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THE CRIMINAL LA W NEWS - Westchester County District Attorney

VIEWS: 29 PAGES: 6

									N E W S                                     Janet DiFiore, District Attorney, Westchester County



                                              I N T HIS I SSUE
                                              New Legislation

                                              November 2006
                                              Volume 1, Number 1
L A W




                  From The District Attorney’s Desk
                  I am delighted to introduce my administration’s inaugural issue of The Criminal Law
                  News. This newsletter originally debuted under the administration of the late Carl
                  A. Vergari and it gives me great pleasure to continue in the tradition of my
                  esteemed colleague and predecessor by re-introducing The Criminal Law News.
                  Collaboration and cooperation among and between the District Attorney’s Office
                  and local law enforcement enables us to meet our obligation to satisfy the public
C R I M I N A L




                  safety needs of those we serve. Through the distribution of this newsletter we in
                  the District Attorney’s Office hope to provide our partners in law enforcement with
                  useful and practical information. I am confident that The Criminal Law News will
                  serve as an invaluable tool for each of the police departments and agencies that
                  serve this county.
                  The newsletter will be issued electronically on a quarterly basis. Each issue will
                  address current topics that are of interest to local law enforcement agencies.
                  The Fall 2006 issue is devoted to recently-enacted legislation – new crimes,
                  procedural changes, and increased penalties. In this issue you will find detailed
                  summaries of the expansion of the New York State CODIS (Combined DNA Index
                  System) database, the elevation of the seriousness of the crime of possession of a
                  loaded handgun outside a home or business from a D violent felony to a C violent
                  felony and the new crime of reckless assault of a child based upon the violent
                  shaking of a baby. This law is named for Cynthia Gibbs, an eight-month old baby,
                  who was killed in Westchester County by her babysitter and whose father tirelessly
                  spearheaded efforts to create a new assault crime for the serious physical injuries
                  sustained when a baby is violently shaken.
T H E




