LAWS OF NEW YORK, 2000
CHAPTER 1


EXPLANATION—Matter in italics is new; matter in brackets [ ] is old law to be omitted.

LAWS OF NEW YORK, 2000
CHAPTER 1

AN ACT enacting the sexual assault reform act; to amend the penal law, in relation to the incapacity to consent to sexual offenses; and to repeal section 130.38 of the penal law relating to consensual sodomy; to amend the penal law, the executive law and the correction law, in relation to prohibiting certain sex offenders placed on conditional release or parole from entering upon school grounds or other facilities where children are cared for; to amend the penal law, in relation
to administering a controlled substance for the purpose of committing certain sexual offenses; to amend the public health law, in relation to designating gamma hydroxybutyric acid as a controlled substance; to amend the criminal procedure law, in relation to prohibiting issuance of an order of recognizance or bail to certain persons upon conviction of a sex offense or offense involving a sexual performance by a child; to amend the public health law, in relation to establishing a statewide sexual assault forensic examiner program; to amend the penal law, in relation to sentence of imprisonment for second child sexual assault felony offenders; to amend the executive law, in relation to eligibility to receive awards from the crime victims board; to amend the criminal procedure law, in relation to testimony of youthful witnesses; to amend the correction law, in relation to requiring internet access information within the sex offender registry and the preamble played before charges begin on the "900" number under the sexual offender registration and notification program and the charge imposed for use of such number; and to amend the public health law, in relation to establishing a rape crisis intervention and prevention program; and providing for the repeal of certain provisions upon the expiration thereof

Became a law October 19, 2000, with the approval of the Governor. Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.

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
the "Sexual Assault Reform Act".
§ 1-a. Subdivision 5 of section 130.00 of the penal law is amended to
read as follows:
5. "Mentally [defective ] disabled" means that a person suffers from a
mental disease or defect which renders him or her incapable of apprais-
ing the nature of his or her conduct.
§ 2. Section 130.00 of the penal law is amended by adding two new
subdivisions 12 and 13 to read as follows:
12. "Health care provider" means any person who is, or is required to
be, licensed or registered or holds himself or herself out to be
licensed or registered, or provides services as if he or she were
licensed or registered in the profession of medicine, chiropractic,
dentistry or podiatry under any of the following: article one hundred
thirty-one, one hundred thirty-two, one hundred thirty-three, or one
hundred forty-one of the education law.
13. "Mental health care provider" means any person who is, or is
required to be, licensed or registered, or holds himself or herself out
to be licensed or registered, or provides mental health services as if
he or she were licensed or registered in the profession of medicine,
psychology or social work under any of the following: article one
hundred thirty-one, one hundred fifty-three, or one hundred fifty-four
of the education law.
§ 3. Subdivision 3 of section 130.05 of the penal law, as amended by
chapter 266 of the laws of 1996, is amended to read as follows:
3. A person is deemed incapable of consent when he or she is:
(a) less than seventeen years old; or
(b) mentally [defective ] disabled; or
(c) mentally incapacitated; or
(d) physically helpless; or
(e) committed to the care and custody of the state department of
correctional services or a hospital, as such term is defined in subdivi-
sion two of section four hundred of the correction law, and the actor is
an employee, not married to such person, who knows or reasonably should
know that such person is committed to the care and custody of such
department or hospital. For purposes of this paragraph, "employee" means
(i) an employee of the state department of correctional services who
performs professional duties in a state correctional facility consisting
of providing custody, medical or mental health services, counseling
services, educational programs, or vocational training for inmates;
(ii) an employee of the division of parole who performs professional
duties in a state correctional facility and who provides institutional
parole services pursuant to section two hundred fifty-nine-e of the
executive law; or
(iii) an employee of the office of mental health who performs profes-
sional duties in a state correctional facility or hospital, as such term
is defined in subdivision two of section four hundred of the correction
law, consisting of providing custody, or medical or mental health
services for such inmates; or
(f) committed to the care and custody of a local correctional facili-
ty, as such term is defined in subdivision two of section forty of the
correction law, and the actor is an employee, not married to such
person, who knows or reasonably should know that such person is commit-
ted to the care and custody of such facility. For purposes of this para-
graph, "employee" means an employee of the local correctional facility
where the person is committed who performs professional duties consist-
ing of providing custody, medical or mental health services, counseling
services, educational services, or vocational training for inmates[. ];
or
(g) committed to or placed with the office of children and family
services and in residential care, and the actor is an employee, not
married to such person, who knows or reasonably should know that such
person is committed to or placed with such office of children and family
services and in residential care. For purposes of this paragraph,
"employee" means an employee of the office of children and family
services or of a residential facility who performs duties consisting of
providing custody, medical or mental health services, counseling
services, educational services, or vocational training for persons
committed to or placed with the office of children and family services
and in residential care; or
(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, sodomy in the third degree as defined in
section 130.40, 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.
§ 4. Section 130.10 of the penal law is amended to read as follows:
§ 130.10 Sex offenses; [defense ] limitation; defenses.
1. In any prosecution under this article in which the victim's lack of
consent is based solely upon his or her incapacity to consent because he
or she was mentally [defective ] disabled, mentally incapacitated or
physically helpless, it is an affirmative defense that the defendant, at
the time he or she engaged in the conduct constituting the offense, did
not know of the facts or conditions responsible for such incapacity to
consent.
2. Conduct performed for a valid medical or mental health care purpose
shall not constitute a violation of any section of this article in which
incapacity to consent is based on the circumstances set forth in para-
graph (h) of subdivision three of section 130.05 of this article.
3. In any prosecution for the crime of rape in the third degree as
defined in section 130.25, sodomy in the third degree as defined in
section 130.40, 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 circum-
stances 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.
§ 5. Subdivision 4 of section 260.32 of the penal law, as added by
chapter 381 of the laws of 1998, is amended to read as follows:
4. He or she subjects such person to sexual contact without the
latter's consent. Lack of consent under this subdivision results from
forcible compulsion or incapacity to consent, as those terms are defined
in article one hundred thirty of this chapter, or any other circum-
stances in which the vulnerable elderly person does not expressly or
impliedly acquiesce in the caregiver's conduct. In any prosecution under
this subdivision in which the victim's alleged lack of consent results
solely from incapacity to consent because of the victim's mental
[defect ] disability or mental incapacity, the provisions of section
130.16 of this chapter shall apply. In addition, in any prosecution
under this subdivision in which the victim's lack of consent is based
solely upon his or her incapacity to consent because he or she was
mentally [defective ] disabled, mentally incapacitated or physically
helpless, it is an affirmative defense that the defendant, at the time
he or she engaged in the conduct constituting the offense, did not know
of the facts or conditions responsible for such incapacity to consent.
