2023 New York Laws › PEN - Penal › Part 2 - Sentences › Title E - Sentences › Article 70 - Sentences of Imprisonment › 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.