2006 New York Code - 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 B felony offense, and
  the  predicate conviction for such sexual assault against a child is for
  a class B  or  class  C  felony  offense,  the  court  shall  impose  an
  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  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.

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