Please define Section 130.35, Class B, Category F, Degree 1" in regards to a rape conviction?
Full Question:
In regard to a rape conviction, please define "Section 130.35, Class B, Category F, Degree 1"
01/04/2008 |
Category: Courts ยป Legal Defini... |
State: New York |
#14449
Answer:
The following are New York statutes:
§ 130.35 Penal. Rape in the first degree.
A person is guilty of rape in the first degree when he or she engages in
sexual intercourse with another person:1. By forcible compulsion; or
2.
Who is incapable of consent by reason of being physically helpless; or
3.
Who is less than eleven years old; or
4. Who is less than thirteen years
old and the actor is eighteen years old or more. Rape in the first degree
is a class B felony.
§ 55.05 Penal. Classifications of felonies and misdemeanors.
1. Felonies. Felonies are classified, for the purpose of sentence, into
five categories as follows:
(a) Class A felonies;
(b) Class B felonies;
(c) Class C felonies;
(d) Class D felonies; and
(e) Class E felonies.
Class A felonies are subclassified, for the purpose of sentence, into two
categories as follows: subclass I and subclass II, to be known as class A-I
and class A-II felonies, respectively.
2. Misdemeanors. Misdemeanors are classified, for the purpose of
sentence, into three categories as follows:
(a) Class A misdemeanors;
(b) Class B misdemeanors; and
(c) Unclassified misdemeanors.
§ 60.13 Penal. Authorized dispositions; felony sex offenses.
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE APRIL 13, 2007.]
When a person is to be sentenced upon a conviction for any felony defined
in article one hundred thirty of this chapter, including a sexually
motivated felony, or patronizing a prostitute in the first degree as
defined in section 230.06 of this chapter, incest in the second degree as
defined in section 255.26 of this chapter, or incest in the first degree as
defined in section 255.27 of this chapter, or a felony attempt or
conspiracy to commit any of these crimes, the court must sentence the
defendant in accordance with the provisions of section 70.80 of this title.
§ 70.80 Penal. Sentences of imprisonment for conviction of a felony sex
offense.
[EDITORS' NOTE: THE TEXT OF THIS SECTION IS EFFECTIVE APRIL 13, 2007.]
1. Definitions.
(a) For the purposes of this section, a "felony sex offense" means a
conviction of any felony defined in article one hundred thirty of this
chapter, including a sexually motivated felony, or patronizing a prostitute
in the first degree as defined in section 230.06 of this chapter, incest in
the second degree as defined in section 255.26 of this chapter, or incest
in the first degree as defined in section 255.27 of this chapter, or a
felony attempt or conspiracy to commit any of the above.
(b) A felony sex offense shall be deemed a "violent felony sex offense"
if it is for an offense defined as a violent felony offense in section
70.02 of this article, or for a sexually motivated felony as defined in
section 130.91 of this chapter where the specified offense is a violent
felony offense as defined in section 70.02 of this article.
(c) For the purposes of this section, a "predicate felony sex offender"
means a person who stands convicted of any felony sex offense as defined in
paragraph (a) of this subdivision, other than a class A-I felony, after
having previously been subjected to one or more predicate felony
convictions as defined in subdivision one of section 70.06 or subdivision
one of section 70.04 of this article.
(d) For purposes of this section, a "violent felony offense" is any
felony defined in subdivision one of section 70.02 of this article, and a
"non-violent felony offense" is any felony not defined therein.
2. In imposing a sentence within the authorized statutory range for any
felony sex offense, the court may consider all relevant factors set forth
in section 1.05 of this chapter, and in particular, may consider the
defendant's criminal history, if any, including any history of sex
offenses; any mental illness or mental abnormality from which the defendant
may suffer; the defendant's ability or inability to control his sexual
behavior; and, if the defendant has difficulty controlling such behavior,
the extent to which that difficulty may pose a threat to society.
3. Except as provided by subdivision four, five, six, seven or eight of
this section, or when a defendant is being sentenced for a conviction of
the class A-II felonies of predatory sexual assault and predatory sexual
assault against a child as defined in sections 130.95 and 130.96 of this
chapter, or for any class A-I sexually motivated felony for which a life
sentence or a life without parole sentence must be imposed, a sentence
imposed upon a defendant convicted of a felony sex offense shall be a
determinate sentence. The determinate sentence shall be imposed by the
court in whole or half years, and shall include as a part thereof a period
of post-release supervision in accordance with subdivision two-a of section
70.45 of this article. Persons eligible for sentencing under section 70.07
of this article governing second child sexual assault felonies shall be
sentenced under such section and paragraph (j) of subdivision two-a of
section 70.45 of this article.