                  We hope you enjoy this inaugural issue of The Criminal Law News and we look
                  forward to hearing from you about topics of interest you would like to have explored
                  in our upcoming issues.
                  It is my distinct honor to serve as your District Attorney here in Westchester
                  County. On behalf of all of us in the District Attorney’s Office I thank you for your
                  service to our community and extend our very best wishes for a safe, healthy and
                  happy holiday season for you and your families.
EXPANSION OF NEW YORK STATE CODIS                             menacing in the second degree (120.14)
DATABASE                                                      menacing in the third degree (120.15)
                                                              reckless endangerment in the second degree (120.20)
Effective June 23, 2006, Executive Law 995-c (3) and          stalking in the fourth degree (120.45)
995(7)(c) provide that persons                                stalking in the third degree (120.50)
convicted of any felony offense                               attempted stalking in the second degree (110/120.55)
defined in the Penal Law and 34                               criminal trespass in the second degree (140.15)
designated misdemeanors must                                  possession of burglar’s tools (140.35)
provide a DNA sample for the New                              petit larceny (155.25)
York State CODIS database upon                                endangering the welfare of a child (260.10)
conviction     and     sentencing.                            endangering the welfare of an incompetent or
Collection of forensic evidence at                               physically disabled person (260.25)
crime scenes may result in DNA profiles which can now      TROOPER CRAIG J. TODESCHINI:
be compared to a larger sample of DNA from the
                                                           UNLAWFUL FLEEING A POLICE OFFICER ACT
convicted offender database (L. 2006, ch. 2).
                                                           Effective November 1, 2006, the following three new
      34 DESIGNATED MISDEMEANORS:                          sections have been added to the Penal Law (L. 2006,
  sexual misconduct (130.20)                               ch. 738):
  attempted sexual misconduct (110/130.20)
                                                              A person is guilty
  attempted rape in the third degree (110/130.25)
                                                              of       unlawfully
  attempted criminal sexual act in the third degree
                                                              fleeing a police
     (110/130.40)
  sexual abuse in the second degree (130.60)                  officer in a motor
  attempted sexual abuse in the second degree                 vehicle in the
     (110/130.60)                                             third       degree
  attempted incest (110/255.25)                               (270.25), a Class
  attempted possessing an obscene sexual performance          A misdemeanor,
  by a child (110/263.11)                                     when, knowing that he or she has been directed to
  attempted possessing a sexual performance by a              stop his or her motor vehicle by a uniformed police
     child (110/263.16)                                       officer or a marked police vehicle by the activation of
  unlawful imprisonment in the second degree(135.05)          either the lights or the lights and siren of such
  attempted unlawful imprisonment in the second degree        vehicle, he or she attempts to flee such officer or
  (110/135.05)                                                such vehicle by driving at speeds which equal or
  attempted unlawful imprisonment in the first                exceed 25 miles per hour above the speed limit or
     degree(110/135.10)                                       engaging in reckless driving as defined in VTL 1212.
  patronizing a prostitute in the third degree (230.04)       A person is guilty of unlawfully fleeing a police officer
  attempted patronizing a prostitute in the third degree
                                                              in a motor vehicle in the second degree (270.30), a
     (110/230.04)
                                                              Class E felony, when he or she commits the offense
  attempted patronizing a prostitute in the second
     degree(110/230.05)
                                                              of unlawfully fleeing a police officer in a motor
  forcible touching (130.52)                                  vehicle in the third degree, and as a result of such
  attempted forcible touching (110/230.04)                    conduct, a police officer or a third person suffers
  sexual abuse in the third degree (130.55) -- where          serious physical injury.
     victim is less than 18 years old or defendant            A person is guilty of unlawfully fleeing a police officer
     previously convicted of sex offense or sexually          in a motor vehicle in the first degree (270.35), a
     violent offense                                          Class D felony, when he or she commits the offense
    attempted persistent sexual abuse (110/130.53)            of unlawfully fleeing a police officer in a motor
    attempted aggravated sexual abuse in the fourth           vehicle in the third degree, and as a result of such
       degree (110/130.65-a)                                  conduct, a police officer or a third person is killed.
  assault in the third degree (120.00)
                                                           These new crimes are intended as additional aids to
  attempted aggravated assault upon person less than
                                                           law enforcement. Existing crimes such as homicides
     eleven years old (110/120.12)
  attempted menacing in the first degree (110/120.13)      and assaults may be charged when appropriate on the
                                                           evidence.
CYNTHIA’S LAW                                                ELMINATION OF STATUTE OF LIMITATIONS
Effective November 1, 2006, the Penal Law has been           FOR “B” VIOLENT SEX CRIMES
amended to include the new crime of reckless assault         Effective June 23, 2006, CPL 30.10(2)(a) has been
of a child (120.02), a Class D felony. A person is guilty    amended to expand the crimes which “may be
of reckless assault of a child when, being 18 years or       commenced at any time” to include rape in the first
