LAWS OF NEW YORK, 2003
CHAPTER 264
Sexual Assault Reform


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


LAWS OF NEW YORK, 2003
CHAPTER 264

AN ACT to amend the penal law, the criminal procedure law, the agriculture and markets law, the correction law, the domestic relations law, the executive law, the family court act and the judiciary law, in relation to changing the name of the offense of "sodomy" to criminal sexual act, and to eliminate references to "deviate sexual intercourse" and replace such references with oral sexual conduct or anal sexual conduct; to amend the penal law, in relation to the period of probation for sexual assaults, sentencing for repeat offenses of sexual assault against a child, exempting married persons from application of non-forcible sex offenses, forcible touching and persistent sexual abuse; to amend the penal law and the public health law, in relation to gamma hydroxybutyric acid; to amend the criminal procedure law and the family court act, in relation to testimony by children; to amend the criminal procedure law, in relation to predicate convictions of
sexual assault upon a child, and bail and recognizance for persons charged with, convicted of and sentenced for sex offenses; to amend the public health law, in relation to rape crisis intervention and prevention; and to amend the executive law, in relation to establishing direct reimbursement by the crime victims board to hospitals, sexual assault examiner programs and licensed health care providers who provide health care forensic examinations to sexual assault survivors; and to repeal section 56 of chapter 1 of the laws of 2000 enacting the sexual reform act, relating to certain technical corrections

Became a law July 30, 2003, 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. Paragraph 2 of subdivision 18 of section 10.00 of the penal
law, as amended by chapter 435 of the laws of 1998, is amended to read
as follows:
(2) a person fourteen or fifteen years old who is criminally responsi-
ble for acts constituting the crimes defined in subdivisions one and two
of section 125.25 (murder in the second degree) and in subdivision three
of such section provided that the underlying crime for the murder charge
is one for which such person is criminally responsible; section 135.25
(kidnapping in the first degree); 150.20 (arson in the first degree);
subdivisions one and two of section 120.10 (assault in the first
degree); 125.20 (manslaughter in the first degree); subdivisions one and
two of section 130.35 (rape in the first degree); subdivisions one and
two of section 130.50 ([sodomy ] criminal sexual act in the first
degree); 130.70 (aggravated sexual abuse in the first degree); 140.30
(burglary in the first degree); subdivision one of section 140.25
(burglary in the second degree); 150.15 (arson in the second degree);
160.15 (robbery in the first degree); subdivision two of section 160.10
(robbery in the second degree) of this chapter; subdivision four of
section 265.02 of this chapter, where such firearm is possessed on
school grounds, as that phrase is defined in subdivision fourteen of
section 220.00 of this chapter; or section 265.03 of this chapter, where
such machine gun or such firearm is possessed on school grounds, as that
phrase is defined in subdivision fourteen of section 220.00 of this
chapter; or defined in this chapter as an attempt to commit murder in
the second degree or kidnapping in the first degree.
§ 2. Subdivision 2 of section 30.00 of the penal law, as amended by
chapter 435 of the laws of 1998, is amended to read as follows:
2. A person thirteen, fourteen or fifteen years of age is criminally
responsible for acts constituting murder in the second degree as defined
in subdivisions one and two of section 125.25 and in subdivision three
of such section provided that the underlying crime for the murder charge
is one for which such person is criminally responsible; and a person
fourteen or fifteen years of age is criminally responsible for acts
constituting the crimes defined in section 135.25 (kidnapping in the
first degree); 150.20 (arson in the first degree); subdivisions one and
two of section 120.10 (assault in the first degree); 125.20 (manslaught-
er in the first degree); subdivisions one and two of section 130.35
(rape in the first degree); subdivisions one and two of section 130.50
([sodomy ] criminal sexual act in the first degree); 130.70 (aggravated
sexual abuse in the first degree); 140.30 (burglary in the first
degree); subdivision one of section 140.25 (burglary in the second
degree); 150.15 (arson in the second degree); 160.15 (robbery in the
first degree); subdivision two of section 160.10 (robbery in the second
degree) of this chapter; subdivision four of section 265.02 of this
chapter, where such firearm is possessed on school grounds, as that
phrase is defined in subdivision fourteen of section 220.00 of this
chapter; or section 265.03 of this chapter, where such machine gun or
such firearm is possessed on school grounds, as that phrase is defined
in subdivision fourteen of section 220.00 of this chapter; or defined in
this chapter as an attempt to commit murder in the second degree or
kidnapping in the first degree.
§ 3. Paragraph (b) of subdivision 2 of section 35.15 of the penal law,
as added by chapter 73 of the laws of 1968, is amended to read as
follows:
(b) He reasonably believes that such other person is committing or
attempting to commit a kidnapping, forcible rape, forcible [sodomy ]
criminal sexual act or robbery; or
§ 4. Paragraph (b) of subdivision 4 of section 35.30 of the penal law,
as added by chapter 73 of the laws of 1968, is amended to read as
follows:
(b) Effect the arrest of a person who has committed murder,
manslaughter in the first degree, robbery, forcible rape or forcible
[sodomy ] criminal sexual act and who is in immediate flight therefrom.
§ 5. Subdivision 3 of section 65.00 of the penal law, as amended by
chapter 1 of the laws of 2000, 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.
For the 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.
4. In any case where a court pursuant to its authority under subdivi-
sion 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. ]
§ 6. Paragraph (a) of subdivision 1 of section 70.02 of the penal law,
as amended by chapter 300 of the laws of 2001, is amended to read as
follows:
(a) Class B violent felony offenses: an attempt to commit the class
A-I felonies of murder in the second degree as defined in section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson in the first degree as defined in section 150.20; manslaughter in
the first degree as defined in section 125.20, rape in the first degree
as defined in section 130.35, [sodomy ] 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, criminal possession of a dangerous weapon in the first
degree as defined in section 265.04, criminal use of a firearm in the
first degree as defined in section 265.09, criminal sale of a firearm in
the first degree as defined in section 265.13, aggravated assault upon a
police officer or a peace officer as defined in section 120.11, gang
assault in the first degree as defined in section 120.07, intimidating a
victim or witness in the first degree as defined in section 215.17, and
hindering prosecution of terrorism in the first degree as defined in
section 490.35.
§ 7. Subdivisions 1, 2 and 3 of section 70.07 of the penal law, as
added by chapter 1 of the laws of 2000, are amended to read as follows:
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 or five
of this section.
2. A "sexual assault against a child" means a felony offense, other
than persistent sexual abuse as defined in section 130.53 of this chap-
ter, (a) the essential elements of which include the commission or
attempted commission of sexual conduct, as defined in subdivision ten of
section 130.00 of this chapter, (b) committed or attempted to be commit-
ted 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 crimi-
nal 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 and whether such offender was eigh-
teen years of age or older at the time of the commission of the predi-
cate felony.
§ 8. Paragraph (b) of subdivision 4 of section 70.07 of the penal law,
as added by chapter 1 of the laws of 2000, is amended to read as
follows:
(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 shall
set forth on the record the reasons for such determination and, 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;
§ 9. Section 70.07 of the penal law is amended by adding a new subdi-
vision 5 to read as follows:
5. Notwithstanding subdivision four of this section, where the court
has found pursuant to subdivision three of this section that a person:
(a) 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; and (b) has been subjected to a predi-
cate felony conviction for sexual assault against a child as defined in
subdivision two of this section; and (c) who was under the age of eigh-
teen years at the time of the commission of such predicate felony
offense, then the court may, in lieu of the sentence authorized by
subdivision four of this section, sentence the defendant to a term of
imprisonment in accordance with the sentence authorized for the instant
felony offense pursuant to subdivision three of section 70.04 of this
article. The court shall set forth on the record the reasons for such
determination.
