S T A T E O F N E W Y O R K
________________________________________________________________________
1092
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. McDONOUGH, KOON, ERRIGO, THIELE, ALFANO, BARRA,
SPANO -- Multi-Sponsored by -- M. of A. SAYWARD -- read once and
referred to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to life imprisonment without parole for multiple or serial
sex offenders
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 60.05 of the penal law, as amended by chapter 410
of the laws of 1979, the section heading and subdivisions 2, 3, 4 and 5
as amended by chapter 738 of the laws of 2004 and subdivision 1 as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
S 60.05 Authorized dispositions; other class A, B, certain C and D felo-
nies [and], multiple felony offenders, AND MULTIPLE OR SERIAL
SEX OFFENDERS.
1. Applicability. Except as provided in section 60.04 of this article
governing the authorized dispositions applicable to felony offenses
defined in article two hundred twenty or two hundred twenty-one of this
chapter or in section 60.13 of this article governing the authorized
dispositions applicable to felony sex offenses defined in paragraph (a)
of subdivision one of section 70.80 of this title, this section shall
govern the dispositions authorized when a person is to be sentenced upon
a conviction of a class A felony, a class B felony or a class C, class D
or class E felony specified [herein] IN THIS SECTION, [or] when a person
is to be sentenced upon a conviction of a felony as a multiple felony
offender, OR AS A MULTIPLE OR SERIAL SEX OFFENDER.
2. Class A felony. Except as provided in subdivisions three and four
of section 70.06 of this chapter, every person convicted of a class A
felony must be sentenced to imprisonment in accordance with section
70.00 of this title, unless such person is convicted of murder in the
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01361-01-9
A. 1092 2
first degree and is sentenced in accordance with section 60.06 of this
article.
3. Class B felony. Except as provided in subdivision six OR SEVEN of
this section, every person convicted of a class B violent felony
offense, as defined in subdivision one of section 70.02 of this title,
must be sentenced to imprisonment in accordance with such section 70.02;
and, except as provided in subdivision six of this section, every person
convicted of any other class B felony must be sentenced to imprisonment
in accordance with section 70.00 of this title.
4. Certain class C felonies. Except as provided in subdivision six,
every person convicted of a class C violent felony offense, as defined
in subdivision one of section 70.02 of this title, must be sentenced to
imprisonment in accordance with section 70.02 of this title; and, except
as provided in subdivision six of this section, every person convicted
of the class C felonies of: attempt to commit any of the class B felo-
nies of bribery in the first degree as defined in section 200.04, bribe
receiving in the first degree as defined in section 200.12, conspiracy
in the second degree as defined in section 105.15, and criminal mischief
in the first degree as defined in section 145.12; criminal usury in the
first degree as defined in section 190.42, rewarding official misconduct
in the first degree as defined in section 200.22, receiving reward for
official misconduct in the first degree as defined in section 200.27,
attempt to promote prostitution in the first degree as defined in
section 230.32, promoting prostitution in the second degree as defined
in section 230.30, OR arson in the third degree as defined in section
150.10 of this chapter, must be sentenced to imprisonment in accordance
with section 70.00 of this title.
5. Certain class D felonies. Except as provided in subdivision six of
this section, every person convicted of the class D felonies of assault
in the second degree as defined in section 120.05 or attempt to commit a
class C felony as defined in section 230.30 of this chapter, must be
sentenced in accordance with section 70.00 or 85.00 of this title.
6. Multiple felony offender. [When] EXCEPT AS PROVIDED IN SUBDIVISION
SEVEN, WHEN the court imposes sentence upon a second violent felony
offender, as defined in section 70.04, or a second felony offender, as
defined in section 70.06, the court must impose a sentence of imprison-
ment in accordance with section 70.04 or 70.06, as the case may be,
unless it imposes a sentence of imprisonment in accordance with section
70.08 or 70.10.
7. MULTIPLE OR SERIAL SEX OFFENDER. UPON THE CONVICTION OF A MULTIPLE
OR SERIAL SEX OFFENDER, AS DEFINED IN SECTION 70.09, THE COURT SHALL
SENTENCE THE DEFENDANT TO LIFE IMPRISONMENT WITHOUT PAROLE. NOTWITH-
STANDING ANY OTHER PROVISION OF LAW, A DEFENDANT SENTENCED TO LIFE
IMPRISONMENT WITHOUT PAROLE SHALL NOT BE OR BECOME ELIGIBLE FOR PAROLE,
CONDITIONAL RELEASE, PRESUMPTIVE RELEASE, OR UNCONDITIONAL RELEASE. FOR
PURPOSES OF COMMITMENT AND CUSTODY, OTHER THAN PAROLE, CONDITIONAL OR
UNCONDITIONAL RELEASE, AND, SUCH SENTENCE SHALL BE DEEMED TO BE AN INDE-
TERMINATE SENTENCE.
8. Fines. Where the court imposes a sentence of imprisonment in
accordance with this section, the court also may impose a fine author-
ized by article eighty, and, in such case the sentence shall be both
imprisonment and a fine.