§ 6. Section 130.38 of the penal law is REPEALED.
§ 7. Section 65.10 of the penal law is amended by adding a new subdi-
vision 4-a to read as follows:
4-a. Mandatory condition for sex offenders. When imposing a sentence
of probation or conditional discharge upon a person convicted of an
offense defined in article one hundred thirty, two hundred thirty-five
or two hundred sixty-three of this chapter, or section 255.25 of this
chapter, and the victim of such offense was under the age of eighteen at
the time of such offense, the court shall require, as a mandatory condi-
tion of such sentence, that such sentenced offender shall refrain from
knowingly entering into or upon any school grounds, as that term is
defined in paragraph (a) of subdivision fourteen of section 220.00 of
this chapter, or any other facility or institution primarily used for
the care or treatment of persons under the age of eighteen while one or
more of such persons under the age of eighteen are present, provided
however, that when such sentenced offender is a registered student or
participant or an employee of such facility or institution or entity
contracting therewith or has a family member enrolled in such facility
or institution, such sentenced offender may, with the written authori-
zation of his or her probation officer or the court and the superinten-
dent or chief administrator of such facility, institution or grounds,
enter such facility, institution or upon such grounds for the limited
purposes authorized by the probation officer or the court and super-
intendent or chief officer. Nothing in this subdivision shall be
construed as restricting any lawful condition of supervision that may be
imposed on such sentenced offender.
§ 8. Subdivision 13 of section 259-c of the executive law, as added by
chapter 904 of the laws of 1977, is amended and a new subdivision 14 is
added to read as follows:
13. transmit a report of the work of the state board of parole for the
preceding calendar year to the governor and the legislature annually[. ];
14. notwithstanding any other provision of law to the contrary, where
a person serving a sentence for an offense defined in article one
hundred thirty, one hundred thirty-five or two hundred sixty-three of
the penal law or section 255.25 of the penal law and the victim of such
offense was under the age of eighteen at the time of such offense, is
released on parole or conditionally released pursuant to subdivision one
or two of this section, the board shall require, as a mandatory condi-
tion of such release, that such sentenced offender shall refrain from
knowingly entering into or upon any school grounds, as that term is
defined in paragraph (a) of subdivision fourteen of section 220.00 of
the penal law, or any other facility or institution primarily used for
the care or treatment of persons under the age of eighteen while one or
more of such persons under the age of eighteen are present, provided
however, that when such sentenced offender is a registered student or
participant or an employee of such facility or institution or entity
contracting therewith or has a family member enrolled in such facility
or institution, such sentenced offender may, with the written authori-
zation of his or her parole officer and the superintendent or chief
administrator of such facility, institution or grounds, enter such
facility, institution or upon such grounds for the limited purposes
authorized by the parole officer and superintendent or chief officer.
Nothing in this subdivision shall be construed as restricting any lawful
condition of supervision that may be imposed on such sentenced offender.
§ 9. Subdivision 8 of section 272 of the correction law, as added by
chapter 79 of the laws of 1989, is amended and a new subdivision 9 is
added to read as follows:
8. have the power to transfer the legal custody of persons condi-
tionally released in accordance with the provisions of section two
hundred seventy-five of this article[. ];
9. notwithstanding any other provision of law to the contrary, where a
person serving a definite sentence for an offense defined in article one
hundred thirty, two hundred thirty-five or two hundred sixty-three of
the penal law or section 255.25 of the penal law and the victim of such
offense was under the age of eighteen at the time of such offense, is
conditionally released pursuant to section 70.40 of the penal law, the
local conditional release commission shall require, as a mandatory
condition of such release, that such sentenced offender shall refrain
from knowingly entering into or upon any school grounds, as that term is
defined in paragraph (a) of subdivision fourteen of section 220.00 of
the penal law or any other facility or institution primarily used for
the care or treatment of persons under the age of eighteen while one or
more of such persons under the age of eighteen are present, provided
however, that when such sentenced offender is a registered student or
participant or an employee of such facility or institution or entity
contracting therewith or has a family member enrolled in such facility
or institution, such sentenced offender may, with the written authori-
zation of his or her probation officer and the superintendent or chief
administrator of such facility, institution or grounds, enter such
facility, institution or upon such grounds for the limited purposes
authorized by the probation officer and superintendent or chief officer.
Nothing in this subdivision shall be construed as restricting any lawful
condition of supervision that may be imposed on such sentenced offender.
§ 10. Subdivision 3 of section 65.00 of the penal law, as amended by
chapter 471 of the laws of 1980 and the closing paragraph as added by
chapter 79 of the laws of 1985, is amended to read as follows:
3. Periods of probation. Unless terminated sooner in accordance with
the criminal procedure law, the period of probation shall be as follows:
(a) (i) For a felony, other than a class A-II felony or a class B
felony defined in article two hundred twenty of this chapter or a sexual
assault, the period of probation shall be five years;
(ii) For a class A-II felony or a class B felony defined in article
two hundred twenty of this chapter, the period of probation shall be
life;
(iii) For a felony sexual assault, the period of probation shall be
ten years.
(b) (i) For a class A misdemeanor, other than a sexual assault, the
period of probation shall be three years;
(ii) For a class A misdemeanor sexual assault, the period of probation
shall be six years.
(c) For a class B misdemeanor, the period of probation shall be one
year;
(d) For an unclassified misdemeanor, the period of probation shall be
three years if the authorized sentence of imprisonment is in excess of
three months, otherwise the period of probation shall be one year.
In any case where a court pursuant to its authority under subdivision
four of section 60.01 of this chapter revokes probation and sentences
such person to imprisonment and probation, as provided in paragraph (d)
of subdivision two of section 60.01 of this chapter, the period of
probation shall be the remaining period of the original probation
sentence or one year whichever is greater.
For purposes of this section, the term "sexual assault" means an
offense defined in article one hundred thirty or two hundred sixty-three
or in section 255.25 of this chapter, or an attempt to commit any of the
foregoing offenses.