§ 10. The opening paragraph of subdivision 3 of section 125.25 of the
penal law, as amended by chapter 477 of the laws of 1990, is amended to
read as follows:
Acting either alone or with one or more other persons, he commits or
attempts to commit robbery, burglary, kidnapping, arson, rape in the
first degree, [sodomy ] criminal sexual act in the first degree, sexual
abuse in the first degree, aggravated sexual abuse, escape in the first
degree, or escape in the second degree, and, in the course of and in
furtherance of such crime or of immediate flight therefrom, he, or
another participant, if there be any, causes the death of a person other
than one of the participants; except that in any prosecution under this
subdivision, in which the defendant was not the only participant in the
underlying crime, it is an affirmative defense that the defendant:
§ 11. Subparagraph (vii) of paragraph (a) of subdivision 1 of section
125.27 of the penal law, as added by chapter 1 of the laws of 1995, is
amended to read as follows:
(vii) the victim was killed while the defendant was in the course of
committing or attempting to commit and in furtherance of robbery,
burglary in the first degree or second degree, kidnapping in the first
degree, arson in the first degree or second degree, rape in the first
degree, [sodomy ] criminal sexual act in the first degree, sexual abuse
in the first degree, aggravated sexual abuse in the first degree or
escape in the first degree, or in the course of and furtherance of imme-
diate flight after committing or attempting to commit any such crime or
in the course of and furtherance of immediate flight after attempting to
commit the crime of murder in the second degree; provided however, the
victim is not a participant in one of the aforementioned crimes and,
provided further that, unless the defendant's criminal liability under
this subparagraph is based upon the defendant having commanded another
person to cause the death of the victim or intended victim pursuant to
section 20.00 of this chapter, this subparagraph shall not apply where
the defendant's criminal liability is based upon the conduct of another
pursuant to section 20.00 of this chapter; or
§ 12. Subdivisions 2, 4 and 10 of section 130.00 of the penal law,
subdivision 4 as amended by chapter 735 of the laws of 1978 and subdivi-
sion 10 as added by chapter 122 of the laws of 1996, are amended to read
as follows:
2. ["Deviate sexual intercourse" means sexual conduct between persons
not married to each other consisting of contact between the penis and
the anus, the mouth and penis, or the mouth and the vulva. ] (a) "Oral
sexual conduct" means conduct between persons consisting of contact
between the mouth and the penis, the mouth and the anus, or the mouth
and the vulva or vagina.
(b) "Anal sexual conduct" means conduct between persons consisting of
contact between the penis and anus.
4. ["Female" means any female person who is not married to the actor. ]
For the purposes of this article "[not ] married" means[:
(a) the lack of an existing relationship of husband and wife between
the female and the actor which is recognized by law, or
(b) ] the existence of the relationship [of husband and wife ] between
the actor and the [female ] victim as spouses which is recognized by law
at the time the actor commits an offense proscribed by this article [by
means of forcible compulsion ] against the [female, and the female and
actor are living apart at such time pursuant to a valid and effective:
(i) order issued by a court of competent jurisdiction which by its
terms or in its effect requires such living apart, or
(ii) decree or judgment of separation, or
(iii) written agreement of separation subscribed by them and acknowl-
edged in the form required to entitle a deed to be recorded which
contains provisions specifically indicating that the actor may be guilty
of the commission of a crime for engaging in conduct which constitutes
an offense proscribed by this article against and without the consent of
the female ] victim.
10. "Sexual conduct" means sexual intercourse, [deviate sexual inter-
course ] oral sexual conduct, anal sexual conduct, aggravated sexual
contact, or sexual contact.
§ 13. Subdivision 1 and paragraphs (c) and (d) of subdivision 2 of
section 130.05 of the penal law, subdivision 1 as amended by chapter
1038 of the laws of 1965 and paragraph (c) of subdivision 2 as amended
and paragraph (d) of subdivision 2 as added by chapter 1 of the laws of
2000, are amended to read as follows:
1. Whether or not specifically stated, it is an element of every
offense defined in this article[, except the offense of consensual sodo-
my, ] that the sexual act was committed without consent of the victim.
(c) Where the offense charged is sexual abuse or forcible touching,
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 ] criminal sexual act
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 intercourse 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.
§ 14. Paragraph (h) of subdivision 3 of section 130.05 of the penal
law, as amended by chapter 1 of the laws of 2000, is amended to read as
follows:
(h) a client or patient and the actor is a health care provider or
mental health care provider charged with rape in the third degree as
defined in section 130.25, [sodomy ] criminal sexual act 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 examina-
tion.
§ 15. Subdivision 3 of section 130.10 of the penal law, as added by
chapter 1 of the laws of 2000, is amended and a new subdivision 4 is
added to read as follows:
3. In any prosecution for the crime of rape in the third degree as
defined in section 130.25, [sodomy ] criminal sexual act 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 circumstances set forth in paragraph (h) of subdivision
three of section 130.05 of this article it shall be an affirmative
defense that the client or patient consented to such conduct charged
after having been expressly advised by the health care or mental health
care provider that such conduct was not performed for a valid medical
purpose.
4. In any prosecution under this article in which the victim's lack of
consent is based solely on his or her incapacity to consent because he
or she was less than seventeen years old, mentally disabled, or a client
or patient and the actor is a health care provider, it shall be a
defense that the defendant was married to the victim as defined in
subdivision four of section 130.00 of this article.
§ 16. The opening paragraph and subdivision (a) of section 130.16 of
the penal law, as amended by chapter 89 of the laws of 1984, are amended
to read as follows:
A person shall not be convicted of [consensual sodomy, or an attempt
to commit the same, or of ] any offense defined in this article of which
lack of consent is an element but results solely from incapacity to
consent because of the victim's mental defect, or mental incapacity, or
an attempt to commit the same, solely on the testimony of the victim,
unsupported by other evidence tending to:
(a) Establish that an attempt was made to engage the victim in sexual
intercourse, [deviate sexual intercourse ] oral sexual conduct, anal
sexual conduct, or sexual contact, as the case may be, at the time of
the occurrence; and
§ 17. Subdivision 2 of section 130.20 of the penal law, as amended by
chapter 1 of the laws of 2000, is amended to read as follows:
2. He or she engages in [deviate sexual intercourse ] oral sexual
conduct or anal sexual conduct with another person without such person's
consent; or
§ 18. Section 130.40 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
§ 130.40 [Sodomy ] Criminal sexual act in the third degree.
A person is guilty of [sodomy ] criminal sexual act in the third degree
when:
1. He or she engages in [deviate sexual intercourse ] oral sexual
conduct or anal sexual conduct with a person who is incapable of consent
by reason of some factor other than being less than seventeen years old;
2. Being twenty-one years old or more, he or she engages in [deviate
sexual intercourse ] oral sexual conduct or anal sexual conduct with a
person less than seventeen years old; or
3. He or she engages in [deviate sexual intercourse ] oral sexual
conduct or anal sexual conduct with another person without such person's
consent where such lack of consent is by reason of some factor other
than incapacity to consent.
[Sodomy ] Criminal sexual act in the third degree is a class E felony.
§ 19. Section 130.45 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
§ 130.45 [Sodomy ] Criminal sexual act in the second degree.