S 2. Subdivision 1 of section 70.00 of the penal law, as amended by
section 36 of chapter 7 of the laws of 2007, is amended to read as
follows:
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1. Indeterminate sentence. Except as provided in subdivisions four,
five [and], six AND SEVEN of this section or section 70.80 of this arti-
cle, a sentence of imprisonment for a felony, other than a felony
defined in article two hundred twenty or two hundred twenty-one of this
chapter, shall be an indeterminate sentence. When such a sentence is
imposed, the court shall impose a maximum term in accordance with the
provisions of subdivision two of this section and the minimum period of
imprisonment shall be as provided in subdivision three of this section.
S 3. Subdivision 1 of section 70.00 of the penal law, as amended by
section 37 of chapter 7 of the laws of 2007, is amended to read as
follows:
1. Indeterminate sentence. Except as provided in subdivisions four
[and], five AND SEVEN of this section or section 70.80 of this article,
a sentence of imprisonment for a felony, other than a felony defined in
article two hundred twenty or two hundred twenty-one of this chapter,
shall be an indeterminate sentence. When such a sentence is imposed, the
court shall impose a maximum term in accordance with the provisions of
subdivision two of this section and the minimum period of imprisonment
shall be as provided in subdivision three of this section.
S 4. Section 70.00 of the penal law is amended by adding a new subdi-
vision 7 to read as follows:
7. LIFE IMPRISONMENT WITHOUT PAROLE. WHEN A PERSON IS SENTENCED AS A
MULTIPLE OR SERIAL SEX OFFENDER, AS DEFINED IN SECTION 70.09 OF THIS
ARTICLE, THE COURT SHALL SENTENCE THE DEFENDANT TO LIFE IMPRISONMENT
WITHOUT PAROLE PURSUANT TO SECTION 60.05 OF THIS TITLE.
S 5. Subdivision 2 of section 70.02 of the penal law is amended by
adding a new paragraph (d) to read as follows:
(D) NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SUBDIVISION, THE
SENTENCE IMPOSED UPON A PERSON WHO STANDS CONVICTED OF A MULTIPLE OR
SERIAL SEX OFFENSE, AS DEFINED IN SECTION 70.09 OF THIS ARTICLE, SHALL
BE LIFE IMPRISONMENT WITHOUT PAROLE PURSUANT TO SECTION 60.05 OF THIS
TITLE.
S 6. Subdivision 1 of section 70.04 of the penal law, as added by
chapter 481 of the laws of 1978 and subparagraph (iii) of paragraph (b)
as amended by chapter 471 of the laws of 1980, is amended to read as
follows:
1. Definition of second violent felony offender. EXCEPT AS PROVIDED
IN SECTION 70.09 OF THIS ARTICLE:
(a) A second violent felony offender is a person who stands convicted
of a violent felony offense as defined in subdivision one of section
70.02 after having previously been subjected to a predicate violent
felony conviction as defined in paragraph (b) of this subdivision.
(b) For the purpose of determining whether a prior conviction is a
predicate violent felony conviction the following criteria shall apply:
(i) The conviction must have been in this state of a class A felony
(other than one defined in article two hundred twenty) or of a violent
felony offense as defined in subdivision one of section 70.02, or of an
offense defined by the penal law in effect prior to September first,
nineteen hundred sixty-seven, which includes all of the essential
elements of any such felony, or in any other jurisdiction of an offense
which includes all of the essential elements of any such felony for
which a sentence to a term of imprisonment in excess of one year or a
sentence of death was authorized and is authorized in this state irre-
spective of whether such sentence was imposed;
(ii) Sentence upon such prior conviction must have been imposed before
commission of the present felony;
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(iii) Suspended sentence, suspended execution of sentence, a sentence
of probation, a sentence of conditional discharge or of unconditional
discharge, and a sentence of certification to the care and custody of
the division of substance abuse services, shall be deemed to be a
sentence;
(iv) Except as provided in subparagraph (v) of this paragraph,
sentence must have been imposed not more than ten years before commis-
sion of the felony of which the defendant presently stands convicted;
(v) In calculating the ten year period under subparagraph (iv), any
period of time during which the person was incarcerated for any reason
between the time of commission of the previous felony and the time of
commission of the present felony shall be excluded and such ten year
period shall be extended by a period or periods equal to the time served
under such incarceration;
(vi) An offense for which the defendant has been pardoned on the
ground of innocence shall not be deemed a predicate violent felony
conviction.
S 7. The penal law is amended by adding a new section 70.09 to read as
follows:
S 70.09 SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE FOR MULTIPLE OR
SERIAL SEX OFFENDER.
