Provides that an assault of a child where the defendant has a previous conviction for an assault of a child shall be an assault in the first degree

Section 2 amends section 120.12 of the penal law by designating current language as section 1 and requires that a person is guilty of aggravated assault upon a person less than eleven years old when the defendant commits the crime of assault in the third degree upon a person less than eleven years old and has been previously convicted of such a crime within the preceding ten years, instead of the current three years. This section also changes the offense of aggravated assault upon a person less than eleven years old from a class E felony to a class D felony.

Also amends section 120.12 of the penal law by adding subdivision 2, which requires that aggravated assault upon a person less than eleven years old shall be a class B felony if the person convicted has previously been convicted of aggravated assault upon a person less than eleven years old.

Justification

This bill aims to protect victims of child abuse by strengthening penalties against violent offenders who hurt children. This bill will fix a gap in state law wherein persons convicted of repeat violent assaults upon children are given light sentences, despite the great deal of damage done to the child.

In 2011 in North Tonawanda, NY, an infant boy named Jay J. Bolvin was beaten by his father, Jeremy J. Bolvin, and was left with 11 fractured bones and epilepsy. Jeremy J. Bolvin secured a plea bargain of third-degree assault and attempted second-degree assault and was sentenced to 1 1/3-to-four years in prison. This was the maximum sentence that could be imposed by the judge. However, in 2007, Bolvin was convicted of assault in the third degree after beating another one of his sons and breaking his arm. This shows a clearly defined pattern of abuse.

This bill will strengthen penalties against repeat violent offenders. Under the bill, an adult will be charged with aggravated assault upon a person less than eleven years old, if he or she was previously convicted of assault after hurting a child within the preceding 10 years. This measure strengthens state law by expanding the time window for an aggravated assault charge from three to 10 years.

The legislation would also amend the penal law to make aggravated assault upon a person less than eleven years old a class D felony. If, after release from prison, a third child abuse offense occurs, the aggravated assault charge will become a class B felony. Class D felonies carry a maximum sentence of 7 years, while a class B felony has a maximum sentence of 25 years.

This bill honors young Jay J, who struggles every day to recover from the severe injuries he endured. Jay J suffers from Lennox-Gastaut Syndrome, a neurological condition that causes seizures. According to reports, doctors believe Jay J developed the disease after being abused by his father as an infant. He still suffers 20 to 30 seizures a day and it is likely he will have some cognitive troubles throughout his life.

Legislative history

2012: S.6508 Passed Senate/A.9488 Held for consideration in Codes 2013-14: S.530 PASSED SENATE died in assembly 01/08/14 REFERRED TO CODES

Fiscal implications

None.

Effective date

This act shall take effect immediately.