A person is guilty of [sodomy ] criminal sexual act in the second
degree when:
1. being eighteen years old or more, he or she engages in [deviate
sexual intercourse ] oral sexual conduct or anal sexual conduct with
another person less than fifteen years old; or
2. he or she engages in [deviate sexual intercourse ] oral sexual
conduct or anal sexual conduct with another person who is incapable of
consent by reason of being mentally disabled or mentally incapacitated.
It shall be an affirmative defense to the crime of [sodomy ] criminal
sexual act 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 ] Criminal sexual act in the second degree is a class D felony.
§ 20. Section 130.50 of the penal law, as amended by chapter 1 of the
laws of 2000, is amended to read as follows:
§ 130.50 [Sodomy ] Criminal sexual act in the first degree.
A person is guilty of [sodomy ] criminal sexual act in the first degree
when he or she engages in [deviate sexual intercourse ] oral sexual
conduct or anal sexual conduct with another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically helpless;
or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years
old or more.
[Sodomy ] Criminal sexual act in the first degree is a class B felony.
§ 21. Section 130.52 of the penal law, as added by chapter 1 of the
laws of 2000, is amended 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 degrad-
ing 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.
§ 22. Section 130.53 of the penal law, as added by chapter 1 of the
laws of 2000, is amended to read as follows:
§ 130.53 Persistent sexual abuse.
A person is guilty of persistent sexual abuse when he or she [stands
convicted ] commits the crime of forcible touching, as defined in section
130.52 of this article, 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
transactions for which sentence was imposed on separate occasions, of
forcible touching, as defined in section 130.52 of this article, 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, or any offense defined in this article, of which the
commission or attempted commission thereof is a felony.
Persistent sexual abuse is a class E felony.
§ 23. Paragraphs (a) and (b) of subdivision 1 of section 130.75 of the
penal law, paragraph (a) as amended and paragraph (b) as added by chap-
ter 1 of the laws of 2000, are amended to read as follows:
(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 ] oral sexual conduct, anal sexual conduct 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 ] include at least one act
of sexual intercourse, [deviate sexual intercourse ] oral sexual conduct,
anal sexual conduct or aggravated sexual contact, with a child less than
thirteen years old.
§ 24. Subdivisions 1 and 2 of section 130.90 of the penal law, as
added by chapter 1 of the laws of 2000, are amended to read as follows:
1. knowingly and unlawfully possesses a controlled substance or any
preparation, compound, mixture or substance that requires a prescription
to obtain and administers such substance or preparation, compound,
mixture or substance that requires a prescription to obtain to another
person without such person's consent and with intent to commit against
such person conduct constituting a felony defined in this article; and
2. commits or attempts to commit such conduct constituting a felony
defined in this article.
§ 25. Subdivision 7 of section 220.06 of the penal law, as added by
chapter 635 of the laws of 1997, is amended and a new subdivision 8 is
added to read as follows:
7. ketamine and has previously been convicted of possession or the
attempt to commit possession of ketamine in any amount[. ]; or
8. one or more preparations, compounds, mixtures or substances
containing gamma hydroxybutyric acid, as defined in paragraph four of
subdivision (e) of schedule I of section thirty-three hundred six of the
public health law, and said preparations, compounds, mixtures or
substances are of an aggregate weight of twenty-eight grams or more.
§ 26. Subdivision 14 of section 220.09 of the penal law, as added by
chapter 635 of the laws of 1997, is amended and a new subdivision 15 is
added to read as follows:
14. ketamine and said ketamine weighs four thousand milligrams or
more[. ]; or
15. one or more preparations, compounds, mixtures or substances
containing gamma hydroxybutyric acid, as defined in paragraph four of
subdivision (e) of schedule I of section thirty-three hundred six of the
public health law, and said preparations, compounds, mixtures or
substances are of an aggregate weight of two hundred grams or more.
§ 27. Subdivision 8 of section 220.34 of the penal law, as added by
chapter 289 of the laws of 1998, is amended and a new subdivision 9 is
added to read as follows:
8. a controlled substance in violation of section 220.31 of this arti-
cle, when such sale takes place upon the grounds of a child day care or
educational facility under circumstances evincing knowledge by the
defendant that such sale is taking place upon such grounds. As used in
this subdivision, the phrase "the grounds of a child day care or educa-
tional facility" shall have the same meaning as provided for in subdivi-
sion five of section 220.44 of this article. For the purposes of this
subdivision, a rebuttable presumption shall be established that a person
has knowledge that they are within the grounds of a child day care or
educational facility when notice is conspicuously posted of the presence
or proximity of such facility[. ]; or
9. one or more preparations, compounds, mixtures or substances
containing gamma hydroxybutyric acid, as defined in paragraph four of
subdivision (e) of schedule I of section thirty-three hundred six of the
public health law, and said preparations, compounds, mixtures or
substances are of an aggregate weight of twenty-eight grams or more.
§ 28. Subdivisions 1 and 7 of section 235.00 of the penal law, subdi-
vision 1 as amended and subdivision 7 as added by chapter 989 of the
laws of 1974, are amended to read as follows:
1. "Obscene." Any material or performance is "obscene" if (a) the
average person, applying contemporary community standards, would find
that considered as a whole, its predominant appeal is to the prurient
interest in sex, and (b) it depicts or describes in a patently offensive
manner, actual or simulated: sexual intercourse, [sodomy ] criminal
sexual act, sexual bestiality, masturbation, sadism, masochism, excre-
tion or lewd exhibition of the genitals, and (c) considered as a whole,
it lacks serious literary, artistic, political, and scientific value.
Predominant appeal shall be judged with reference to ordinary adults
unless it appears from the character of the material or the circum-
stances of its dissemination to be designed for children or other
specially susceptible audience.
7. "[Sodomy ] Criminal sexual act" means any of the types of sexual
conduct defined in subdivision two of section 130.00 provided, however,
that in any prosecution under this article the marital status of the
persons engaged in such conduct shall be irrelevant and shall not be
considered.
§ 29. Subdivision 2 of section 235.22 of the penal law, as added by
chapter 600 of the laws of 1996, is amended to read as follows:
2. by means of such communication he importunes, invites or induces a
minor to engage in sexual intercourse, [deviate sexual intercourse ] oral
sexual conduct or anal sexual conduct, or sexual contact with him, or to
engage in a sexual performance, obscene sexual performance, or sexual
conduct for his benefit.
§ 30. Subdivision 3 of section 240.35 of the penal law is amended to
read as follows:
3. Loiters or remains in a public place for the purpose of engaging,
or soliciting another person to engage, in [deviate sexual intercourse ]
oral sexual conduct, anal sexual conduct or other sexual behavior of a
deviate nature; or
§ 31. The first undesignated paragraph of section 255.25 of the penal
law, as amended by chapter 649 of the laws of 1984, is amended to read
as follows:
A person is guilty of incest when he or she marries or engages in
sexual intercourse [or deviate sexual intercourse ], oral sexual conduct
or anal sexual conduct with a person whom he or she knows to be related
to him or her, either legitimately or out of wedlock, as an ancestor,
descendant, brother or sister of either the whole or the half blood,
uncle, aunt, nephew or niece.
§ 32. Subdivisions 3 and 7 of section 263.00 of the penal law, as
added by chapter 910 of the laws of 1977, are amended to read as
follows:
3. "Sexual conduct" means actual or simulated sexual intercourse,
[deviate sexual intercourse ] oral sexual conduct, anal sexual conduct,
sexual [beastiality ] bestiality, masturbation, sado-masochistic abuse,
or lewd exhibition of the genitals.