§ 11. Subdivision 2 of section 60.20 of the criminal procedure law, as
amended by chapter 133 of the laws of 1975, is amended to read as
follows:
2. Every witness more than [twelve ] nine years old may testify only
under oath unless the court is satisfied that such witness cannot, as a
result of mental disease or defect, understand the nature of an oath. A
[child ] witness less than [twelve ] nine years old may not testify under
oath unless the court is satisfied that he or she understands the nature
of an oath. If in either case the court is not so satisfied, [such
child or such witness over twelve years old who cannot, as a result of
mental disease or defect, understand the nature of an oath ] the witness
may nevertheless be permitted to give unsworn evidence if the court is
satisfied that the witness possesses sufficient intelligence and capaci-
ty to justify the reception thereof. A witness understands the nature of
an oath if he or she appreciates the difference between truth and false-
hood, the necessity for telling the truth, and the fact that a witness
who testifies falsely may be punished.
§ 12. Subdivision 3 of section 530.40 of the criminal procedure law is
amended to read as follows:
3. Notwithstanding the provisions of subdivision two, a superior court
may not order recognizance or bail, or permit a defendant to remain at
liberty pursuant to an existing order, after he has been convicted of
either: (a) a class A felony[, but ] or (b) any class B or class C felony
defined in article one hundred thirty of the penal law committed or
attempted to be committed against a person less than eighteen years of
age. In either case the court must commit or remand the defendant to the
custody of the sheriff.
§ 13. Subdivision 1 of section 530.45 of the criminal procedure law,
as added by chapter 435 of the laws of 1974, is amended to read as
follows:
1. When the defendant is at liberty in the course of a criminal
action as a result of a prior order of recognizance or bail and the
court revokes such order and then either fixes no bail or fixes bail in
a greater amount or in a more burdensome form than was previously fixed
and remands or commits defendant to the custody of the sheriff, a judge
designated in subdivision two, upon application of the defendant follow-
ing conviction of an offense other than a class A felony or any felony
defined in article one hundred thirty of the penal law when such felony
is a class B or class C felony committed or attempted to be committed
against a person less than eighteen years of age, and before sentencing,
may issue a securing order and either release defendant on his own
recognizance, or fix bail, or fix bail in a lesser amount or in a less
burdensome form than fixed by the court in which the conviction was
entered.
§ 14. Section 530.50 of the criminal procedure law is amended to read
as follows:
§ 530.50 Order of recognizance or bail; during pendency of appeal.
A judge who is otherwise authorized pursuant to section 460.50 or
section 460.60 to issue an order of recognizance or bail pending the
determination of an appeal, may do so unless the defendant received a
class A felony sentence or a sentence for a felony, other than a class D
or class E felony, defined in article one hundred thirty of the penal
law and committed or attempted to be committed against a person less
than eighteen years of age.
§ 15. Paragraph (a) of subdivision 1 of section 168-b of the
correction law, as added by chapter 192 of the laws of 1995, is amended
to read as follows:
(a) The sex offender's name, all aliases used, date of birth, sex,
race, height, weight, eye color, driver's license number, home address
and/or expected place of domicile, any internet accounts belonging to
such offender and any internet screen names used by such offender.
§ 16. Subdivision 2 of section 168-p of the correction law, as added
by chapter 192 of the laws of 1995, is amended to read as follows:
2. When the "900" number is called, a preamble shall be played before
charges begin to accrue. The preamble shall run at least the length of
time required by federal law and shall provide the following informa-
tion:
(a) notice that the caller's telephone number will be recorded;
(b) notice that the [charges ] charge for use of the "900" number is
fifty cents;
(c) notice that the caller is required to identify himself or herself
to the operator and provide current address and shall be maintained in a
written record;
(d) notice that the caller is required to be eighteen years of age or
older;
(e) a warning that it is illegal to use information obtained through
the "900" number to commit a crime against any person listed or to
engage in illegal discrimination or harassment against such person;
(f) notice that the caller is required to have the birth date, driv-
er's license or identification number, or address or other identifying
information regarding the person about whom information is sought in
order to achieve a positive identification of that person;
(g) a statement that the number is not a crime hotline and that any
suspected criminal activity should be reported to local authorities[. ];
(h) a statement that an information package which will include a
description of the law and sex abuse and abduction prevention materials
is available upon request from the division. Such information package
shall include questions and answers regarding the most commonly asked
questions about the sex offender registration act, and current sex abuse
and abduction prevention material.
§ 17. Section 168-p of the correction law is amended by adding a new
subdivision 2-a to read as follows:
2-a. The charge imposed for use of the "900" telephone number
described in this section shall be in the amount of fifty cents.
§ 18. Subdivisions 1 and 2 of section 263.00 of the penal law, as
added by chapter 910 of the laws of 1977, are amended to read as
follows:
1. "Sexual performance" means any performance or part thereof which,
for purposes of section 263.16 of this article, includes sexual conduct
by a child less than sixteen years of age or, for purposes of section
263.05 or 263.15 of this article, includes sexual conduct by a child
less than seventeen years of age.
2. "Obscene sexual performance" means any performance which, for
purposes of section 263.11 of this article, includes sexual conduct by a
child less than sixteen years of age or, for purposes of section 263.10
of this article, includes sexual conduct by a child less than seventeen
years of age, in any material which is obscene, as such term is defined
in section 235.00 of this chapter.
§ 19. Section 263.05 of the penal law, as added by chapter 910 of the
laws of 1977, is amended to read as follows:
§ 263.05 Use of a child in a sexual performance.
A person is guilty of the use of a child in a sexual performance if
knowing the character and content thereof he employs, authorizes or
induces a child less than [sixteen ] seventeen years of age to engage in
a sexual performance or being a parent, legal guardian or custodian of
such child, he consents to the participation by such child in a sexual
performance.
Use of a child in a sexual performance is a class C felony.
§ 20. Section 263.10 of the penal law, as added by chapter 910 of the
laws of 1977, is amended to read as follows:
§ 263.10 Promoting an obscene sexual performance by a child.
A person is guilty of promoting an obscene sexual performance by a
child when, knowing the character and content thereof, he produces,
directs or promotes any obscene performance which includes sexual
conduct by a child less than [sixteen ] seventeen years of age.
Promoting an obscene sexual performance by a child is a class D felo-
ny.
§ 21. Section 263.15 of the penal law, as added by chapter 910 of the
laws of 1977, is amended to read as follows:
§ 263.15 Promoting a sexual performance by a child.
A person is guilty of promoting a sexual performance by a child when,
knowing the character and content thereof, he produces, directs or
promotes any performance which includes sexual conduct by a child less
than [sixteen ] seventeen years of age.
Promoting a sexual performance by a child is a class D felony.
