This bill has been amended

Bill S6634-2013

Establishes the class B felony of aggravated assault upon a person less than ten years old and the class C felony of criminal use of a firearm on a playground

Enacts "Luisito's law"; establishes the class B felony of aggravated assault upon a person less than ten years old; includes within the class C felony of criminal use of a firearm in the second degree the possession of a weapon while committing certain specified class C or D felonies upon school grounds or within 250 feet of a playground in the city of New York.

Details

Actions

  • May 8, 2014: AMEND AND RECOMMIT TO CODES
  • Feb 19, 2014: REFERRED TO CODES

Votes

VOTE: COMMITTEE VOTE: - Codes - May 13, 2014
Ayes (10): DeFrancisco, Flanagan, Golden, Lanza, O'Mara, Griffo, Avella, Espaillat, Hoylman, O'Brien
Ayes W/R (6): Nozzolio, Boyle, Gallivan, Squadron, Perkins, Krueger

Memo

BILL NUMBER:S6634

TITLE OF BILL: An act to amend the penal law, in relation to establishing the offenses of aggravated assault upon a person less than ten years old and criminal use of a firearm on a playground

PURPOSE OR GENERAL IDEA OF BILL:

The purposes of this bill is to establish an act to be called "Luisito's Law". It establishes a separate class B felony of aggravated assault upon a person who is less than ten years old and the Class C felony of criminal use of a firearm near a children's playground.

SPECIFIC PROVISIONS:

Section 1: Enacts amendments to the Penal Law to establish and to be known as "Luisito's Law".

Section 2: Amends Penal Law section 70.02 to: 1) Add to those crimes that are to be considered to be a Class B violent felony a new crime of aggravated assault upon a person less than ten years old as such crime is to be established pursuant to new Penal Law section 120.12-a (bill section 3); and 2) Add to those crimes that are considered to be a Class C violent felony a new crime of criminal use of a firearm on a playground as such crime is to be established pursuant to new Penal Law section 265.09-a (bill section 4).

Section 3: Adds a new Penal Law section 120.12-a, relating to aggravated assault upon a person less than ten years old within Article 120 that covers assault and related offenses. This provision adds the new crime of aggravated assault upon a person that is less than ten years old, if the assailant is 18 years or older, and such person with the intent to cause physical injury to another person, causes injury by means of a deadly weapon or dangerous instrument. Conviction of this crime would be a Class B felony.

Section 4: Adds a new Penal Law section 265.09-a, relating to criminal use of a firearm on a playground. A person would be guilty of such a crime upon the discharge of a firearm upon or within 500 feet of any area or premises dedicated to recreational use by children, including but not limited to parks, playgrounds, or outdoor school playgrounds. Conviction of this crime would be a Class C felony.

JUSTIFICATION:

This new law will be named after Luis Oyola, Jr., a three year old boy who was struck by a stray bullet in the West Farms neighborhood of the Bronx.

Luis was hit with a stray bullet on August 30, 2013, while in Vidalia Park with his family. Vidalia Park is located on East 180th Street between Daly Avenue and Vyse Avenue in the West Farms section of the Bronx. After being hit in the arm by a bullet, he was taken to St. Barnabas Hospital where he, thankfully, has made his recovery. The suspect in the Luis' case has been charged with attempted murder as well as assaulting a child. Using today's laws, the attempted murder

charge carries a sentence of 15 to 25 years in prison, while, the assault charge only carries a sentence of 1 1/2 to 4 years in prison. Given that it is more difficult to convict an accused person of attempted murder, due to the need to prove actual intent to commit the murder in question, the fall back charge of assault may be the only charge that the court can accept in this case.

The enactment of Luisito's Law will change the current law by enacting a new crime to enhance the punishment of a person convicted of aggravated assault of a child under the age of 10 years old by means of a deadly weapon or dangerous instrument. Further, enacting a new enhanced crime to make it a Class C felony for anyone to discharge a firearm in or near a playground, regardless of if a child or any other person is injured, should help to deter anyone from firing a firearm near a playground or park that is used for recreational purposes by children.