7. "[Deviate sexual intercourse" means ] Oral sexual conduct" and "anal
sexual conduct" mean the conduct defined by subdivision two of section
130.00 of this chapter.
§ 33. Paragraph (a) of subdivision 17 of section 265.00 of the penal
law, as added by chapter 1041 of the laws of 1974, is amended to read as
follows:
(a) any of the following offenses defined in the former penal law as
in force and effect immediately prior to September first, nineteen
hundred sixty-seven: illegally using, carrying or possessing a pistol or
other dangerous weapon; making or possessing burglar's instruments;
buying or receiving stolen property; unlawful entry of a building;
aiding escape from prison; that kind of disorderly conduct defined in
subdivisions six and eight of section seven hundred twenty-two of such
former penal law; violations of sections four hundred eighty-three, four
hundred eighty-three-b, four hundred eighty-four-h and article one
hundred six of such former penal law; that kind of [sodomy ] criminal
sexual act or rape which was designated as a misdemeanor; violation of
section seventeen hundred forty-seven-d and seventeen hundred forty-sev-
en-e of such former penal law; any violation of any provision of article
thirty-three of the public health law relating to narcotic drugs which
was defined as a misdemeanor by section seventeen hundred fifty-one-a of
such former penal law, and any violation of any provision of article
thirty-three-A of the public health law relating to depressant and stim-
ulant drugs which was defined as a misdemeanor by section seventeen
hundred forty-seven-b of such former penal law.
§ 34. Subdivision 3 of section 485.05 of the penal law, as added by
chapter 107 of the laws of 2000, is amended to read as follows:
3. A "specified offense" is an offense defined by any of the following
provisions of this chapter: section 120.00 (assault in the third
degree); section 120.05 (assault in the second degree); section 120.10
(assault in the first degree); section 120.12 (aggravated assault upon a
person less than eleven years old); section 120.13 (menacing in the
first degree); section 120.14 (menacing in the second degree); section
120.15 (menacing in the third degree); section 120.20 (reckless endan-
germent in the second degree); section 120.25 (reckless endangerment in
the first degree); subdivision one of section 125.15 (manslaughter in
the second degree); subdivision one, two or four of section 125.20
(manslaughter in the first degree); section 125.25 (murder in the second
degree); section 120.45 (stalking in the fourth degree); section 120.50
(stalking in the third degree); section 120.55 (stalking in the second
degree); section 120.60 (stalking in the first degree); subdivision one
of section 130.35 (rape in the first degree); subdivision one of section
130.50 ([sodomy ] criminal sexual act in the first degree); subdivision
one of section 130.65 (sexual abuse in the first degree); paragraph (a)
of subdivision one of section 130.67 (aggravated sexual abuse in the
second degree); paragraph (a) of subdivision one of section 130.70
(aggravated sexual abuse in the first degree); section 135.05 (unlawful
imprisonment in the second degree); section 135.10 (unlawful imprison-
ment in the first degree); section 135.20 (kidnapping in the second
degree); section 135.25 (kidnapping in the first degree); section 135.60
(coercion in the second degree); section 135.65 (coercion in the first
degree); section 140.10 (criminal trespass in the third degree); section
140.15 (criminal trespass in the second degree); section 140.17 (crimi-
nal trespass in the first degree); section 140.20 (burglary in the third
degree); section 140.25 (burglary in the second degree); section 140.30
(burglary in the first degree); section 145.00 (criminal mischief in the
fourth degree); section 145.05 (criminal mischief in the third degree);
section 145.10 (criminal mischief in the second degree); section 145.12
(criminal mischief in the first degree); section 150.05 (arson in the
fourth degree); section 150.10 (arson in the third degree); section
150.15 (arson in the second degree); section 150.20 (arson in the first
degree); section 155.25 (petit larceny); section 155.30 (grand larceny
in the fourth degree); section 155.35 (grand larceny in the third
degree); section 155.40 (grand larceny in the second degree); section
155.42 (grand larceny in the first degree); section 160.05 (robbery in
the third degree); section 160.10 (robbery in the second degree);
section 160.15 (robbery in the first degree); section 240.25 (harassment
in the first degree); subdivision one, two or four of section 240.30
(aggravated harassment in the second degree); or any attempt or conspir-
acy to commit any of the foregoing offenses.
§ 35. Subdivision 42 of section 1.20 of the criminal procedure law, as
amended by chapter 435 of the laws of 1998, is amended to read as
follows:
42. "Juvenile offender" means (1) a person, thirteen years old who is
criminally responsible for acts constituting murder in the second degree
as defined in subdivisions one and two of section 125.25 of the penal
law and (2) a person fourteen or fifteen years old who is criminally
responsible for acts constituting the crimes defined in subdivisions one
and two of section 125.25 (murder in the second degree) and in subdivi-
sion three of such section provided that the underlying crime for the
murder charge is one for which such person is criminally responsible;
section 135.25 (kidnapping in the first degree); 150.20 (arson in the
first degree); subdivisions one and two of section 120.10 (assault in
the first degree); 125.20 (manslaughter in the first degree); subdivi-
sions one and two of section 130.35 (rape in the first degree); subdivi-
sions one and two of section 130.50 ([sodomy ] criminal sexual act in the
first degree); 130.70 (aggravated sexual abuse in the first degree);
140.30 (burglary in the first degree); subdivision one of section 140.25
(burglary in the second degree); 150.15 (arson in the second degree);
160.15 (robbery in the first degree); subdivision two of section 160.10
(robbery in the second degree) of the penal law; subdivision four of
section 265.02 of the penal law, where such firearm is possessed on
school grounds, as that phrase is defined in subdivision fourteen of
section 220.00 of the penal law; or section 265.03 of the penal law,
where such machine gun or such firearm is possessed on school grounds,
as that phrase is defined in subdivision fourteen of section 220.00 of
the penal law; or defined in the penal law as an attempt to commit
murder in the second degree or kidnapping in the first degree.
§ 36. Subdivision 2 of section 60.20 of the criminal procedure law, as
amended by chapter 1 of the laws of 2000, is amended to read as follows:
2. Every witness more than 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 witness
less than 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 ] under either of the above
provisions, a witness is deemed to be ineligible to testify under oath,
the witness may nevertheless be permitted to give unsworn evidence if
the court is satisfied that the witness possesses sufficient intelli-
gence and capacity to justify the reception thereof. A witness under-
stands the nature of an oath if he or she appreciates the difference
between truth and falsehood, the necessity for telling the truth, and
the fact that a witness who testifies falsely may be punished.
§ 37. Subdivision 3 of section 60.42 of the criminal procedure law, as
added by chapter 230 of the laws of 1975, is amended to read as follows:
3. rebuts evidence introduced by the people of the victim's failure
to engage in sexual intercourse, [deviate sexual intercourse ] oral sexu-
al conduct, anal sexual conduct or sexual contact during a given period
of time; or
§ 38. Subdivision 4 of section 180.75 of the criminal procedure law,
as added by chapter 411 of the laws of 1979, is amended to read as
follows:
4. Notwithstanding the provisions of [subdivision ] subdivisions two
and three of this section, a local criminal court shall, at the request
of the district attorney, order removal of an action against a juvenile
offender to the family court pursuant to the provisions of article seven
hundred twenty-five of this chapter if, upon consideration of the crite-
ria specified in subdivision two of section 210.43 of this chapter, it
is determined that to do so would be in the interests of justice.