§ 22. Subdivision 1 of section 263.20 of the penal law, as added by
chapter 910 of the laws of 1977, is amended to read as follows:
1. Under this article, it shall be an affirmative defense that the
defendant in good faith reasonably believed the person appearing in the
performance was, for purposes of section 263.11 or 263.16 of this arti-
cle, sixteen years of age or over or, for purposes of section 263.05,
263.10 or 263.15 of this article, seventeen years of age or over.
§ 23. Section 263.25 of the penal law, as added by chapter 910 of the
laws of 1977, is amended to read as follows:
§ 263.25 Proof of age of child.
Whenever it becomes necessary for the purposes of this article to
determine whether a child who participated in a sexual performance was
under [the age of sixteen years ] an age specified in this article, the
court or jury may make such determination by any of the following:
personal inspection of the child; inspection of a photograph or motion
picture which constituted the sexual performance; oral testimony by a
witness to the sexual performance as to the age of the child based upon
the child's appearance; expert medical testimony based upon the appear-
ance of the child in the sexual performance; and any other method
authorized by any applicable provision of law or by the rules of
evidence at common law.
§ 24. The public health law is amended by adding a new article 6-A to
read as follows:
ARTICLE 6-A
RAPE CRISIS INTERVENTION AND PREVENTION PROGRAM
Section 695. Short title.
695-a. Definitions.
695-b. Authorization of programs.
695-c. Technical assistance.
695-d. Evaluation and reports.
695-e. Assistance of other agencies.
§ 695. Short title. This article shall be known and may be cited as
the "rape crisis intervention and prevention act of two thousand".
§ 695-a. Definitions. As used in this article:
1. "Rape crisis intervention and prevention program" means any program
which has been approved by the department offering counseling and
assistance to clients concerning sex offenses, sexual abuse, or incest.
9 CHAP. 1

2. "Community support system" means a system of service providers in a
community designed to meet the needs of a victim of a sex offense, sexu-
al abuse or incest.
3. "Comprehensive services" means hotline, counseling, community
prevention, recruitment and training programs, accompaniment services,
and referral.
4. "Counseling" means individual communication and interaction which
helps the client make choices and act upon those choices, provided to a
client concerning any sex offense, sexual abuse, incest, or attempt to
commit a sex offense, sexual abuse, or incest.
5. "Client" means any person seeking or receiving the services of a
rape crisis counselor for the purpose of securing counseling or assist-
ance concerning any sex offense, sexual abuse, incest, or attempt to
commit a sex offense, sexual abuse, or incest.
6. "Hotline" means twenty-four-hour access to rape crisis intervention
and prevention services including telephone hotline and telephone coun-
seling capabilities.
7. "Community prevention" means public education projects designed to
encourage victim use of rape crisis intervention services, educating the
general public about the availability and significance of rape crisis
intervention services, providing sex offense, sexual abuse or incest
prevention and personal safety information, providing other education
programs which sensitize service providers and the general public about
the nature of sex offenses, sexual abuse or incest and the needs of
survivors of a sex offense, sexual abuse or incest. "Community
prevention" also means and includes public education projects designed
to teach the general public about the problem of acquaintance rape,
including but not limited to: (a) the importance of promptly respecting
the decision of another person not to engage in sexual conduct; and (b)
the right of every individual to make such a decision and have it
respected.
8. "Recruitment and training programs" means programs designed to
recruit and train staff or volunteers in a rape crisis intervention and
prevention program as well as training or education to other agencies
participating in a community support system.
9. "Accompaniment services" means services that assure the presence of
a trained rape crisis worker to assist and support the client, at hospi-
tals, law enforcement agencies, district attorney's office, courts and
other agencies.
10. "Referral" means referral to and assistance with medical services
and services of criminal justice agencies, mental health agencies, or
other entities providing related services.
§ 695-b. Authorization of programs. 1. The department is hereby
authorized to contract, within amounts appropriated, for the provision
of rape crisis intervention and prevention programs as provided herein.
Rules, regulations and guidelines as shall be necessary or appropriate
to assure successful implementation of this program shall be promulgated
by the department.
2. Nothing contained in this section shall prohibit a program, with
the approval of the department, from subcontracting for, or otherwise
ensuring that the required services are available.
§ 695-c. Technical assistance. The department shall provide or arrange
to provide technical assistance as requested and necessary to programs
to develop appropriate services and train staff, improve coordination
with other appropriate support services, the criminal justice system and
other appropriate officials and services.
§ 695-d. Evaluation and reports. The department shall undertake a
comprehensive evaluation of each program periodically and in addition
shall monitor each program's compliance with the requirements of this
article. The evaluation shall measure uniform indicators of program
operation and effectiveness. The department shall report to the gover-
nor and the legislature concerning its evaluation of all programs with
any recommendations for change not later than January fifteenth, two
thousand three and every three years thereafter.
§ 695-e. Assistance of other agencies. To effectuate the purposes of
this article, the department may request from any department, board,
bureau, commission or other agency of the state, and the same are
authorized to provide, such assistance, services and data as will enable
the department to assure that the provisions and intent of this article
are carried out.
§ 25. Section 2805-i of the public health law is amended by adding
two new subdivisions 4-a and 4-b to read as follows:
4-a. On and after April first, two thousand one, a hospital providing
treatment to alleged victims of sexual offenses shall be eligible to
receive from the division of criminal justice services, at no cost,
sexual offense evidence collection kits.
4-b. (a) The commissioner shall, with the consent of the directors of
interested hospitals in the state and in consultation with the commis-
sioner of the division of criminal justice services, designate hospitals
in the state as the sites of a twenty-four hour sexual assault forensic
examiner program. The hospital sites shall be designated in urban,
suburban and rural areas to give as many state residents as possible
ready access to the sexual assault forensic examiner program. The
commissioner, in consultation with the commissioner of the division of
criminal justice services, shall consider the following criteria when
designating these sexual assault forensic examiner program sites:
(1) the location of the hospital;
(2) the hospital's capacity to provide on-site comprehensive medical
services to victims of sexual offenses;
(3) the capacity of the hospital site to coordinate services for
victims of sexual offenses including medical treatment, rape crisis
counseling, psychological support, law enforcement assistance and foren-
sic evidence collection;
(4) the hospital's capacity to provide access to the sexual assault
forensic examiner site for disabled victims;
(5) the hospital's existing services for victims of sexual offenses;
(6) the capacity of the hospital site to collect uniform data and
insure confidentiality of such data; and
(7) the hospital's compliance with state and federally mandated stand-
ards of medical care.