older, such person recklessly causes serious physical        degree (Penal Law 130.35), criminal sexual act in the
injury to the brain of a child less than five years old by   first degree (Penal Law 130.50), aggravated sexual
shaking the child or by slamming or throwing the child       abuse in the first degree (Penal Law 130.70), and
on a hard surface or object so as to impact the child’s      course of sexual conduct against a child in the first
head (L. 2006, ch. 110).                                     degree (Penal Law 130.75). This amendment applies
                                                             to acts committed on or after June 23, 2006, as well as
                                                             acts committed before that date, provided that the
                                                             statute of limitations had not yet expired (L. 2006,
                                                              ch. 3).
                                                             JESSICA’S LAW
                                                             Effective June 23, 2006, the Penal Law was amended
                                                             by adding two new crimes--predatory sexual assault
                                                             (130.95) and predatory sexual assault against a child
                                                             (130.96), both class A-II felonies which carry mandatory
GUN POSSESSION                                               life sentences with the minimum terms being between
Effective November 1, 2006, possession of a loaded           10 and 25 years. A persistent violent felony offender
firearm outside the home or place of business has been       convicted of either of these new crimes faces a
elevated from a Class D violent felony to the class C        mandatory minimum sentence of 25 years.
violent felony of criminal possession of a weapon in the     A person is guilty of predatory sexual assault when he
second degree (265.03). The legal minimum sentence           or she commits the crime of rape in the first degree,
is now three and one-half years in state prison (L. 2006,    criminal sexual act in the first degree, aggravated
ch. 742).                                                    sexual abuse in the first degree or course of sexual
                                                             conduct against a child in the first degree, and when:
                                                             (1) in the course of committing that crime or in the
                                                             immediate flight therefrom, he or she: (A) causes
                                                             serious physical injury to the victim or such crime or (B)
                                                             uses or threatens the immediate use of a dangerous
                                                             instrument; or (2) he or she has engaged in conduct
                                                             constituting the crime of rape in the first degree,
                                                             criminal sexual act in the first degree, aggravated
                                                             sexual abuse in the first degree, or course of sexual
                                                             conduct against a child in the first degree, against one
EXPANSION OF MEGAN’S LAW                                     or more additional persons; or (3) he or she has
Effective January 18, 2006, SORA (Correction Law             previously been subjected to a conviction for a felony
Article 168) now requires that Level One sex offenders       defined in this article, incest, or use of a child in a
register for 20 years, and Level Two and Three sex           sexual performance.
offenders register for life (L. 2006, ch. 1). The law does   A person is guilty of predatory sexual assault against a
not apply to the Doe v Pataki injunction class, i.e. those   child when, being 18 years old or more, he or she
defendants who were not given notice and opportunity         commits the crime of rape in the first degree, criminal
to contest initial level classification.                     sexual act in the first degree, aggravated sexual abuse
Effective June 23, 2006, DCJS must maintain an               in the first degree, or course of sexual conduct against
internet posting of all Level Two, or moderate risk, sex     a child in the first degree, and the victim is less than 13
offenders, as well as all Level Three offenders. Also,       years old (L. 2006, ch.107).
notification to schools and other institutions serving
vulnerable populations about Level One (low risk)
offenders is now permitted (L. 2006, ch.106).
       INCEST
       Effective November 1, 2006, the Penal Law has been                                        indicated, mandatory assessment for placement in
       amended, adding two new sections, incest in the                                           a treatment program will follow, and sentences of
       second degree (255.26), a Class D felony, and incest in                                   probation or conditional discharge must include
       the first degree (255.27), a Class B felony. Incest in the                                requirement that treatment program be completed;
       second degree is defined as the commission of rape in                                     increases the period of mandatory license
       the second degree (130.30) or criminal sexual act in the                                  revocation, from six months to one year, for refusal
       second degree (130.35) against a victim who is related                                    to submit to a chemical test; and, in cases involving
       to the defendant. Incest in the first degree is defined as                                repeat offenders or operators of commercial
       the commission of rape in the first degree (130.35), as                                   vehicles, increases the revocation period from one
       defined in subdivisions three or four or criminal sexual                                  year to 18 months;
       act in the first degree (130.50), as defined in                                           provides that “persistent offenders” be subject to
       subdivisions three or four, against a victim who is                                       “permanent” revocation if they have three or more
       related to the defendant (L. 2006, ch. 320).                                              convictions, three or more chemical test refusals,