Where, however, the felony complaint charges the juvenile offender with
murder in the second degree as defined in section 125.25 of the penal
law, rape in the first degree as defined in subdivision one of section
130.35 of the penal law, [sodomy ] criminal sexual act in the first
degree as defined in subdivision one of section 130.50 of the penal law,
or an armed felony as defined in paragraph (a) of subdivision forty-one
of section 1.20 of this chapter, a determination that such action be
removed to the family court shall, in addition, be based upon a finding
of one or more of the following factors: (i) mitigating circumstances
that bear directly upon the manner in which the crime was committed; or
(ii) where the defendant was not the sole participant in the crime, the
defendant's participation was relatively minor although not so minor as
to constitute a defense to the prosecution; or (iii) possible deficien-
cies in proof of the crime.
§ 39. Subdivision (a) of section 190.71 of the criminal procedure law,
as amended by chapter 435 of the laws of 1998, is amended to read as
follows:
(a) Except as provided in subdivision six of section 200.20 of this
chapter, a grand jury may not indict (i) a person thirteen years of age
for any conduct or crime other than conduct constituting a crime defined
in subdivisions one and two of section 125.25 (murder in the second
degree); (ii) a person fourteen or fifteen years of age for any conduct
or crime other than conduct constituting a crime defined in subdivisions
one and two of section 125.25 (murder in the second degree) and in
subdivision three of such section provided that the underlying crime for
the murder charge is one for which such person is criminally responsi-
ble; 135.25 (kidnapping in the first degree); 150.20 (arson in the first
degree); subdivisions one and two of section 120.10 (assault in the
first degree); 125.20 (manslaughter in the first degree); subdivisions
one and two of section 130.35 (rape in the first degree); subdivisions
one and two of section 130.50 ([sodomy ] criminal sexual act in the first
degree); 130.70 (aggravated sexual abuse in the first degree); 140.30
(burglary in the first degree); subdivision one of section 140.25
(burglary in the second degree); 150.15 (arson in the second degree);
160.15 (robbery in the first degree); subdivision two of section 160.10
(robbery in the second degree) of the penal law; subdivision four of
section 265.02 of the penal law, where such firearm is possessed on
school grounds, as that phrase is defined in subdivision fourteen of
section 220.00 of the penal law; or section 265.03 of the penal law,
where such machine gun or such firearm is possessed on school grounds,
as that phrase is defined in subdivision fourteen of section 220.00 of
the penal law; or defined in the penal law as an attempt to commit
murder in the second degree or kidnapping in the first degree.
§ 40. The opening paragraph of subdivision 2 of section 200.62 of the
criminal procedure law, as added by chapter 1 of the laws of 2000, is
amended and a new paragraph (c) is added to read as follows:
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 or her that
he or she may admit such allegation, deny it or remain mute. Depending
upon the defendant's response, the trial of the indictment must proceed
as follows:
(c) Nothing in this subdivision shall prevent the people, in a trial
before the court or a jury, from making reference to and introducing
evidence of the victim's age.
§ 41. Paragraph (b) of subdivision 1 of section 210.43 of the criminal
procedure law, as added by chapter 411 of the laws of 1979, is amended
to read as follows:
(b) with the consent of the district attorney, order removal of an
action involving an indictment charging a juvenile offender with murder
in the second degree as defined in section 125.25 of the penal law; rape
in the first degree, as defined in subdivision one of section 130.35 of
the penal law; [sodomy ] criminal sexual act in the first degree, as
defined in subdivision one of section 130.50 of the penal law; or an
armed felony as defined in paragraph (a) of subdivision forty-one of
section 1.20, to the family court pursuant to the provisions of article
seven hundred twenty-five of this chapter if the court finds one or more
of the following factors: (i) mitigating circumstances that bear direct-
ly upon the manner in which the crime was committed; (ii) where the
defendant was not the sole participant in the crime, the defendant's
participation was relatively minor although not so minor as to consti-
tute a defense to the prosecution; or (iii) possible deficiencies in the
proof of the crime, and, after consideration of the factors set forth in
subdivision two of this section, the court determined that removal of
the action to the family court would be in the interests of justice.
§ 42. Subparagraph (iii) of paragraph (g) of subdivision 5 of section
220.10 of the criminal procedure law, as amended by chapter 920 of the
laws of 1982, is amended to read as follows:
(iii) Where the indictment does not charge a crime specified in
subparagraph (i) of this paragraph, the district attorney may recommend
removal of the action to the family court. Upon making such recommenda-
tion the district attorney shall submit a subscribed memorandum setting
forth: (1) a recommendation that the interests of justice would best be
served by removal of the action to the family court; and (2) if the
indictment charges a thirteen year old with the crime of murder in the
second degree, or a fourteen or fifteen year old with the crimes of rape
in the first degree as defined in subdivision one of section 130.35 of
the penal law, or [sodomy ] criminal sexual act in the first degree as
defined in subdivision one of section 130.50 of the penal law, or an
armed felony as defined in paragraph (a) of subdivision forty-one of
section 1.20 of this chapter specific factors, one or more of which
reasonably supports the recommendation, showing, (i) mitigating circum-
stances that bear directly upon the manner in which the crime was
committed, or (ii) where the defendant was not the sole participant in
the crime, that the defendant's participation was relatively minor
although not so minor as to constitute a defense to the prosecution, or
(iii) possible deficiencies in proof of the crime, or (iv) where the
juvenile offender has no previous adjudications of having committed a
designated felony act, as defined in subdivision eight of section 301.2
of the family court act, regardless of the age of the offender at the
time of commission of the act, that the criminal act was not part of a
pattern of criminal behavior and, in view of the history of the offen-
der, is not likely to be repeated.
§ 43. Subdivision 6 of section 300.50 of the criminal procedure law,
as added by chapter 1 of the laws of 2000, is amended to read as
follows:
6. For purposes of this section, the offenses of rape in the third
degree as defined in subdivision three of section 130.25 of the penal
law and [sodomy ] criminal sexual act 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 ] criminal sexual
act in the first degree or any other offense. Notwithstanding the fore-
going, 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.
§ 44. Subdivision 1 of section 390.15 of the criminal procedure law,
as added by chapter 76 of the laws of 1995, is amended to read as
follows:
1. (a) In any case where the defendant is convicted of a felony
offense enumerated in any section of article one hundred thirty of the
penal law, or any subdivision of section 130.20 of such law, where an
act of "sexual intercourse" [or ], "[deviate sexual intercourse ] oral
sexual conduct" or "anal sexual conduct," as those terms are defined in
section 130.00 of the penal law, is required as an essential element for
the commission thereof, the court must, upon a request of the victim,
order that the defendant submit to human immunodeficiency (HIV) related
testing. The testing is to be conducted by a state, county, or local
public health officer designated by the order. Test results, which shall
not be disclosed to the court, shall be communicated to the defendant
and the victim named in the order in accordance with the provisions of
section twenty-seven hundred eighty-five-a of the public health law, but
such results and disclosure need not be completed prior to the imposi-
tion of sentence.
(b) For the purposes of this section, the terms "defendant",
"conviction" and "sentence" mean and include, respectively, an "eligible
youth," a "youthful offender finding" and a "youthful offender sentence"
as those terms are defined in section 720.10 of this chapter. The term
"victim" means the person with whom the defendant engaged in an act of
[sexual intercourse or deviate sexual intercourse ] "sexual intercourse",
"oral sexual conduct" or "anal sexual conduct", as those terms are
defined in section 130.00 of the penal law, where such conduct with such
victim was the basis for the defendant's conviction of an offense speci-
fied in paragraph (a) of this subdivision.
