New York's Sexual
Assault
Reform Act, effective February 1,
2001
The many changes in the Sexual Assault
Reform Act (SARA) are summarized in the following Manual prepared by
the New York Prosecutor's Training Institute (NYPTI) and the NY
District Attorney's Association Sexual Offense
Sub-Committee.
NYPTI
can be reached at 150 State Street, 5th Floor, Albany, New York
12207. 518-432-1100; fax 518-432-1180.
SUBSTANTIVE LAW CHANGES
DRUG FACILITATED SEXUAL
ASSAULT
FACILITATING A SEX OFFENSE WITH A CONTROLLED
SUBSTANCE: SARA creates a new offense in Penal Law § 130.90.
A person is guilty of facilitating a sex offense with a controlled
substance when he or she: 1) knowingly and unlawfully possesses a
controlled substance and administers such substance to another
person without such person’s consent and with intent to commit
against such person conduct constituting a felony defined in
[Penal Law Article 130]; and 2) commits or attempts to commit such
conduct. (D Felony)
CONSECUTIVE SENTENCE PERMISSIBLE: Adds a
new subdivision 2-f to Penal Law § 70.25, which provides that a
court may impose consecutive sentences for facilitating a sex
offense with a controlled substance and the Article 130
substantive offense arising from the same criminal transaction.
PENALTY ENHANCEMENT FOR COMMITTING SEX CRIME
UPON VICTIM WHO IS "MENTALLY INCAPACITATED":
Upgrades offenses committed against a "mentally
incapacitated" victim to "D" felony, Rape 2°,
Penal Law § 130.30 (2); Sodomy 2°, Penal Law § 130.45 (2).
AGGRAVATED SEXUAL ABUSE 3°: Expands Penal
Law § 130.66, by adding a new subdivision (2) to cover instances
where this crime is committed upon a "mentally
incapacitated" victim. (D Felony)
RAPE 3° [Penal Law § 130.25(1)] and SODOMY
3°: [Penal Law § 130.40(1)], are unchanged and may be charged
additionally or in the alternative, in cases where the victim is
incapable of consent by reason of some factor other than being less
than 17 years old. (E Felonies)
NOTE: People v. DiNoia, 105 A.D.2d
799, 481 N.Y.S.2d 738 (2d Dept 1984), prosecution under
"mentally incapacitated" theory need not specify precise
substance utilized or whether defendant administered the
substance; see also, Rapetti v. James, 784 F.2d 85 (2nd
Cir. 1986).
GHB GAMMA HYDROXYBUTYRIC ACID: Amends New
York’s schedule of controlled substances, making its possession
and sale illegal by adding a new paragraph 4 to make GHB a
schedule I drug. The Legislature will provide the weight (amount)
it will take to be a schedule I via an amendment to be added
later. GHB is listed separately in Public Health Law § 3306,
Schedule I (e), ¶ 4 and Schedule III (c), ¶ 12. Unless amended,
this dual listing may cancel legislative intent to make GHB
illegal.
COLLECTION AND TESTING FOR
DATE RAPE DRUGS IN
VICTIM’S BODY
1. RECOGNIZING THE VICTIMS: There is a
threshold to determine those who are date rape drug victims. The
symptoms are often overlooked. Victims of date rape drug
intoxication may exhibit signs of confusion, memory loss, dizziness,
drowsiness, slurred speech, and impaired motor skills.
2. PROMPT COLLECTION: Proper storage and
testing by a qualified laboratory are critical features to proper
detection of drugs frequently used to facilitate a sexual assault.
a. The sooner the better. Difficult to detect
after 72 hours.
b. Most hospitals have victim’s consent form.
Samples will be tested for "recreational drugs" as well.
c. Urine sample. Screw-top plastic container
for urine sample is not currently part of the sexual offense
evidence collection kit. Urine sample must be kept refrigerated.
d. Blood sample should be in gray-top tube.
3. TESTING:
a. Have laboratory protocol in place.
b. In NYC, sample is first sent to the Office
of the Chief Medical Examiner’s Toxicology Lab for general
screening. Only upon the consent of the DA’s Office is the
specimen subsequently sent to a private laboratory, National
Medical Services in Pennsylvania for GHB and other "date rape
drug" testing. It costs the DA’s office $350 for each test
performed by the private laboratory.
NEW DATE RAPE PROVISIONS
RAPE 3° & SODOMY 3°: SARA creates a
new crime in Penal Law §130.25, and Penal Law §130.40. "He
or she engages in sexual intercourse with another person without
such person's consent where such lack of consent is by
reason of some factor other than incapacity to consent."
Parallel change in Sodomy. (E Felonies)
"SOME FACTOR OTHER THAN INCAPACITY TO
CONSENT": e.g. NOT: -- less than 17; or mentally
disabled; or mentally incapacitated; or physically helpless; or
committed to the custody of state or local corrections where actor
is any employee; or committed to or placed with office of children
and family services where actor is an employee; or a client or
patient where actor is a health care provider.
NEW
DEFINITION OF "LACK OF CONSENT":
Penal Law §130.05(2) provides: "in addition to forcible
compulsion, circumstances under which at the time of the act of
intercourse, the victim clearly expressed that he or she did not
consent to engage in such act, and a reasonable person in the
actor's situation would have understood such person's words and
acts as an expression of lack of consent to such act under all the
circumstances."