(b) Each sexual assault forensic examiner program site designated
pursuant to this subdivision shall comply with the requirements of
subdivisions one, two and three of this section, and shall also provide
treatment to the victim as follows:
(1) The victim shall, absent exigent circumstances, be met by a sexual
assault forensic examiner within sixty minutes of arriving at the hospi-
tal, who shall be a nurse practitioner, registered nurse or physician
specially trained in forensic examination of sexual offense victims and
the preservation of forensic evidence in such cases and certified as
qualified to provide such services pursuant to regulations promulgated
by the commissioner. Such program shall assure that such a specially-
trained forensic examiner is on-call and available on a twenty-four hour
a day basis every day of the year.
(2) An examination of the victim shall be performed promptly by such
forensic examiner in a private room designated for such examinations.
An obstetrician/gynecologist or other appropriate medical doctor shall
be readily available to the forensic examiner if there is a need for
more specialized medical evaluation or treatment.
(3) Promptly after the examination is completed, the victim shall be
permitted to shower, be provided with a change of clothing, and receive
follow-up information, counseling, medical treatment and referrals for
same.
(c) Nothing in this subdivision shall affect the existence or contin-
ued existence of any program in this state through which a trained nurse
practitioner, registered nurse or physician is providing appropriate
forensic examinations and related services to survivors of sexual
assault.
§ 26. Subdivision 5 of section 2805-i of the public health law, as
amended by chapter 504 of the laws of 1994, is amended to read as
follows:
5. The commissioner shall promulgate such rules and regulations as may
be necessary and proper to carry out effectively the provisions of this
section. Prior to promulgating such rules and regulations, the commis-
sioner shall consult with relevant police agencies, forensic laborato-
ries, rape crisis centers, hospitals, and other such persons as the
commissioner deems necessary. Such rules and regulations shall identify
the offenses subject to the provisions of this section, provide a
specific definition of sexual offense evidence and require each hospital
to contact its local police agency and forensic laboratory to determine
their specific needs or requirements.
§ 27. Section 2805-i of the public health law is amended by adding a
new subdivision 6 to read as follows:
6. On or before November thirtieth, two thousand two, the commissioner
shall make a report to the governor, the temporary president of the
senate and the speaker of the assembly concerning the sexual assault
forensic examiner program established under subdivision four-b of this
section. Such report shall include an evaluation of the efficacy of
such program in obtaining useful forensic evidence in sexual offense
cases and assuring quality treatment to sex offense victims. Such
report shall also recommend whether this program should be expanded and
shall estimate the financial cost, if any, of such expansion.
§ 28. Subdivision 1 of section 631 of the executive law, as amended by
chapter 244 of the laws of 1994, is amended to read as follows:
1. No award shall be made unless the board or board member, as the
case may be, finds that (a) a crime was committed, (b) such crime
directly resulted in personal physical injury to, or death of, the
victim, and (c) criminal justice agency records show that such crime was
promptly reported to the proper authorities; and in no case may an award
be made where the criminal justice agency records show that such report
was made more than one week after the occurrence of such crime unless
the board, for good cause shown, finds the delay to have been justified;
provided, however, in cases involving an alleged sex offense as
contained in article one hundred thirty of the penal law or incest as
defined in section 255.25 of the penal law or an offense chargeable as a
family offense [over which the family court has jurisdiction pursuant
to ] as described in section eight hundred twelve of the family court act
or section 530.11 of the criminal procedure law, the criminal justice
agency report need only be made within a reasonable time considering all
the circumstances, including the victim's physical, emotional and mental
condition and family situation. For the purposes of this subdivision,
"criminal justice agency" shall include, but not be limited to, a police
department, a district attorney's office, and any other governmental
agency having responsibility for the enforcement of the criminal laws of
the state provided, however, that in cases involving such sex offense a
criminal justice agency shall also mean a family court, a governmental
agency responsible for child and/or adult protective services pursuant
to article six of title six of the social services law and/or article
nine-b of title one of the social services law, and any medical facility
established under the laws of the state that provides a forensic phys-
ical examination for victims of rape and sexual assault.
§ 29. Subdivision (e) of schedule I of section 3306 of the public
health law is amended by adding a new paragraph 4 to read as follows:
(4) Gamma hydroxybutyric acid, and salt, hydroxybutyric compound,
derivative or preparation of gamma hydroxybutyric acid, including any
isomers esters and ethers and salts of isomers, esters and ethers of
gamma hydroxybutyric acid, except gamma-butyrolactone, whenever the
existence of such isomers, esters and salts is possible within the
specific chemical.
§ 30. Subdivision (c) of schedule III of section 3306 of the public
health law is amended by adding a new paragraph 12 to read as follows:
(12) Gamma hydroxybutyric acid, and salt, hydroxybutyric compound,
derivative or preparation of gamma hydroxybutyric acid, including any
esters and ethers and salts of isomers, esters and ethers of gamma
hydroxybutyric acid, contained in a drug product for which an applica-
tion has been approved under section 505 of the federal food, drug and
cosmetic act.
§ 31. Section 130.20 of the penal law is amended to read as follows:
§ 130.20 Sexual misconduct.
A person is guilty of sexual misconduct when:
1. [Being a male, he ] He or she engages in sexual intercourse with [a
female ] another person without [her ] such person's consent; or
2. He or she engages in deviate sexual intercourse with another person
without [the latter's ] such person's consent; or
3. He or she engages in sexual conduct with an animal or a dead human
body.
Sexual misconduct is a class A misdemeanor.
§ 32. Section 130.25 of the penal law, as amended by chapter 510 of
the laws of 1987, is amended to read as follows:
§ 130.25 Rape in the third degree.
A person is guilty of rape in the third degree when:
1. He or she engages in sexual intercourse with another person [to
whom the actor is not married ] who is incapable of consent by reason of
some factor other than being less than seventeen years old; [or ]
2. Being twenty-one years old or more, he or she engages in sexual
intercourse with another person [to whom the actor is not married ] less
than seventeen years old[. ]; or
3. He or she engages in sexual intercourse with another person without
such person's consent where such lack of consent is by reason of some
factor other than incapacity to consent.
Rape in the third degree is a class E felony.
§ 33. Section 130.30 of the penal law, as amended by chapter 510 of
the laws of 1987, is amended to read as follows:
§ 130.30 Rape in the second degree.
A person is guilty of rape in the second degree when[, ]:
1. being eighteen years old or more, he or she engages in sexual
intercourse with another person [to whom the actor is not married ] less
than [fourteen ] fifteen years old[. ]; or
2. he or she engages in sexual intercourse 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 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.
Rape in the second degree is a class D felony.