§ 45. Subdivisions 2, 4 and 6 of section 400.19 of the criminal proce-
dure law, as added by chapter 1 of the laws of 2000, are amended to read
as follows:
2. Statement to be filed. When information available to the people
prior to the trial of a felony offense for a sexual assault [upon ]
against a child indicates that the defendant may have previously been
subjected to a predicate felony conviction for [such ] a sexual assault
against a child, 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 ] against a child
and a statement whether the defendant was eighteen years of age or older
at the time of the commission of the predicate felony. Where the
provisions of subparagraph (v) of paragraph (b) of subdivision one of
section 70.06 of the penal law apply, such statement also shall set
forth the date of commencement and the date of termination as well as
the place of imprisonment for each period of incarceration to be used
for tolling of the ten year limitation set forth in subparagraph (iv) of
paragraph (b) of such subdivision.
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 and that the defendant was 18 years of
age or older at the time of the commission of the predicate felony, 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.
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 ] against a child
as defined in subdivision two of section 70.07 of the penal law and that
the defendant was 18 years of age or older at the time of the commission
of the predicate felony 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 ] against a child as defined in
subdivision two of section 70.07 of the penal law and whether the
defendant was 18 years of age or older at the time of the commission of
the predicate felony.
§ 46. Subdivision 3 of section 530.40 of the criminal procedure law,
as amended by chapter 1 of the laws of 2000, 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 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 by a person eighteen years of age or older
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.
§ 47. Subdivision 1 of section 530.45 of the criminal procedure law,
as amended by chapter 1 of the laws of 2000, 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 ] a
class B or class C felony offense 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 by a person eighteen years of age
or older 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.
§ 48. Section 530.50 of the criminal procedure law, as amended by
chapter 1 of the laws of 2000, 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, ] any class B or class C felony offense defined in
article one hundred thirty of the penal law [and ] committed or attempted
to be committed by a person eighteen years of age or older against a
person less than eighteen years of age.
§ 49. Paragraph (b) of subdivision 8 of section 700.05 of the criminal
procedure law, as amended by chapter 2 of the laws of 1998, is amended
to read as follows:
(b) Any of the following felonies: assault in the second degree as
defined in section 120.05 of the penal law, assault in the first degree
as defined in section 120.10 of the penal law, reckless endangerment in
the first degree as defined in section 120.25 of the penal law, promot-
ing a suicide attempt as defined in section 120.30 of the penal law,
criminally negligent homicide as defined in section 125.10 of the penal
law, manslaughter in the second degree as defined in section 125.15 of
the penal law, manslaughter in the first degree as defined in section
125.20 of the penal law, murder in the second degree as defined in
section 125.25 of the penal law, murder in the first degree as defined
in section 125.27 of the penal law, abortion in the second degree as
defined in section 125.40 of the penal law, abortion in the first degree
as defined in section 125.45 of the penal law, rape in the third degree
as defined in section 130.25 of the penal law, rape in the second degree
as defined in section 130.30 of the penal law, rape in the first degree
as defined in section 130.35 of the penal law, [sodomy ] criminal sexual
act in the third degree as defined in section 130.40 of the penal law,
[sodomy ] criminal sexual act in the second degree as defined in section
130.45 of the penal law, [sodomy ] criminal sexual act in the first
degree as defined in section 130.50 of the penal law, sexual abuse in
the first degree as defined in section 130.65 of the penal law, unlawful
imprisonment in the first degree as defined in section 135.10 of the
penal law, kidnapping in the second degree as defined in section 135.20
of the penal law, kidnapping in the first degree as defined in section
135.25 of the penal law, custodial interference in the first degree as
defined in section 135.50 of the penal law, coercion in the first degree
as defined in section 135.65 of the penal law, criminal trespass in the
first degree as defined in section 140.17 of the penal law, burglary in
the third degree as defined in section 140.20 of the penal law, burglary
in the second degree as defined in section 140.25 of the penal law,
burglary in the first degree as defined in section 140.30 of the penal
law, criminal mischief in the third degree as defined in section 145.05
of the penal law, criminal mischief in the second degree as defined in
section 145.10 of the penal law, criminal mischief in the first degree
as defined in section 145.12 of the penal law, criminal tampering in the
first degree as defined in section 145.20 of the penal law, arson in the
fourth degree as defined in section 150.05 of the penal law, arson in
the third degree as defined in section 150.10 of the penal law, arson in
the second degree as defined in section 150.15 of the penal law, arson
in the first degree as defined in section 150.20 of the penal law, grand
larceny in the fourth degree as defined in section 155.30 of the penal
law, grand larceny in the third degree as defined in section 155.35 of
the penal law, grand larceny in the second degree as defined in section
155.40 of the penal law, grand larceny in the first degree as defined in
section 155.42 of the penal law, robbery in the third degree as defined
in section 160.05 of the penal law, robbery in the second degree as
defined in section 160.10 of the penal law, robbery in the first degree
as defined in section 160.15 of the penal law, unlawful use of secret
scientific material as defined in section 165.07 of the penal law, crim-
inal possession of stolen property in the fourth degree as defined in
section 165.45 of the penal law, criminal possession of stolen property
in the third degree as defined in section 165.50 of the penal law, crim-
inal possession of stolen property in the second degree as defined by
section 165.52 of the penal law, criminal possession of stolen property
in the first degree as defined by section 165.54 of the penal law,
trademark counterfeiting in the first degree as defined in section
165.73 of the penal law, forgery in the second degree as defined in
section 170.10 of the penal law, forgery in the first degree as defined
in section 170.15 of the penal law, criminal possession of a forged
instrument in the second degree as defined in section 170.25 of the
penal law, criminal possession of a forged instrument in the first
degree as defined in section 170.30 of the penal law, criminal
possession of forgery devices as defined in section 170.40 of the penal
law, falsifying business records in the first degree as defined in
section 175.10 of the penal law, tampering with public records in the
first degree as defined in section 175.25 of the penal law, offering a
false instrument for filing in the first degree as defined in section
175.35 of the penal law, issuing a false certificate as defined in
section 175.40 of the penal law, criminal diversion of prescription
medications and prescriptions in the second degree as defined in section
178.20 of the penal law, criminal diversion of prescription medications
and prescriptions in the first degree as defined in section 178.25 of
the penal law, escape in the second degree as defined in section 205.10
of the penal law, escape in the first degree as defined in section
205.15 of the penal law, absconding from temporary release in the first
degree as defined in section 205.17 of the penal law, promoting prison
contraband in the first degree as defined in section 205.25 of the penal
law, hindering prosecution in the second degree as defined in section
205.60 of the penal law, hindering prosecution in the first degree as
defined in section 205.65 of the penal law, criminal possession of a
weapon in the third degree as defined in subdivisions two, three, four
and five of section 265.02 of the penal law, criminal possession of a
weapon in the second degree as defined in section 265.03 of the penal
law, criminal possession of a dangerous weapon in the first degree as
defined in section 265.04 of the penal law, manufacture, transport,
disposition and defacement of weapons and dangerous instruments and
appliances defined as felonies in subdivisions one, two, and three of
section 265.10 of the penal law, sections 265.11, 265.12 and 265.13 of
the penal law, or prohibited use of weapons as defined in subdivision
two of section 265.35 of the penal law, relating to firearms and other
dangerous weapons;
§ 50. Subdivision 3 of section 720.10 of the criminal procedure law,
as amended by chapter 416 of the laws of 1986, is amended to read as
follows:
3. Notwithstanding the provisions of subdivision two, a youth who has
been convicted of an armed felony offense or of rape in the first
degree, [sodomy ] criminal sexual act in the first degree, or aggravated
sexual abuse is an eligible youth if the court determines that one or
more of the following factors exist: (i) mitigating circumstances that
bear directly upon the manner in which the crime was committed; or (ii)
where the defendant was not the sole participant in the crime, the
defendant's participation was relatively minor although not so minor as
to constitute a defense to the prosecution. Where the court determines
that the eligible youth is a youthful offender, the court shall make a
statement on the record of the reasons for its determination, a tran-
script of which shall be forwarded to the state division of criminal
justice services, to be kept in accordance with the provisions of subdi-
vision three of section eight hundred thirty-seven-a of the executive
law.