                                                                                                 within a four-year period, or four or more
       COMPELLING PROSTITUTION                                                                   convictions, refusals or a combination thereof within
       Effective June 7, 2006, a person convicted of the felony                                  an eight-year period;
       of compelling prostitution (Penal Law 230.33) must                                        provides that operation of a motor vehicle while
       register as a sex offender. This procedural change                                        under permanent revocation constitutes felony
       applies to persons who committed this crime on or after                                   aggravated unlicensed operation;
       June 7, 2006, or who had not completed their                                              elevates vehicular assault in the second degree to
       sentences on that date (L. 2006, ch. 91).                                                 the first degree, and vehicular manslaughter in the
                                                                                                 second degree to the first degree, when: (1) two or
       COMPRENSHIVE REFORM TO VTL DWI                                                            more persons (other than the defendant) die as a
       LAWS AND ALCOHOL-RELATED CRIMES                                                           result of the crime; (2) the defendant has two or
       Effective November 1, 2006, and                                                           more prior DWI convictions within the previous five
       reflecting the State Legislature’s                                                        years or three or more prior DWI convictions within
       concern over deaths resulting from                                                        the previous ten years; (3) the defendant has a
       alcohol-related crimes, the Vehicle &                                                     prior conviction for a homicide offense resulting
       Traffic Law has undergone wide-ranging changes in this                                    from the operation of a motor vehicle; or (4) the
       area, and related changes have been made to the                                           defendant has a BAC of .18 or higher (i.e.,
       Penal Law. The omnibus bill (L. 2006, ch. 732):                                           aggravated DWI).
            adds the crime of “aggravated” driving while
            intoxicated to VTL 1192, making it an “enhanced”
            misdemeanor if a person’s BAC is .18 [incorrectly
            referred to as “.18 grams” in this legislation, and to
            be corrected by a technical amendment after
            1/1/07], and imposing greater fines, restricting plea
            bargaining, requiring completion of an alcohol and
            drug rehabilitation program, requiring installation of
            an ignition interlock device if the sentence is
            probation, and enhancing the penalties for all other
            alcohol-related driving offenses;
            adds a new section to VTL 1192 which makes it a                                 BILL LEAF-BRANDI WOODS LAW
            misdemeanor when a person’s ability to drive is                                 Effective November 1, 2006, Penal Law 120.04 and
            impaired by the combined effect of drugs and                                    125.13 have been amended so that second degree
            alcohol;                                                                        vehicular assault and second degree vehicular
            imposes mandatory alcohol/drug screening upon                                   manslaughter are now elevated to first degree crimes
            arraignment (or, at court’s discretion, prior to                                when the defendant has a prior conviction under VTL
            sentencing) of first-time arrestees for DWI. Where                              1192 within the prior ten years (L. 2006, ch. 245).*
__________________________________________________________________________________________________________________
*Note that the Bill Leaf-Brandi Woods Law conflicts with the Omnibus DWI legislation in that the former requires only one prior conviction under VTL 1192 within the prior ten
years to elevate vehicular assault and manslaughter from second to first degree levels, while the latter requires three DWI convictions in the prior ten years to so elevate these
crimes. An amendment correcting this problem is expected after January 1, 2007. At present, the Bill Leaf-Brandi Woods Law can and should be used.
DWI CONVICTIONS FROM OTHER STATES                            AGGRAVATED CRIMINAL CONTEMPT
Effective November 1, 2006, out-of-state DWI                 Effective November 1, 2006, a person is guilty of this
convictions which would constitute misdemeanors              crime (Penal Law 215.52), a Class D felony, when he or
and/or felonies in New York will now be recognized as        she commits the crime of criminal contempt in the first
such for purposes of enhanced sentencing (L. 2006,           degree and has been previously convicted of
ch. 231).                                                    aggravated criminal contempt; or he or she commits the
                                                             crime of criminal contempt in the first degree and has
SUPERVISION OF BLOOD TESTS BY NURSE                          been previously convicted of criminal contempt in the
PRACTITIONER OR PA                                           first degree in the preceding five years. Additionally,
Effective August 16, 2006, the public health law             the crime of aggravated criminal contempt has been
(§ 3703) has been amended to now allow certified             added to the list of predicate offenses as an element of
nurse practitioners and registered physicians assistants     criminal contempt in the first degree (L. 2006, ch. 349 &
to supervise the withdrawing of blood for the purpose of     ch. 350).
conducting a test for the presence of alcohol and drugs
                                                             USE OF A CHILD TO SELL DRUGS
in hospital emergency rooms (L. 2006, ch. 618). This
law will aid the police in executing VTL 1194 blood          Effective November 1, 2006, a new crime has been
orders.                                                      added to the Penal Law, use of a
SIMPLIFIED TRAFFIC INFORMATIONS                              child to commit a controlled
                                                             substance offense (220.28), a