§ 34. Section 130.35 of the penal law is amended to read as follows:
§ 130.35 Rape in the first degree.
A [male ] person is guilty of rape in the first degree when he or she
engages in sexual intercourse with [a female ] 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.
Rape in the first degree is a class B felony.
§ 35. Section 130.40 of the penal law is amended to read as follows:
§ 130.40 Sodomy in the third degree.
A person is guilty of sodomy in the third degree when:
1. He or she engages in deviate sexual intercourse with a person who
is incapable of consent by reason of some factor other than being less
than seventeen years old; [or ]
2. Being twenty-one years old or more, he or she engages in deviate
sexual intercourse with a person less than seventeen years old[. ]; or
3. He or she engages in deviate sexual intercourse with another person
without such person's consent where such lack of consent is by reason of
some factor other than incapacity to consent.
Sodomy in the third degree is a class E felony.
§ 36. Section 130.45 of the penal law is amended to read as follows:
§ 130.45 Sodomy in the second degree.
A person is guilty of sodomy in the second degree when[, ]:
1. being eighteen years old or more, he or she engages in deviate
sexual intercourse with another person less than [fourteen ] fifteen
years old[. ]; or
2. he or she engages in deviate sexual intercourse 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 sodomy 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.
Sodomy in the second degree is a class D felony.
§ 37. Section 130.50 of the penal law is amended to read as follows:
§ 130.50 Sodomy in the first degree.
A person is guilty of sodomy in the first degree when he or she
engages in deviate sexual intercourse 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.
Sodomy in the first degree is a class B felony.
§ 38. The penal law is amended by adding a new section 130.53 to read
as follows:
§ 130.53 Persistent sexual abuse.
A person is guilty of persistent sexual abuse when he or she stands
convicted of sexual abuse in the third degree, as defined in section
130.55 of this article, or sexual abuse in the second degree, as defined
in section 130.60 of this article, and, within the previous ten year
period, has been convicted two or more times, in separate criminal tran-
sactions for which sentence was imposed on separate occasions, of sexual
abuse in the third degree as defined in section 130.55 of this article,
or sexual abuse in the second degree, as defined in section 130.60 of
this article.
Persistent sexual abuse is a class E felony.
§ 39. Section 130.55 of the penal law is amended to read as follows:
§ 130.55 Sexual abuse in the third degree.
A person is guilty of sexual abuse in the third degree when he or she
subjects another person to sexual contact without the latter's consent;
except that in any prosecution under this section, it is an affirmative
defense that (a) such other person's lack of consent was due solely to
incapacity to consent by reason of being less than seventeen years old,
and (b) such other person was more than fourteen years old, and (c) the
defendant was less than five years older than such other person.
Sexual abuse in the third degree is a class B misdemeanor.
§ 40. Section 130.60 of the penal law is amended to read as follows:
§ 130.60 Sexual abuse in the second degree.
A person is guilty of sexual abuse in the second degree when he or she
subjects another person to sexual contact and when such other person is:
1. Incapable of consent by reason of some factor other than being less
than seventeen years old; or
2. Less than fourteen years old.
Sexual abuse in the second degree is a class A misdemeanor.
§ 41. Section 130.65 of the penal law is amended to read as follows:
§ 130.65 Sexual abuse in the first degree.
A person is guilty of sexual abuse in the first degree when he or she
subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by reason of being
physically helpless; or
3. When the other person is less than eleven years old.
Sexual abuse in the first degree is a class D felony.
§ 42. The penal law is amended by adding a new section 130.65-a to
read as follows:
§ 130.65-a Aggravated sexual abuse in the fourth degree.
1. A person is guilty of aggravated sexual abuse in the fourth degree
when:
(a) He or she inserts a foreign object in the vagina, urethra, penis
or rectum of another person and the other person is incapable of consent
by reason of some factor other than being less than seventeen years old;
or
(b) He or she inserts a finger in the vagina, urethra, penis or rectum
of another person causing physical injury to such person and such person
is incapable of consent by reason of some factor other than being less
than seventeen years old.
2. Conduct performed for a valid medical purpose does not violate the
provisions of this section.
Aggravated sexual abuse in the fourth degree is a class E felony.
§ 43. Subdivision 2 of section 130.66 of the penal law is renumbered
subdivision 3 and a new subdivision 2 is added to read as follows:
2. A person is guilty of aggravated sexual abuse in the third degree
when he or she inserts a foreign object in the vagina, urethra, penis or
rectum of another person causing physical injury to such person and such
person is incapable of consent by reason of being mentally disabled or
mentally incapacitated.
§ 44. Sections 130.75 and 130.80 of the penal law, as added by chapter
122 of the laws of 1996, are amended to read as follows:
§ 130.75 Course of sexual conduct against a child in the first degree.
[(a) ] 1. A person is guilty of course of sexual conduct against a
child in the first degree when, over a period of time not less than
three months in duration[, ]:
(a) he or she engages in two or more acts of sexual conduct, which
includes at least one act of sexual intercourse, deviate sexual inter-
course or aggravated sexual contact, with a child less than eleven years
old[. ]; or
(b) he or she, being eighteen years old or more, engages in two or
more acts of sexual conduct, which includes at least one act of sexual
intercourse, deviate sexual intercourse or aggravated sexual contact,
with a child less than thirteen years old.
[(b) ] 2. A person may not be subsequently prosecuted for any other
sexual offense involving the same victim unless the other charged
offense occurred outside the time period charged under this section.
Course of sexual conduct against a child in the first degree is a
class B felony.
§ 130.80 Course of sexual conduct against a child in the second degree.
[(a) ] 1. A person is guilty of course of sexual conduct against a
child in the second degree when, over a period of time not less than
three months in duration[, ]:
(a) he or she engages in two or more acts of sexual conduct with a
child less than eleven years old[. ]; or
(b) he or she, being eighteen years old or more, engages in two or
more acts of sexual conduct with a child less than thirteen years old.
[(b) ] 2. A person may not be subsequently prosecuted for any other
sexual offense involving the same victim unless the other charged
offense occurred outside the time period charged under this section.
Course of sexual conduct against a child in the second degree is a
class D felony.
§ 45. Subdivision 2 of section 130.05 of the penal law is amended to
read as follows:
2. Lack of consent results from:
(a) Forcible compulsion; or
(b) Incapacity to consent; or
(c) Where the offense charged is sexual abuse, any circumstances, in
addition to forcible compulsion or incapacity to consent, in which the
victim does not expressly or impliedly acquiesce in the actor's
conduct[. ]; or
(d) Where the offense charged is rape in the third degree as defined
in subdivision three of section 130.25, or sodomy in the third degree as
defined in subdivision three of section 130.40, in addition to forcible
compulsion, circumstances under which, at the time of the act of inter-
course or deviate sexual intercourse, 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
circumstances.