§ 51. Subdivision 11 of section 121 of the agriculture and markets
law, as added by chapter 530 of the laws of 1997, is amended to read as
follows:
11. The owner shall not be liable pursuant to subdivision seven,
eight, nine or ten of this section if the dog was coming to the aid or
defense of a person during the commission or attempted commission of a
murder, robbery, burglary, arson, rape in the first degree as defined in
subdivision one or two of section 130.35 of the penal law, [sodomy ]
criminal sexual act in the first degree as defined in subdivision one or
two of section 130.50 of the penal law or kidnapping within the dwelling
or upon the real property of the owner of the dog and the dog injured or
killed the person committing such criminal activity.
§ 52. Subdivision 1 of section 865 of the correction law, as amended
by section 1 of part B of chapter 412 of the laws of 1999, is amended to
read as follows:
1. "Eligible inmate" means a person sentenced to an indeterminate term
of imprisonment who has not reached the age of forty years, who will
become eligible for release on parole within three years, who has not
previously been convicted of a felony upon which an indeterminate term
of imprisonment was imposed and who was between the ages of sixteen and
forty at the time of commission of the crime upon which his or her pres-
ent sentence was based. Notwithstanding the foregoing, no person who is
convicted of any of the following crimes shall be deemed eligible to
participate in this program: (a) a violent felony offense as defined in
article seventy of the penal law, (b) an A-I felony offense, (c)
manslaughter in the second degree, vehicular manslaughter in the second
degree, vehicular manslaughter in the first degree, and criminally
negligent homicide as defined in article one hundred twenty-five of the
penal law, (d) rape in the second degree, rape in the third degree,
[sodomy ] criminal sexual act in the second degree, [sodomy ] criminal
sexual act in the third degree, attempted sexual abuse in the first
degree, attempted rape in the second degree and attempted [sodomy ] crim-
inal sexual act in the second degree as defined in articles one hundred
ten and one hundred thirty of the penal law and (e) any escape or
absconding offense as defined in article two hundred five of the penal
law.
§ 53. Subdivision 4 of section 170 of the domestic relations law, as
amended by chapter 700 of the laws of 1968, is amended to read as
follows:
(4) The commission of an act of adultery, provided that adultery for
the purposes of articles ten, eleven, and eleven-A of this chapter, is
hereby defined as the commission of an act of sexual [or deviate sexual ]
intercourse, oral sexual conduct or anal sexual conduct, voluntarily
performed by the defendant, with a person other than the plaintiff after
the marriage of plaintiff and defendant. [Deviate sexual intercourse
includes ] Oral sexual conduct and anal sexual conduct include, but are
not limited to, sexual conduct as defined in subdivision two of
[Section ] section 130.00 and subdivision three of [Section ] section
130.20 of the penal law.
§ 54. Subdivision 4 of section 200 of the domestic relations law, as
amended by chapter 702 of the laws of 1968, is amended to read as
follows:
4. The commission of an act of adultery by the defendant; except where
such offense is committed by the procurement or with the connivance of
the plaintiff or where there is voluntary cohabitation of the parties
with the knowledge of the offense or where action was not commenced
within five years after the discovery by the plaintiff of the offense
charged or where the plaintiff has also been guilty of adultery under
such circumstances that the defendant would have been entitled, if inno-
cent, to a divorce, provided that adultery for the purposes of this
subdivision is hereby defined as the commission of an act of sexual [or
deviate sexual ] intercourse, oral sexual conduct or anal sexual conduct,
voluntarily performed by the defendant, with a person other than the
plaintiff after the marriage of plaintiff and defendant. [Deviate sexual
intercourse includes ] Oral sexual conduct and anal sexual conduct
include, but are not limited to, sexual conduct as defined in subdivi-
sion two of [Section ] section 130.00 and subdivision three of [Section ]
section 130.20 of the penal law.
§ 55. Subdivision 9 of section 695-a of the public health law, as
added by chapter 1 of the laws of 2000, is amended to read as follows:
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 ] attorneys'
offices, courts and other agencies.
§ 56. Paragraph 4 of subdivision (e) of schedule I of section 3306 of
the public health law, as added by chapter 1 of the laws of 2000, is
amended 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 ethers and salts is possible with-
in the specific chemical.
§ 57. Paragraph 12 of subdivision (c) of schedule III of section 3306
of the public health law, as added by chapter 1 of the laws of 2000, is
amended to read as follows:
(12) 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, contained in a drug product for which an
application has been approved under section 505 of the federal food,
drug and cosmetic act.
§ 58. Clause (ii) of the opening paragraph of subdivision (b) of
section 117 of the family court act, as amended by chapter 435 of the
laws of 1998, is amended to read as follows:
(ii) defined in sections 120.10 (assault in the first degree); 125.20
(manslaughter in the first degree); 130.35 (rape in the first degree);
130.50 ([sodomy ] criminal sexual act in the first degree); 135.20
(kidnapping in the second degree), but only where the abduction involved
the use or threat of use of deadly physical force; 150.15 (arson in the
second degree); or 160.15 (robbery in the first degree) of the penal law
committed by a person thirteen, fourteen or fifteen years of age;
§ 59. Paragraph (ii) of subdivision 8 of section 301.2 of the family
court act, as amended by chapter 435 of the laws of 1998, is amended to
read as follows:
(ii) defined in sections 120.10 (assault in the first degree); 125.20
(manslaughter in the first degree); 130.35 (rape in the first degree);
130.50 ([sodomy ] criminal sexual act in the first degree); 130.70
(aggravated sexual abuse in the first degree); 135.20 (kidnapping in the
second degree) but only where the abduction involved the use or threat
of use of deadly physical force; 150.15 (arson in the second degree) or
160.15 (robbery in the first degree) of the penal law committed by a
person thirteen, fourteen or fifteen years of age;
§ 60. Subdivision 4 of section 308.1 of the family court act, as
amended by chapter 663 of the laws of 1985, is amended to read as
follows:
4. The probation service shall not adjust a case in which the child
has allegedly committed a delinquent act which would be a crime defined
in section 120.25, (reckless endangerment in the first degree), subdivi-
sion one of section 125.15, (manslaughter in the second degree), subdi-
vision one of section 130.25, (rape in the third degree), subdivision
one of section 130.40, ([sodomy ] criminal sexual act in the third
degree), subdivision one or two of section 130.65, (sexual abuse in the
first degree), section 135.65, (coercion in the first degree), section
140.20, (burglary in the third degree), section 150.10, (arson in the
third degree), section 160.05, (robbery in the third degree), subdivi-
sion two, three or four of section 265.02, (criminal possession of a
weapon in the third degree), section 265.03, (criminal possession of a
weapon in the second degree), or section 265.04, (criminal possession of
a dangerous weapon in the first degree) of the penal law where the child
has previously had one or more adjustments of a case in which such child
allegedly committed an act which would be a crime specified in this
subdivision unless it has received written approval from the court and
the appropriate presentment agency.