1. DEFINITION OF MULTIPLE OR SERIAL SEX OFFENDER. A PERSON IS A MULTI-
PLE OR SERIAL SEX OFFENDER UPON CONVICTION OF TWO OR MORE QUALIFYING
CONVICTIONS OF VIOLATION OF SECTION 130.35 OF THIS CHAPTER OR ANY CRIME
INVOLVING RAPE, SODOMY OR SEXUAL ABUSE OF A CHILD UNDER THE AGE OF
SEVENTEEN. A QUALIFYING CONVICTION IS ANY CONVICTION IN THIS STATE OF
ANY ONE COUNT OF VIOLATION OF SUCH SECTION 130.35 OR ANY CRIME INVOLVING
RAPE, SODOMY OR SEXUAL ABUSE OF A CHILD UNDER THE AGE OF SEVENTEEN
REGARDLESS OF WHEN SUCH CONVICTION IS HAD AND REGARDLESS OF WHETHER SUCH
CONVICTIONS ARE HAD UPON THE SAME OR DIFFERENT ACCUSATORY INSTRUMENTS,
AT THE SAME OR DIFFERENT TRIALS, AT THE SAME TIME AS THE PRESENT
CONVICTION, OR ANY OTHER CONSIDERATIONS. A QUALIFYING CONVICTION IS ALSO
ANY CONVICTION HAD UNDER THE PENAL LAW OF THIS STATE IN EFFECT PRIOR TO
SEPTEMBER FIRST, NINETEEN HUNDRED SIXTY-SEVEN OR IN ANY OTHER JURISDIC-
TION OF AN OFFENSE THAT INCLUDES ALL OF THE ESSENTIAL ELEMENTS OF
SECTION 130.35 OF THIS CHAPTER OR ANY CRIME INVOLVING RAPE, SODOMY OR
SEXUAL ABUSE OF A CHILD UNDER THE AGE OF SEVENTEEN. A CONVICTION FOR
WHICH THE DEFENDANT HAS BEEN PARDONED ON THE GROUNDS OF INNOCENCE SHALL
NOT BE DEEMED A QUALIFYING CONVICTION. WHENEVER IT APPEARS THAT THE
DEFENDANT HAS BEEN PREVIOUSLY SUBJECTED TO A QUALIFYING CONVICTION, IF
THE DEFENDANT DOES NOT ADMIT SUCH QUALIFYING CONVICTION, THE COURT MAY
CONDUCT A HEARING ON SUCH ISSUE PURSUANT TO SECTION 400.21 OF THE CRIMI-
NAL PROCEDURE LAW.
2. SENTENCE. A MULTIPLE OR SERIAL SEX OFFENDER MAY, IN THE DISCRETION
OF THE COURT, BE SENTENCED TO LIFE IMPRISONMENT WITHOUT PAROLE PURSUANT
TO SECTION 60.05 OF THIS TITLE.
S 8. Subdivision 1 of section 70.08 of the penal law, as added by
chapter 481 of the laws of 1978, paragraph (a) as amended by chapter 107
of the laws of 2006, is amended to read as follows:
1. Definition of persistent violent felony offender. EXCEPT AS
PROVIDED IN SECTION 70.09 OF THIS ARTICLE:
(a) A persistent violent felony offender is a person who stands
convicted of a violent felony offense as defined in subdivision one of
section 70.02 or the offense of predatory sexual assault as defined in
section 130.95 of this chapter or the offense of predatory sexual
assault against a child as defined in section 130.96 of this chapter,
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after having previously been subjected to two or more predicate violent
felony convictions as defined in paragraph (b) of subdivision one of
section 70.04 of this article.
(b) For the purpose of determining whether a person has two or more
predicate violent felony convictions, the criteria set forth in para-
graph (b) of subdivision one of section 70.04 shall apply.
S 9. Section 70.20 of the penal law is amended by adding a new subdi-
vision 3-a to read as follows:
3-A. SENTENCE OF LIFE IMPRISONMENT WITHOUT PAROLE. WHEN A SENTENCE OF
LIFE IMPRISONMENT WITHOUT PAROLE IS IMPOSED, THE COURT SHALL COMMIT THE
DEFENDANT TO THE CUSTODY OF THE STATE DEPARTMENT OF CORRECTIONAL
SERVICES FOR THE REMAINDER OF THE LIFE OF THE DEFENDANT.
S 10. Subdivision 3 of section 300.40 of the criminal procedure law,
the opening paragraph as amended by chapter 1 of the laws of 1995, is
amended to read as follows:
3. If a multiple count indictment contains concurrent counts of murder
in the first degree OR OF RAPE IN THE FIRST DEGREE, the court must
submit every such count THEREOF. In any other case, if a multiple count
indictment contains concurrent counts only, the court must submit at
least one such count, and may submit more than one as follows:
(a) With respect to non-inclusory concurrent counts, the court may in
its discretion submit one or more or all thereof;
(b) With respect to inclusory concurrent counts, the court must
submit the greatest or inclusive count and may or must, under circum-
stances prescribed in section 300.50 OF THIS ARTICLE, also submit, but
in the alternative only, one or more of the lesser included counts. A
verdict of guilty upon the greatest count submitted is deemed a dismiss-
al of every lesser count submitted, but not an acquittal thereon. A
verdict of guilty upon a lesser count is deemed an acquittal upon every
greater count submitted.
S 11. This act shall take effect on the first of November next
succeeding the date on which it shall have become a law; provided that
the amendments to subdivision 1 of section 70.00 of the penal law made
by section two of this act shall be subject to the expiration and rever-
sion of such subdivision pursuant to section 74 of chapter 3 of the laws
of 1995, as amended, when upon such date the provisions of section three
of this act shall take effect.