Changes the age of the victim of aggravated assault, penal law 120.12, from less than eleven to less than fourteen

Summary of specific provisions

Section 1 of the bill amends § 120.12 of the Penal Law to raise the age of a victim of aggravated assault from eleven to fourteen. This brings within the protections of the statute eleven, twelve and thirteen year-olds. Assault in the second degree and Assault in the first degree are added as new predicate crimes. In addition, the look-back period for a predicate crime to trigger this aggravated crime is extended to ten years from the current three.

Section 2 of the bill is the effective date.

Justification

In 1990, the Legislature enacted § 120.12 of the Penal Law designed to enhance the penalties for an adult (a person eighteen years of age or older) who assaults a child (a person less than eleven years of age) and thereby causes injury. This legislation expands on that very good idea to broaden its protections to eleven, twelve and thirteen year-olds and impose a longer period of time for a predicate crime. The current statute is designed to punish as a felon any adult who engages in successive misdemeanor assaults upon a child within a three-year period. The original sponsor believed § 120.12 was necessary to assist prosecutors in child abuse cases where proof of intent was difficult and most indictments were resulting in simple 3rd degree assault convictions, a Class A misdemeanor.

According to the Division of Criminal Justice Services, in the ensuing 22 years, while prosecutions have increased somewhat, convictions have not. Since a successful prosecution in 1996, 159 defendants have been charged with aggravated assault upon a person less than eleven years old without another single conviction. This evidence suggests that as a plea bargaining tool this statute has a place, but as an effective weapon in a prosecutor's arsenal, its requires upgrading. By increasing the age of the victim from "less than eleven years of age" to "less than fourteen years of age", we bring under the protection of the statute eleven, twelve and thirteen year-olds. In addition, by adding two predicate crimes and extending the period for a predicate crime to trigger a prosecution under the statute, we provide further protection to children who have been subject to additional abuse over a longer period of time.

The following is based on information in the Division of Criminal Justice Services Computerized Criminal History database as of May 23, 2011:

o Since November 1, 1990, the effective date of this statute, there have been 457 arrest events in which the defendant was charged with at least One count of PL 120.12. This number includes arrests where the

PL 120.12 offense was the top charge or an underlying charge in the arrests event and also includes completed and attempted versions of the crime.

o There have been 26 cases in which the defendant was convicted of at least one count of PL 120.12. This number includes convictions where the PL 120.12 offense was the top conviction charge or an underlying conviction charge and also includes completed and attempted versions of the crime. (Two of the convictions resulted in a Youthful Offender adjudication.)

o Two of the defendants convicted of PL 120.12 had previously been convicted of PL 120.05 (assault in the second degree). (One of the PL 120.05 convictions resulted in a youthful offender adjudication.) No cases were identified where a defendant convicted of PL 120.12 had previously been convicted of PL 120.10 (assault in the first degree).

Prior legislation history

2008: Passed Senate 2009: Senate Codes Committee 2010: Senate Codes Committee - Notice of Committee Consideration Requested; Advanced to Third Reading 2011: Passed Senate 2012: Passed Senate 2013: Passed Senate 2014: Passed Senate

Fiscal implications

None.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall become a law.