4.
(a) Sentences of imprisonment for felony sex offenses. Except as
provided in subdivision five, six, seven, or eight of this section, the
term of the determinate sentence must be fixed by the court as follows:
(i) for a class B felony, the term must be at least five years and must
not exceed twenty-five years;
(ii) for a class C felony, the term must be at least three and one-half
years and must not exceed fifteen years;
(iii) for a class D felony, the term must be at least two years and must
not exceed seven years; and
(iv) for a class E felony, the term must be at least one and one-half
years and must not exceed four years.
(b) Probation. The court may sentence a defendant convicted of a class D
or class E felony sex offense to probation in accordance with the
provisions of section 65.00 of this title.
(c) Alternative definite sentences for class D and class E felony sex
offenses. If the court, having regard to the nature and circumstances of
the crime and to the history and character of the defendant, is of the
opinion that a sentence of imprisonment is necessary but that it would be
unduly harsh to impose a determinate sentence upon a person convicted of a
class D or class E felony sex offense, the court may impose a definite
sentence of imprisonment and fix a term of one year or less.
5. Sentence of imprisonment for a predicate felony sex offender.
(a)
Applicability. This subdivision shall apply to a predicate felony sex
offender who stands convicted of a non-violent felony sex offense and who
was previously convicted of one or more felonies.
(b) Non-violent predicate felony offense. When the court has found,
pursuant to the provisions of the criminal procedure law, that a person is
a predicate felony sex offender, and the person's predicate conviction was
for a non-violent felony offense, the court must impose a determinate
sentence of imprisonment, the term of which must be fixed by the court as
follows:
(i) for a class B felony, the term must be at least eight years and must
not exceed twenty-five years;
(ii) for a class C felony, the term must be at least five years and must
not exceed fifteen years;
(iii) for a class D felony, the term must be at least three years and
must not exceed seven years; and
(iv) for a class E felony, the term must be at least two years and must
not exceed four years.
(c) Violent predicate felony offense. When the court has found, pursuant
to the provisions of the criminal procedure law, that a person is a
predicate felony sex offender, and the person's predicate conviction was
for a violent felony offense, the court must impose a determinate sentence
of imprisonment, the term of which must be fixed by the court as follows:
(i) for a class B felony, the term must be at least nine years and must
not exceed twenty-five years;
(ii) for a class C felony, the term must be at least six years and must
not exceed fifteen years;
(iii) for a class D felony, the term must be at least four years and must
not exceed seven years; and
(iv) for a class E felony, the term must be at least two and one-half
years and must not exceed four years.
(d) A defendant who stands convicted of a non-violent felony sex offense,
other than a class A-I or class A-II felony, who is adjudicated a
persistent felony offender under section 70.10 of this article, shall be
sentenced pursuant to the provisions of section 70.10 or pursuant to this
subdivision.
6. Sentence of imprisonment for a violent felony sex offense. Except as
provided in subdivisions seven and eight of this section, a defendant who
stands convicted of a violent felony sex offense must be sentenced pursuant
to the provisions of section 70.02, section 70.04, subdivision six of
section 70.06, section 70.08, or section 70.10 of this article, as
applicable.
7. Sentence for a class A felony sex offense. When a person stands
convicted of a sexually motivated felony pursuant to section 130.91 of this
chapter and the specified offense is a class A felony, the court must
sentence the defendant in accordance with the provisions of:
(a) section 60.06 of this chapter and section 70.00 of this article, as
applicable, if such offense is a class A-I felony; and
(b) section 70.00, 70.06 or 70.08 of this article, as applicable, if such
offense is a class A-II felony.
8. Whenever a juvenile offender stands convicted of a felony sex offense,
he or she must be sentenced pursuant to the provisions of sections 60.10
and 70.05 of this chapter.
9. Every determinate sentence for a felony sex offense, as defined in
paragraph (a) of subdivision one of this section, imposed pursuant to any
section of this article, shall include as a part thereof a period of
post-release supervision in accordance with subdivision two-a of section
70.45 of this article.