§ 61. Subdivision 2 of section 343.1 of the family court act, as added
by chapter 920 of the laws of 1982, 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 [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 ] under either of the above
provisions, a witness is deemed to be ineligible to testify under oath,
the witness may nevertheless be permitted to give unsworn evidence if
the court is satisfied that the witness possesses sufficient intelli-
gence and capacity to justify the reception thereof.
§ 62. Subdivision 3 of section 344.4 of the family court act, as added
by chapter 761 of the laws of 1987, is amended to read as follows:
3. rebuts evidence introduced by the presentment agency of the
victim's failure to engage in sexual intercourse, [deviate sexual inter-
course ] oral sexual conduct, anal sexual conduct or sexual contact
during a given period of time; or
§ 63. Subdivision 1 of section 347.1 of the family court act, as added
by chapter 76 of the laws of 1995, is amended to read as follows:
1. (a) In any proceeding where the respondent is found pursuant to
section 345.1 or 346.1 of this article, to have committed a felony
offense enumerated in any section of article one hundred thirty of the
penal law, or any subdivision of section 130.20 of such law, for which
an act of "sexual intercourse" [or ], "[deviate sexual intercourse ] oral
sexual conduct" or "anal sexual conduct", as those terms are defined in
section 130.00 of the penal law, is required as an essential element for
the commission thereof, the court must, upon a request of the victim,
order that the respondent submit to human immunodeficiency (HIV) related
testing. The testing is to be conducted by a state, county, or local
public health officer designated by the order. Test results, which shall
not be disclosed to the court, shall be communicated to the respondent
and the victim named in the order in accordance with the provisions of
section twenty-seven hundred eighty-five-a of the public health law.
(b) For the purposes of this section, the term "victim" means the
person with whom the respondent engaged in an act of [sexual intercourse
or deviate sexual intercourse ] "sexual intercourse", "oral sexual
conduct" or "anal sexual conduct", as those terms are defined in section
130.00 of the penal law, where such conduct with such victim was the
basis for the court's finding that the respondent committed acts consti-
tuting one or more of the offenses specified in paragraph (a) of this
subdivision.
§ 64. Section 4 of the judiciary law, as amended by chapter 649 of the
laws of 1945, is amended to read as follows:
§ 4. Sittings of courts to be public. The sittings of every court
within this state shall be public, and every citizen may freely attend
the same, except that in all proceedings and trials in cases for
divorce, seduction, abortion, rape, assault with intent to commit rape,
[sodomy ] criminal sexual act, bastardy or filiation, the court may, in
its discretion, exclude therefrom all persons who are not directly
interested therein, excepting jurors, witnesses, and officers of the
court.
§ 65. Paragraph (g) of subdivision 7 of section 218 of the judiciary
law, as added by chapter 187 of the laws of 1992, is amended to read as
follows:
(g) no audio-visual coverage shall be permitted of the victim in a
prosecution for rape, [sodomy ] criminal sexual act, sexual abuse or
other sex offense under article one hundred thirty or section 255.25 of
the penal law; notwithstanding the initial approval of a request for
audio-visual coverage of such a proceeding, the presiding trial judge
shall have discretion throughout the proceeding to limit any coverage
which would identify the victim, except that said victim can request of
the presiding trial judge that audio-visual coverage be permitted of his
or her testimony, or in the alternative the victim can request that
coverage of his or her testimony be permitted but that his or her image
shall be visually obscured by the news media, and the presiding trial
judge in his or her discretion shall grant the request of the victim for
the coverage specified;
§ 66. Whenever the term "sodomy" is used generally or with any specif-
icity of degree in any provision of law, such term shall be deemed to
mean and refer to criminal sexual act.
§ 67. Whenever the term "deviate sexual intercourse" is used in any
provision of law, such term shall be deemed to mean and refer to oral
sexual conduct or anal sexual conduct.
§ 68. Section 631 of the executive law is amended by adding a new
subdivision 13 to read as follows:
13. Notwithstanding any other provision of law, rule, or regulation to
the contrary, when any New York state accredited hospital, accredited
sexual assault examiner program, or licensed health care provider
furnishes services to any sexual assault survivor, including but not
limited to a health care forensic examination in accordance with the sex
offense evidence collection protocol and standards established by the
department of health, such hospital, sexual assault examiner program, or
licensed healthcare provider shall provide such services to the person
without charge and shall bill the board directly. The board, in consul-
tation with the department of health, shall define the specific services
to be covered by the sexual assault forensic exam reimbursement fee,
which must include at a minimum forensic examiner services, hospital or
healthcare facility services related to the exam, and related laboratory
tests and pharmaceuticals. Follow-up HIV post-exposure prophylaxis costs
shall continue to be reimbursed according to established board proce-
dure. The board, in consultation with the department of health, shall
also generate the necessary regulations and forms for the direct
reimbursement procedure. The rate for reimbursement shall be eight
hundred dollars, to be reviewed and adjusted annually by the board in
consultation with the department of health. The hospital, sexual assault
examiner program, or licensed health care provider must accept this fee
as payment in full for these specified services. No additional billing
of the survivor for said services is permissible. A sexual assault
survivor may voluntarily assign any private insurance benefits to which
she or he is entitled for the healthcare forensic examination, in which
case the hospital or healthcare provider may not charge the board. A
hospital, sexual assault examiner program or licensed health care
provider shall, at the time of the initial visit, request assignment of
any private health insurance benefits to which the sexual assault survi-
vor is entitled on a form prescribed by the board; provided, however,
such sexual assault survivor shall be advised orally and in writing that
he or she may decline to provide such information regarding private
health insurance benefits if he or she believes that the provision of
such information would substantially interfere with his or her personal
privacy or safety and in such event, the sexual assault forensic exam
fee shall be paid by the board. Such sexual assault survivor shall also
be advised that providing such information may provide additional
resources to pay for services to other sexual assault victims. If he or
she declines to provide such health insurance information, he or she
shall indicate such decision on the form provided by the hospital, sexu-
al assault examiner program or licensed health care provider, which form
shall be prescribed by the board.
§ 69. Subparagraph (iii) of paragraph (b) of subdivision 1 of section
70.10 of the penal law is amended to read as follows:
(iii) that the defendant was not pardoned on the ground of inno-
cence[. ]; and
§ 70. Paragraph (b) of subdivision 1 of section 70.10 of the penal law
is amended by adding a new subparagraph (iv) to read as follows:
(iv) that such conviction was for a felony offense other than persist-
ent sexual abuse, as defined in section 130.53 of this chapter.
§ 71. Section 56 of chapter 1 of the laws of 2000, enacting the sexual
assault reform act, is REPEALED.
§ 72. This act shall take effect on the first of November next
succeeding the date on which it shall have become a law; provided,
however, that section sixty-eight of this act shall take effect on April
1, 2005 and shall apply to claims for payments made for services
rendered on and after such date; and provided further that the
provisions of section 218 of the judiciary law, as amended by section
sixty-five of this act, shall not be construed to affect the expiration
of such section as set forth in subdivision 11 of such section 218, but
shall be deemed to amend such expired provisions in the event that such
provisions shall be revived.

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