Each year many children in this state become the victims of unnecessary violence when hit with stray bullets or shrapnel. These children are innocent victims who can face a lifetime of physical pain & suffering, and psychological damage at the hands of violent criminals. This bill would also help to ensure that around playgrounds that children and young families use to play in would be in a zone of safety to protect children from anyone who discharges a firearm on such playground or within 500 feet of such playground. The enactment of this bill should help to ensure that anyone who harms a child, whether on purpose or not, is punished justly.

PRIOR LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect on the first of November next succeeding the date upon which it shall have become law.


Text

STATE OF NEW YORK ________________________________________________________________________ 6634 IN SENATE February 19, 2014 ___________
Introduced by Sen. KLEIN -- 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 establishing the offenses of aggravated assault upon a person less than ten years old and crimi- nal use of a firearm on a playground THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Short title. This act shall be known and may be cited as "Luisito's law". S 2. Paragraphs (a) and (b) of subdivision 1 of section 70.02 of the penal law, paragraph (a) as amended by chapter 320 of the laws of 2006 and paragraph (b) as amended by chapter 1 of the laws of 2013, are 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 in the first degree as defined in section 130.50, 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 PERSON LESS THAN TEN YEARS OLD AS DEFINED IN SECTION 120.12-A, 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 weapon or biological weapon in the third degree as defined in section 490.47. (b) Class C violent felony offenses: an attempt to commit any of the class B felonies set forth in paragraph (a) of this subdivision; aggra- vated criminally negligent homicide as defined in section 125.11, aggra- vated manslaughter in the second degree as defined in section 125.21, aggravated sexual abuse in the second degree as defined in section 130.67, assault on a peace officer, police officer, fireman or emergency medical services professional as defined in section 120.08, assault on a judge as defined in section 120.09, gang assault in the second degree as defined in section 120.06, strangulation in the first degree as defined in section 121.13, burglary in the second degree as defined in section 140.25, robbery in the second degree as defined in section 160.10, crim- inal possession of a weapon in the second degree as defined in section 265.03, criminal use of a firearm in the second degree as defined in section 265.08, CRIMINAL USE OF A FIREARM ON A PLAYGROUND AS DEFINED IN SECTION 265.09-A, criminal sale of a firearm in the second degree as defined in section 265.12, criminal sale of a firearm with the aid of a minor as defined in section 265.14, aggravated criminal possession of a weapon as defined in section 265.19, soliciting or providing support for an act of terrorism in the first degree as defined in section 490.15, hindering prosecution of terrorism in the second degree as defined in section 490.30, and criminal possession of a chemical weapon or biolog- ical weapon in the third degree as defined in section 490.37. S 3. The penal law is amended by adding a new section 120.12-a to read as follows: S 120.12-A AGGRAVATED ASSAULT UPON A PERSON LESS THAN TEN YEARS OLD. A PERSON IS GUILTY OF AGGRAVATED ASSAULT UPON A PERSON LESS THAN TEN YEARS OLD WHEN, BEING EIGHTEEN YEARS OLD OR OLDER, WITH INTENT TO CAUSE PHYSICAL INJURY TO ANOTHER PERSON, HE OR SHE CAUSES SUCH INJURY TO A CHILD LESS THAN TEN YEARS OLD BY MEANS OF A DEADLY WEAPON OR DANGEROUS INSTRUMENT. AGGRAVATED ASSAULT UPON A PERSON LESS THAN TEN YEARS OLD IS A CLASS B FELONY. S 4. The penal law is amended by adding a new section 265.09-a to read as follows S 265.09-A CRIMINAL USE OF A FIREARM ON A PLAYGROUND. A PERSON IS GUILTY OF CRIMINAL USE OF A FIREARM ON A PLAYGROUND WHEN HE OR SHE DISCHARGES A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM UPON OR WITHIN FIVE HUNDRED FEET OF ANY AREA OR PREMISES DEDICATED TO RECREATIONAL USE BY CHILDREN. CRIMINAL USE OF A FIREARM ON A PLAYGROUND IS A CLASS C FELONY. S 5. This act shall take effect on the first of November next succeed- ing the date upon which it shall have become a law.

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