission or attempted commission of a murder, robbery, burglary, arson, rape in the first degree as defined in subdivision one or two of section 130.35 of the penal law, [criminal sexual act] ANAL RAPE in the first degree as defined in subdivision one or two of section 130.50 of the penal law, ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION ONE OR TWO OF SECTION 130.39 OF THE PENAL LAW or kidnapping within the dwelling or upon the real property of the owner of the dog and the dog injured or killed the person committing such criminal activity. S. 4743 16 S 39. Section 213-c of the civil practice law and rules, as added by chapter 3 of the laws of 2006, is amended to read as follows: S 213-c. Action by victim of conduct constituting certain sexual offenses. Notwithstanding any other limitation set forth in this arti- cle, a civil claim or cause of action to recover from a defendant as hereinafter defined, for physical, psychological or other injury or condition suffered by a person as a result of acts by such defendant of rape in the first degree as defined in section 130.35 of the penal law, or [criminal sexual act] ANAL RAPE in the first degree as defined in section 130.50 of the penal law, OR ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.39 OF THE PENAL LAW, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law may be brought within five years. As used in this section, the term "defendant" shall mean only a person who commits the acts described in this section or who, in a criminal proceeding, could be charged with criminal liability for the commission of such acts pursuant to section 20.00 of the penal law and shall not apply to any related civil claim or cause of action arising from such acts. Nothing in this section shall be construed to require that a crim- inal charge be brought or a criminal conviction be obtained as a condi- tion of bringing a civil cause of action or receiving a civil judgment pursuant to this section or be construed to require that any of the rules governing a criminal proceeding be applicable to any such civil action. S 40. Paragraph (b) of subdivision 8 of section 215 of the civil prac- tice law and rules, as added by chapter 3 of the laws of 2006, is amended to read as follows: (b) Whenever it is shown that a criminal action against the same defendant has been commenced with respect to the event or occurrence from which a claim governed by this section arises, and such criminal action is for rape in the first degree as defined in section 130.35 of the penal law, or [criminal sexual act] ANAL RAPE in the first degree as defined in section 130.50 of the penal law, OR ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.39 OF THE PENAL LAW, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law, the plaintiff shall have at least five years from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to commence the civil action, notwithstanding that the time in which to commence such action has already expired or has less than a year remain- ing. S 41. The opening paragraph of subdivision (b) of section 117 of the family court act, as amended by chapter 7 of the laws of 2007, is amended to read as follows: For every juvenile delinquency proceeding under article three involv- ing an allegation of an act committed by a person which, if done by an adult, would be a crime (i) defined in sections 125.27 (murder in the first degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the first degree); or 150.20 (arson in the first degree) of the penal law committed by a person thirteen, fourteen or fifteen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (ii) defined in sections 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); 130.35 (rape in the first degree); 130.50 ([criminal sexual S. 4743 17 act] ANAL RAPE in the first degree); 130.39 (ORAL RAPE IN THE FIRST DEGREE); 135.20 (kidnapping in the second degree), but only where the abduction involved the use or threat of use of deadly physical force; 150.15 (arson in the second degree); or 160.15 (robbery in the first degree) of the penal law committed by a person thirteen, fourteen or fifteen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (iii) defined in the penal law as an attempt to commit murder in the first or second degree or kidnapping in the first degree committed by a person thirteen, fourteen or fifteen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (iv) defined in section 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law committed by a person fourteen or fifteen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (v) defined in section 120.05 (assault in the second degree) or 160.10 (robbery in the second degree) of the penal law committed by a person fourteen or fifteen years of age but only where there has been a prior finding by a court that such person has previously committed an act which, if committed by an adult, would be the crime of assault in the second degree, robbery in the second degree or any designated felony act specified in clause (i), (ii) or (iii) of this subdivision regardless of the age of such person at the time of the commission of the prior act; or (vi) other than a misdemeanor, committed by a person at least seven but less than sixteen years of age, but only where there has been two prior findings by the court that such person has committed a prior act which, if committed by an adult would be a felony: S 42. Subdivision 8 of section 301.2 of the family court act, as amended by chapter 7 of the laws of 2007, is amended to read as follows: 8. "Designated felony act" means an act which, if done by an adult, would be a crime: (i) defined in sections 125.27 (murder in the first degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the first degree); or 150.20 (arson in the first degree) of the penal law committed by a person thirteen, fourteen or fifteen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (ii) defined in sections 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); 130.35 (rape in the first degree); 130.50 ([criminal sexual act] ANAL RAPE in the first degree); 130.39 (ORAL RAPE IN THE FIRST DEGREE); 130.70 (aggravated sexual abuse in the first degree); 135.20 (kidnapping in the second degree) but only where the abduction involved the use or threat of use of deadly physical force; 150.15 (arson in the second degree) or 160.15 (robbery in the first degree) of the penal law committed by a person thirteen, fourteen or fifteen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (iii) defined in the penal law as an attempt to commit murder in the first or second degree or