Effective November 14, 2006, pursuant to a new               Class E felony. A person is guilty
section, VTL 603-b, police must make a notation on any
                                                             of this new crime when, being 18
simplified traffic information (not just those involving
                                                             years old or more, he or she commits a sale or
DWI arrests) issued in connection with an accident as
                                                             attempted sale of a controlled substance, and as part of
to whether death or serious physical injury was involved
                                                             that criminal transaction, knowingly uses a child (here
(L. 2006, ch. 553).
                                                             defined as a person under 16 years old) to effectuate
HATE CRIMES                                                  the sale. A person “uses a child” in this way by
Effective June 7, 2006, two new sections have been           concealing drugs on the child’s body for the purpose of
added to Penal Law 240.31, aggravated harassment in          effectuating the transaction or “directs, forces or
the first degree, a Class E felony, providing that a                                              otherwise requires”
person is guilty of this crime when he or she publicly                                            the child to sell or
burns a cross, or when he or she etches, paints, draws                                            attempt to sell drugs
upon or otherwise places a swastika, commonly                                                     or     offer    direct
exhibited as the emblem of Nazi Germany, on any                                                   assistance to the
building or other real property, public or private, owned                                         defendant in doing
by any person, firm or corporation or any public agency                                           so (L. 2006, ch.
or instrumentality, without express permission of the        564).
owner or operator of such building or real property          This new crime is intended as an additional aid to law
(L. 2006, ch. 49).                                           enforcement in drug sale prosecutions and does not
ORDERS OF PROTECTION                                         prevent the filing of drug sale crimes when appropriate.
Effective August 25, 2006, CPL 530.12(5) & 530.13(4)         SCHOOL GROUNDS INCLUDE SCHOOL BUS
have been amended, extending final orders of                 Effective September 1, 2006, a “school bus” is now an
protection in felony cases to the greater of either eight    enhancing factor in narcotics crimes in the same
years from the date of sentence or eight years from the      manner that “school grounds” are.           Penal Law
date of expiration of sentence actually imposed. In                                           70.70(a)(i) now adds
Class A misdemeanor cases, the order is extended                                               “school bus” as an
from three to five years; in all other cases, the order is                                      area where the
extended from one to two years (L. 2006, ch. 215).                                              Class B felony of
MUSIC PIRACY                                                                                  criminal sale of a
                                                                              controlled substance applies; Penal
Effective November 1, 2006, Penal Law 275.40, failure
                                                             Law 220.00(17) now defines “school bus;” Penal Law
to disclose the origin of a recording in the first degree
                                                             220.34(7), and 220.44(1) & (2), now include “school
has been amended to reduce the felony threshold from
                                                             bus” as an element of those crimes (L. 2006, ch. 436).
1000 to 100 sound recordings (L. 2006, ch. 682).
COMPUTER CRIME DEFINITIONS                                    NOTICE TO CRIME VICTIMS
Effective November 1, 2006, new definitional sections         Effective January 1, 2007, Executive Law § 625(a)(1)
have been added to various sections of Penal Law              has been amended to require that the police provide
                             Article 156 (as well as          victims who report crimes with
                             § 165.15[11]) to insure that     information regarding their basic
                             the Penal Law “keeps up          rights and the existence of local
                             with the ever-changing           victim assistance services or
                             computer technology” in          programs relevant to their
                             order to “prosecute those        situations. The law requires a
                             who intentionally disrupt,       standardized procedure for the
                             steal personal information       delivery of the information by
and plant malicious programs on people’s computers            police which will be developed
without authorization” (Bill Sponsor’s Memo). It also         jointly by DCJS and the Crime Victims Board and will
codifies a decision by the Court of Appeals (People v         include information cards which must be given to each
Versaggi, 83 NY2d 123 [1994]) (L. 2006, ch. 558).             victim (L. 2006, ch. 173).




 Please be advised that this newsletter contains only summaries of the new legislation. The chapter numbers have been
 provided in each summary so that the reader may access the actual text and the sponsor’s memorandum for each new
 law on the New York State Legislature’s website (http://public.leginfo.state.ny.us/menuf.cgi)




                                          THE CRIMINAL LAW NEWS

                   Prepared by Members of the Appeals and Special Litigation Division
                          of the Westchester County District Attorney’s Office
                                        Anthony J. Servino, Division Chief

                                              EDITORIAL BOARD
                                      Valerie A. Livingston, Editor-in-Chief
                                       Laurie Sapakoff, Assistant Editor
                                       Shara Abraham, Assistant Editor

                  Address: 110 Dr. Martin Luther King Jr. Blvd., White Plains, NY 10601
                                     Division telephone number: 995-3497
                                Office Website: http://www.westchesterda.net

								
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