§ 46. Section 300.50 of the criminal procedure law is amended by
adding a new subdivision 6 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 sodomy in the third degree as defined in subdivision three of
section 130.40 of the penal law, are not lesser included offenses of
rape in the first degree, sodomy 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.
§ 47. The criminal procedure law is amended by adding a new section
200.62 to read as follows:
§ 200.62 Indictment; special information for child sexual assault offen-
der.
1. Whenever a person is charged with the commission or attempted
commission of an offense defined in article one hundred thirty of the
penal law which constitutes a felony and it appears that the victim of
such offense was less than fifteen years old, an indictment for such
offense may be accompanied by a special information, filed by the
district attorney with the court, alleging that the victim was less than
fifteen years old at the time of the commission of the offense;
provided, however, that such an information need not be filed when the
age of the victim is an element of the offense.
2. Prior to trial, or after the commencement of the trial but before
the close of the people's case, the court, in the absence of the jury,
must arraign the defendant upon such information and advise him that he
may admit such allegation, deny it or remain mute. Depending upon the
defendant's response, the trial of the indictment must proceed as
follows:
(a) If the defendant admits that the alleged victim was less than
fifteen years old at the time of the commission or attempted commission
of the offense, that allegation shall be deemed established for all
subsequent purposes, including sentencing pursuant to section 70.07 of
the penal law.
(b) If the defendant denies such allegation or remains mute, the
people may, by proof beyond a reasonable doubt, prove before the jury
or, where the defendant has waived a jury trial, the court, that the
alleged victim was less than fifteen years old at the time of the
commission or attempted commission of the offense.
3. Where a jury, pursuant to paragraph (b) of subdivision two of this
section, makes the determination of whether the alleged victim of the
offense was less than fifteen years old, such jury shall consider and
render its verdict on such issue only after rendering its verdict with
regard to the offense.
4. A determination pursuant to this section that the victim was less
than fifteen years old at the time of the commission of the offense
shall be binding in any future proceeding in which the issue may arise
unless the underlying conviction or determination is vacated or
reversed.
§ 48. The criminal procedure law is amended by adding a new section
240.75 to read as follows:
§ 240.75 Discovery; certain violations.
The failure of the prosecutor or any agent of the prosecutor to
disclose statements that are required to be disclosed under subdivision
one of section 240.44 or paragraph (a) of subdivision one of section
240.45 of this article shall not constitute grounds for any court to
order a new pre-trial hearing or set aside a conviction, or reverse,
modify or vacate a judgment of conviction in the absence of a showing by
the defendant that there is a reasonable possibility that the non-dis-
closure materially contributed to the result of the trial or other
proceeding; provided, however, that nothing in this section shall affect
or limit any right the defendant may have to a re-opened pre-trial hear-
ing when such statements were disclosed before the close of evidence at
trial.
§ 49. The penal law is amended by adding a new section 130.90 to read
as follows:
§ 130.90 Facilitating a sex offense with a controlled substance.
A person is guilty of facilitating a sex offense with a controlled
substance when he or she:
1. knowingly and unlawfully possesses a controlled substance and
administers such substance to another person without such person's
consent and with intent to commit against such person conduct constitut-
ing a felony defined in this article; and
2. commits or attempts to commit such conduct.
Facilitating a sex offense with a controlled substance is a class D
felony.
§ 50. The penal law is amended by adding a new section 70.07 to read
as follows:
§ 70.07 Sentence of imprisonment for second child sexual assault felony
offender.
1. A person who stands convicted of a felony offense for a sexual
assault against a child, having been subjected to a predicate felony
conviction for such a sexual assault against a child, must be sentenced
in accordance with the provisions of subdivision four of this section.
2. A "sexual assault against a child" means a felony offense (a) the
essential elements of which include the commission or attempted commis-
sion of sexual conduct, as defined in subdivision ten of section 130.00
of this chapter, (b) committed or attempted to be committed against a
child less than fifteen years old.
3. For purposes of determining whether a person has been subjected to
a predicate felony conviction under this section, the criteria set forth
in paragraph (b) of subdivision one of section 70.06 shall apply
provided however that for purposes of this subdivision, the terms "ten
year" or "ten years", as provided in subparagraphs (iv) and (v) of para-
graph (b) of subdivision one of such section 70.06, shall be "fifteen
year" or "fifteen years". The provisions of section 400.19 of the crim-
inal procedure law shall govern the procedures that must be followed to
determine whether a person who stands convicted of a sexual assault
against a child has been previously subjected to a predicate felony
conviction for such a sexual assault.
4. Where the court has found pursuant to subdivision three of this
section that a person who stands convicted of a felony offense defined
in article one hundred thirty of this chapter for the commission or
attempted commission of a sexual assault against a child has been
subjected to a predicate felony conviction for a sexual assault against
a child, the court shall sentence the defendant as follows:
(a) where the defendant stands convicted of such sexual assault
against a child and such conviction is for a class B felony offense, and
the predicate conviction for such sexual assault against a child is for
a class B or class C felony offense, the court shall impose an indeter-
minate sentence of imprisonment, the maximum term of which shall be life
and the minimum period of which shall be at least fifteen years and no
more than twenty-five years;
(b) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class C felony offense, and
the predicate conviction for such sexual assault against a child is for
a class B or class C felony offense, the court shall impose a determi-
nate sentence of imprisonment, the term of which must be at least twelve
years and must not exceed thirty years; provided however, that if the
court determines that a longer sentence is warranted, the court, in lieu
of imposing such sentence of imprisonment, may impose an indeterminate
sentence of imprisonment, the maximum term of which shall be life and
the minimum period of which shall be at least fifteen years and no more
than twenty-five years;
(c) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class B felony offense, and
the predicate conviction for such sexual assault against a child is for
a class D or class E felony offense, the court shall impose a determi-
nate sentence of imprisonment, the term of which must be at least twelve
years and must not exceed thirty years;
(d) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class C felony offense, and
the predicate conviction for such sexual assault against a child is for
a class D or class E felony offense, the court shall impose a determi-
nate sentence of imprisonment, the term of which must be at least ten
years and must not exceed twenty-five years;
(e) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class D felony offense, and
the predicate conviction for such sexual assault against a child is for
a felony offense, the court shall impose a determinate sentence of
imprisonment, the term of which must be at least five years and must not
exceed fifteen years; and
(f) where the defendant stands convicted of such sexual assault
against a child and the conviction is for a class E felony offense, and
the predicate conviction for such sexual assault against a child is for
a felony offense, the court shall impose a determinate sentence of
imprisonment, the term of which must be at least four years and must not
exceed twelve years.
