N.Y. Penal Law § 70.07: Sentence of imprisonment for second child sexual assault felony offender

§ 70.07 Sentence of imprisonment for second child sexual assault felony

offender.

1. A person who stands convicted of a felony offense for a sexual

assault against a child, having been subjected to a predicate felony

conviction for 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

chapter, (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

committed against a child less than fifteen years old.

3. For purposes of determining whether a person has been subjected to

a predicate felony conviction under this section, the criteria set forth

in paragraph (b) of subdivision one of section 70.06 shall apply

provided however that for purposes of this subdivision, the terms "ten

year" or "ten years", as provided in subparagraphs (iv) and (v) of

paragraph (b) of subdivision one of such section 70.06, shall be

"fifteen year" or "fifteen years". The provisions of section 400.19 of

the criminal 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 eighteen years of age or older at the time of the commission of the

predicate felony.

4. Where the court has found pursuant to subdivision three of this

section that a person who stands convicted of a felony offense defined

in article one hundred thirty of this chapter for the commission or

attempted commission of a sexual assault against a child has been

subjected to a predicate felony conviction for a sexual assault against

a child, the court shall sentence the defendant as follows:

(a) where the defendant stands convicted of such sexual assault

against a child and such conviction is for a class A-II or class B

felony offense, and the predicate conviction for such sexual assault

against a child is for a class A-II, class B or class C felony offense,

the court shall 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;

(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 A-II, class B or class C felony offense, the court shall impose

a determinate 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;

(c) where the defendant stands convicted of such sexual assault

against a child and the conviction is for a class B felony offense, and

the predicate conviction for such sexual assault against a child is for

a class D or class E felony offense, the court shall impose a

determinate sentence of imprisonment, the term of which must be at least

twelve years and must not exceed thirty years;

(d) where the defendant stands convicted of such sexual assault

against a child and the conviction is for a class C felony offense, and

the predicate conviction for such sexual assault against a child is for

a class D or class E felony offense, the court shall impose a

determinate sentence of imprisonment, the term of which must be at least

ten years and must not exceed twenty-five years;

(e) where the defendant stands convicted of such sexual assault

against a child and the conviction is for a class D felony offense, and

the predicate conviction for such sexual assault against a child is for

a felony offense, the court shall impose a determinate sentence of

imprisonment, the term of which must be at least five years and must not

exceed fifteen years; and

(f) where the defendant stands convicted of such sexual assault

against a child and the conviction is for a class E felony offense, and

the predicate conviction for such sexual assault against a child is for

a felony offense, the court shall impose a determinate sentence of

imprisonment, the term of which must be at least four years and must not

exceed twelve years.

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

predicate felony conviction for sexual assault against a child as

defined in subdivision two of this section; and (c) who was under the

age of eighteen 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.