S T A T E   O F   N E W   Y O R K
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                                  6330

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              March 2, 2009
                               ___________

Introduced  by  M.  of  A.  BARRA, KOLB -- read once and referred to the
  Committee on Codes

AN ACT to amend the penal law, in relation to carjacking

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

  Section  1.  The  penal  law is amended by adding a new article 161 to
read as follows:
                               ARTICLE 161
                               CARJACKING
SECTION 161.00 CARJACKING; DEFINED.
        161.05 CARJACKING IN THE THIRD DEGREE.
        161.10 CARJACKING IN THE SECOND DEGREE.
        161.15 CARJACKING IN THE FIRST DEGREE.
S 161.00  CARJACKING; DEFINED.
  CARJACKING.   A PERSON COMMITS  CARJACKING  WHEN,  IN  THE  COURSE  OF
COMMITTING  LARCENY  OF  A  MOTOR VEHICLE FROM THE PERSON OR PRESENCE OF
ANOTHER PERSON, HE OR SHE USES OR THREATENS THE IMMEDIATE USE  OF  PHYS-
ICAL FORCE UPON ANOTHER PERSON FOR THE PURPOSE OF:
  1.    PREVENTING  OR  OVERCOMING RESISTANCE TO THE TAKING OF THE MOTOR
VEHICLE OR TO THE RETENTION THEREOF IMMEDIATELY AFTER THE TAKING; OR
  2.  COMPELLING THE OWNER OF SUCH MOTOR VEHICLE OR  ANOTHER  PERSON  TO
DELIVER UP THE MOTOR VEHICLE OR TO ENGAGE IN OTHER CONDUCT WHICH AIDS IN
THE COMMISSION OF THE LARCENY.
S 161.05  CARJACKING IN THE THIRD DEGREE.
  A  PERSON  IS  GUILTY OF CARJACKING IN THE THIRD DEGREE WHEN HE OR SHE
FORCIBLY STEALS A MOTOR VEHICLE FROM THE PERSON OR PRESENCE  OF  ANOTHER
PERSON.
  CARJACKING IN THE THIRD DEGREE IS A CLASS D FELONY.
S 161.10  CARJACKING IN THE SECOND DEGREE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07279-01-9

A. 6330                             2
              

  A  PERSON  IS GUILTY OF CARJACKING IN THE SECOND DEGREE WHEN HE OR SHE
FORCIBLY STEALS A MOTOR VEHICLE FROM THE PERSON OR PRESENCE  OF  ANOTHER
PERSON AND WHEN:
  1.  HE OR SHE IS AIDED BY ANOTHER PERSON ACTUALLY PRESENT; OR
  2.    IN  THE  COURSE  OF  THE COMMISSION OF THE CRIME OR OF IMMEDIATE
FLIGHT THEREFROM, HE OR SHE OR ANOTHER PARTICIPANT IN THE CRIME:
  (A)  CAUSES PHYSICAL INJURY TO ANY PERSON WHO IS NOT A PARTICIPANT  IN
THE CRIME; OR
  (B)    DISPLAYS WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN,
MACHINE GUN OR OTHER FIREARM.
  CARJACKING IN THE SECOND DEGREE IS A CLASS C FELONY.
S 161.15  CARJACKING IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF CARJACKING IN THE FIRST DEGREE WHEN  HE  OR  SHE
FORCIBLY  STEALS  A MOTOR VEHICLE FROM THE PERSON OR PRESENCE OF ANOTHER
PERSON AND WHEN, IN THE COURSE OF THE COMMISSION  OF  THE  CRIME  OR  OF
IMMEDIATE  FLIGHT  THEREFROM,  HE  OR  SHE OR ANOTHER PARTICIPANT IN THE
CRIME:
  1.  CAUSES SERIOUS PHYSICAL INJURY TO ANY PERSON WHO IS NOT A  PARTIC-
IPANT IN THE CRIME; OR
  2.  IS ARMED WITH A DEADLY WEAPON; OR
  3.  USES OR THREATENS THE IMMEDIATE USE OF A DANGEROUS INSTRUMENT; OR
  4.    DISPLAYS  WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN,
MACHINE GUN OR OTHER FIREARM; EXCEPT THAT IN ANY PROSECUTION UNDER  THIS
SUBDIVISION,  IT  IS  AN AFFIRMATIVE DEFENSE THAT SUCH PISTOL, REVOLVER,
RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM WAS  NOT  A  LOADED  WEAPON
FROM  WHICH  A SHOT, READILY CAPABLE OF PRODUCING DEATH OR OTHER SERIOUS
PHYSICAL INJURY, COULD BE DISCHARGED.  NOTHING CONTAINED IN THIS  SUBDI-
VISION  SHALL  CONSTITUTE  A DEFENSE TO A PROSECUTION FOR, OR PRECLUDE A
CONVICTION OF,  CARJACKING IN THE SECOND DEGREE, CARJACKING IN THE THIRD
DEGREE OR ANY OTHER CRIME.
  CARJACKING IN THE FIRST DEGREE IS A CLASS B FELONY.
  S 2. Subdivision 1 of section 70.02 of the penal  law,  as  separately
amended  by  chapters  764 and 765 of the laws of 2005, paragraph (a) as
amended by chapter 320 of the laws of 2006 and paragraphs (c) and (d) as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
  1. Definition of a violent felony offense. A violent felony offense is
a class B violent felony offense, a class C violent  felony  offense,  a
class  D  violent  felony  offense, or a class E violent felony offense,
defined 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,  CARJACKING  IN  THE FIRST DEGREE AS DEFINED IN SECTION
161.15, incest in the first degree as defined in section 255.27,  crimi-
nal  possession  of  a  weapon in the first degree as defined in section

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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
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);  aggravated  criminally
negligent homicide as defined in section 125.11, aggravated 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, gang assault  in  the  second
degree  as  defined  in section 120.06, burglary in the second degree as
defined in section 140.25, robbery in the second degree  as  defined  in
section  160.10,  CARJACKING  IN THE SECOND DEGREE AS DEFINED IN SECTION
161.10, criminal 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 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, 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  biological  weapon in the third degree as defined in section
490.37.
  (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, rape in the second degree as defined  in  section
130.30,  criminal  sexual act in the second degree as defined in section
130.45, 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, CARJACKING IN THE THIRD DEGREE
AS DEFINED IN SECTION 161.05, 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

A. 6330                             4

unpermitted use of indoor pyrotechnics in the first degree as defined in
section 405.18.
  (d)  Class  E violent felony offenses: an attempt to commit any of the
felonies of criminal possession of a  weapon  in  the  third  degree  as
defined  in subdivision five, six, seven or eight of section 265.02 as a
lesser included offense of that section as defined in section 220.20  of
the  criminal  procedure  law,  persistent  sexual  abuse  as defined in
section 130.53, aggravated sexual abuse in the fourth degree as  defined
in  section 130.65-a, falsely reporting an incident in the second degree
as defined in section 240.55 and  placing  a  false  bomb  or  hazardous
substance in the second degree as defined in section 240.61.
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.