kidnapping in the first degree committed by a person thirteen, fourteen or fifteen years of age; or such conduct committed as a sexually moti- vated felony, where authorized pursuant to section 130.91 of the penal law; (iv) defined in section 140.30 (burglary in the first degree); S. 4743 18 subdivision one of section 140.25 (burglary in the second degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law committed by a person fourteen or fifteen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (v) defined in section 120.05 (assault in the second degree) or 160.10 (robbery in the second degree) of the penal law committed by a person fourteen or fifteen years of age but only where there has been a prior finding by a court that such person has previous- ly committed an act which, if committed by an adult, would be the crime of assault in the second degree, robbery in the second degree or any designated felony act specified in paragraph (i), (ii), or (iii) of this subdivision regardless of the age of such person at the time of the commission of the prior act; or (vi) other than a misdemeanor committed by a person at least seven but less than sixteen years of age, but only where there has been two prior findings by the court that such person has committed a prior felony. S 43. Subdivision 4 of section 308.1 of the family court act, as amended by chapter 264 of the laws of 2003, is amended to read as follows: 4. The probation service shall not adjust a case in which the child has allegedly committed a delinquent act which would be a crime defined in section 120.25, (reckless endangerment in the first degree), subdivi- sion one of section 125.15, (manslaughter in the second degree), subdi- vision one of section 130.25, (rape in the third degree), subdivision one of section 130.40, ([criminal sexual act] ANAL RAPE in the third degree), SUBDIVISION ONE OF SECTION 130.37, (ORAL RAPE IN THE THIRD DEGREE), subdivision one or two of section 130.65, (sexual abuse in the first degree), section 135.65, (coercion in the first degree), section 140.20, (burglary in the third degree), section 150.10, (arson in the third degree), section 160.05, (robbery in the third degree), subdivi- sion two[,] OR three [or four] of section 265.02, (criminal possession of a weapon in the third degree), section 265.03, (criminal possession of a weapon in the second degree), or section 265.04, (criminal possession of a dangerous weapon in the first degree) of the penal law where the child has previously had one or more adjustments of a case in which such child allegedly committed an act which would be a crime spec- ified in this subdivision unless it has received written approval from the court and the appropriate presentment agency. S 44. Section 4 of the judiciary law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: S 4. Sittings of courts to be public. The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, [criminal sexual act] ANAL RAPE, ORAL RAPE, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court. S 45. Subdivision 2 of section 120.60 of the penal law, as amended by chapter 434 of the laws of 2000, is amended to read as follows: 2. commits a class A misdemeanor defined in article one hundred thirty of this chapter, or a class E felony defined in section 130.25, 130.37, S. 4743 19 130.40 or 130.85 of this chapter, or a class D felony defined in section 130.30, 130.38 or 130.45 of this chapter. S 46. Subdivision 3 of section 720.10 of the criminal procedure law, as amended by chapter 264 of the laws of 2003, is amended to read as follows: 3. Notwithstanding the provisions of subdivision two, a youth who has been convicted of an armed felony offense or of rape in the first degree, [criminal sexual act] ANAL RAPE in the first degree, ORAL RAPE IN THE FIRST DEGREE or aggravated sexual abuse is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant's participation was relatively minor although not so minor as to constitute a defense to the prose- cution. Where the court determines that the eligible youth is a youthful offender, the court shall make a statement on the record of the reasons for its determination, a transcript of which shall be forwarded to the state division of criminal justice services, to be kept in accordance with the provisions of subdivision three of section eight hundred thir- ty-seven-a of the executive law. S 47. Paragraph (a) of subdivision 2 of section 30.10 of the criminal procedure law, as amended by chapter 467 of the laws of 2008, is amended to read as follows: (a) A prosecution for a class A felony, or rape in the first degree as defined in section 130.35 of the penal law, OR ANAL RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.50 OF THE PENAL LAW, OR ORAL RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION 130.39 OF THE PENAL LAW, or a crime [defined or] formerly defined in section 130.50 of the penal law, or aggravated sexual abuse in the first degree as defined in section 130.70 of the penal law, or course of sexual conduct against a child in the first degree as defined in section 130.75 of the penal law may be commenced at any time; S 48. Subparagraph (i) of paragraph (a) of subdivision 2 of section 168-a of the correction law, as amended by chapter 405 of the laws of 2008, is amended to read as follows: (i) a conviction of or a conviction for an attempt to commit any of the provisions of sections 120.70, 130.20, 130.25, 130.30, 130.37, 130.38, 130.40, 130.45, 130.60, 230.34, 250.50, 255.25, 255.26 and 255.27 or article two hundred sixty-three of the penal law, or section 135.05, 135.10, 135.20 or 135.25 of such law relating to kidnapping offenses, provided the victim of such kidnapping or related offense is less than seventeen years old and the offender is not the parent of the victim, or section 230.04, where the person patronized is in fact less than seventeen years of age, 230.05 or 230.06, or subdivision two of section 230.30, or section 230.32 or 230.33 of the penal law, or S 49. Subparagraph (i) of paragraph (a) of subdivision 3 of section 168-a of the correction law, as amended by chapter 107 of the laws of 2006, is amended to read as follows: (i) a conviction of or a conviction for an attempt to commit any of the provisions of sections 130.35, 130.39, 130.50, 130.65, 130.66, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law, or S 50. This act shall take effect immediately; provided that section fourteen of this act shall take effect on the same date and in the same manner as section 27 of chapter 1 of the laws of 2013, takes effect.
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