§ 51. The criminal procedure law is amended by adding a new section
400.19 to read as follows:
§ 400.19 Procedure for determining whether defendant is a second child
sexual assault felony offender.
1. Applicability. The provisions of this section govern the procedure
that must be followed in any case where it appears that a defendant who
stands convicted of a felony offense for a sexual assault upon a child
as defined in section 70.07 of the penal law has previously been
convicted of a predicate felony for a sexual assault upon a child.
2. Statement to be filed. When information available to the people
prior to the trial of a felony offense for a sexual assault upon a child
indicates that the defendant may have previously been subjected to a
predicate felony conviction for such a sexual assault, a statement may
be filed by the prosecutor at any time before trial commences setting
forth the date and place of each alleged predicate felony conviction for
a sexual assault upon a child.
3. Preliminary examination. The defendant must be given a copy of such
statement and the court must ask him whether he wishes to controvert any
allegation made therein. If the defendant wishes to controvert any alle-
gation in the statement, he must specify the particular allegation or
allegations he wishes to controvert. Uncontroverted allegations in the
statement shall be deemed to have been admitted by the defendant.
4. Cases where further hearing is not required. Where the uncontro-
verted allegations in the statement are sufficient to support a finding
that the defendant has been subjected to a predicate felony conviction
for a sexual assault upon a child the court must enter such finding and
when imposing sentence must sentence the defendant in accordance with
the provisions of section 70.07 of the penal law.
5. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement, the court must proceed to
hold a hearing.
6. Manner of conducting hearing. (a) A hearing pursuant to this
section must be before the court without jury. The burden of proof is
upon the people and a finding that the defendant has been subjected to a
predicate felony conviction for a sexual assault upon a child must be
based upon proof beyond a reasonable doubt by evidence admissible under
the rules applicable to a trial of the issue of guilt.
(b) Regardless of whether the age of the victim is an element of the
alleged predicate felony offense, where the defendant controverts an
allegation that the victim of an alleged sexual assault upon a child was
less than fifteen years old, the people may prove that the child was
less than fifteen years old by any evidence admissible under the rules
applicable to a trial of the issue of guilt. For purposes of determining
whether a child was less than fifteen years old, the people shall not be
required to prove that the defendant knew the child was less than
fifteen years old at the time of the alleged sexual assault.
(c) A previous conviction in this or any other jurisdiction which was
obtained in violation of the rights of the defendant under the applica-
ble provisions of the constitution of the United States must not be
counted in determining whether the defendant has been subjected to a
predicate felony conviction for a sexual assault upon a child. The
defendant may, at any time during the course of the hearing hereunder,
controvert an allegation with respect to such conviction in the state-
ment on the grounds that the conviction was unconstitutionally obtained.
Failure to challenge the previous conviction in the manner provided
herein constitutes a waiver on the part of the defendant of any allega-
tion of unconstitutionality unless good cause be shown for such failure
to make timely challenge.
(d) At the conclusion of the hearing the court must make a finding as
to whether or not the defendant has been subjected to a predicate felony
conviction for a sexual assault upon a child.
7. Subsequent use of predicate felony conviction finding. Where a
finding has been entered pursuant to this section, such finding shall be
binding in any future proceeding in which the issue may arise.
§ 52. Section 70.25 of the penal law is amended by adding a new subdi-
vision 2-f to read as follows:
2-f. Whenever a person is convicted of facilitating a sex offense with
a controlled substance as defined in section 130.90 of this chapter, the
sentence imposed by the court for such offense may be ordered to run
consecutively to any sentence imposed upon conviction of an offense
defined in article one hundred thirty of this chapter arising from the
same criminal transaction.
§ 53. The penal law is amended by adding a new section 130.52 to read
as follows:
§ 130.52 Forcible touching.
A person is guilty of forcible touching when such person inten-
tionally, and for no legitimate purpose, forcibly touches the sexual or
other intimate parts of another person:
1. for the purpose of degrading or abusing such person; or
2. for the purpose of gratifying the actor's sexual desire.
For the purposes of this section, forcible touching includes the
squeezing, grabbing or pinching of such other person's sexual or other
intimate parts.
Forcible touching is a class A misdemeanor.
§ 54. (Intentionally Omitted).
§ 55. Section 220.60 of the criminal procedure law is amended by
adding a new subdivision 4 to read as follows:
4. When a special information has been filed pursuant to section
200.61 or 200.62 of this chapter, a defendant may enter a plea of guilty
to the count or counts of the indictment to which the special informa-
tion applies without admitting the allegations of the special informa-
tion. Whenever a defendant enters a plea of guilty to the count or
counts of the indictment to which the special information applies with-
out admitting the allegations of the special information, the court
must, unless the people consent otherwise, conduct a hearing in accord-
ance with paragraph (b) of subdivision two of section 200.62 or para-
graph (b) of subdivision three of section 200.61 of this chapter, which-
ever is applicable.
§ 56. The legislature hereby finds and declares that the nomenclature
used to describe certain terms and crimes contained in article 130 of
the penal law should be modernized. The legislature further finds that
certain crimes in such article punish criminal sexual assaults in
different sections of such article under different headings, which could
more appropriately be combined into a new crime to be known as criminal
sexual assault. The legislature therefore intends to modernize and
consolidate such language in subsequent legislation.
§ 57. This act shall take effect February 1, 2001; provided that:
(a) the amendments made to section 272 of the correction law by
section nine of this act shall not affect the expiration of such section
pursuant to chapter 79 of the laws of 1989 as amended and shall expire
and be deemed repealed therewith;
(b) the amendments made to paragraph (b) of subdivision 2 of section
168-p of the correction law by section 16 of this act shall expire on
September 1, 2001 when upon such date such amendment shall be repealed
and said paragraph (b) shall be read as it existed in law on the date
immediately the effective date of this act;
(c) subdivision 2-a of section 168-p of the correction law as added by
section 17 of this act shall expire and be deemed repealed on September
1, 2001; and
(d) provided further that any rules or regulations necessary for the
implementation of this act shall be promulgated on or before such effec-
tive date.

The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.

JOSEPH L. BRUNO SHELDON SILVER
Temporary President of the Senate Speaker of the Assembly

Page last updated August 6, 2003