NOT LESSER INCLUDED OF RAPE 1°
OR SODOMY 1°: Under the new Act, Rape 3° and Sodomy 3° are
not a lesser included offense of Rape 1° or Sodomy 1° or any other
offense. (C.P.L.§300.50(6)) As an exception to this rule, Rape 3°
or Sodomy 3° MAY be submitted as a lesser included when a)
a reasonable view of the evidence would support a finding and b)
both parties consent to it's submission.
EXAMPLE: A takes B to the movies and
dinner. A takes B home to his apartment for "coffee."
Necking ensues, B says stop and begins to cry; A continues and
ignores B's protestations, managing to pull her clothes off and
have intercourse with B, all the while B is saying NO! B is
shocked and frozen with fear, so she isn't struggling once
intercourse takes place. This case can be prosecuted under the new
law.
SEXUAL ABUSE BY HEALTH
CARE PROVIDERS
"INCAPACITY TO CONSENT": Rape
3°, Penal Law §130.25; Sodomy 3°, Penal Law §1.30.40;
Aggravated Sexual Abuse 4°, Penal Law §130.65-a; Sexual Abuse
3°, Penal Law §130.55. Creates a new crime based on
patient's "incapacity to consent." A patient of a health
care provider or mental health care provider is considered
incapable of consent under certain circumstances. The SARA
legislation punishes the health care provider who has
inappropriate sexual contact with patients. Rape 3° and Sodomy
3° (E Felonies).
HEALTH CARE PROVIDER DEFINED: in Penal Law
§130.00(12) as meaning any person who is, or is required
to be, licensed or registered or holds himself or herself out to
be licensed or registered, or provides services as if he or she
were licensed or registered in the profession of medicine,
chiropractic, dentistry or podiatry under article one hundred
thirty-one, one hundred thirty-two, one hundred thirty-three, or
one hundred forty-one of the Education Law.
MENTAL HEALTH CARE PROVIDER DEFINED: This
phrase is defined in Penal Law §130.00(13) as meaning
"any person who is, or is required to be, licensed or
registered, or holds himself or herself out to be licensed or
registered, or provides mental health services as if he or she
were licensed or registered in the profession of medicine,
psychology or social work under article one hundred thirty-one,
one hundred fifty-three, or one hundred fifty-four of the
Education Law."
CLIENT OR PATIENT: These terms seem to
have their ordinary meaning but are not specifically defined. The
act provides, in Penal Law §130.05(3)(h), that such persons
are incapable of consent where a health care provider or mental
health care provider charged with Rape 3°, Penal Law §130.25;
Sodomy 3°, Penal Law §1.30.40; Aggravated Sex Abuse 4°, Penal Law
§130.65-a; Sexual Abuse 3°, Penal Law §130.55., and the act of
sexual conduct occurs during a treatment session, consultation,
interview, or examination.
DEFENSES AND/OR LIMATATIONS AVAILABLE TO HEALTH
CARE PROVIDERS: Penal Law §130.10, as amended, now defines
defenses and/or limitations available for health care providers
under these circumstances. They are: a) Penal Law §130.10(2);
Conduct performed for a valid medical or mental health care
purpose shall not constitute a violation of any section of this
article in which incapacity to consent is based on the
circumstances set forth in §130.05(3)(h); and b) consent:
Penal Law §130.10(3); In any prosecution for the
crime of Rape 3° as defined in §130.25, Sodomy 3°
as defined in §130.40, Aggravated Sexual Abuse 4° as defined
in § 130.65-a, or Sexual Abuse 3° as defined in §130.55 in
which incapacity to consent is based on the circumstances set
forth in §130.05(3)(h); it shall be an affirmative defense that
the client or patient consented to such conduct charged after
having been expressly advised by the health care or mental health
care provider that such conduct was not performed for a valid
medical purpose.
VICTIM ASSISTANCE
RAPE CRISIS INTERVENTION AND PREVENTION PROGRAM
ACT OF 2000: Building upon New York’s established Rape
Crisis Intervention system, the act created a new Public Health
Law Article 6-A, §§ 695 through 695-e. Defines services
provided, such as counseling, community prevention, hotline,
recruitment and training programs, accompaniment services and
referrals. Authorizes the Department of Health to contract with
local programs to provide services; to provide technical
assistance to programs; to adopt rules and regulations and to
evaluate programs every three years. No specific funding formula
for programs was provided; thus, funding is dependent upon yearly
appropriations. The department shall comprehensively evaluate each
program periodically and shall monitor compliance with the act.
Reports due to the Governor and Legislature 1/15/03 and every 3
years thereafter.
SEXUAL ASSAULT FORENSIC EXAMINER PROGRAMS:
Creates a new subdivision in Public Health Law § 2805-i, whereby
the Commissioner of the Department of Health, after consultation
with DCJS, may designate consenting hospitals as sites for sexual
assault forensic examiner programs. Sets forth criteria for
selection of those sites, with emphasis on providing "as many
state residents as possible ready access to the sexual assault
forensic examiner program". Articulates basic standards for
victim treatment, such as availability of services to victim
within 60 minutes of arriving at the hospital; exam to be
conducted promptly in a private room; services rendered by
specially trained nurse practitioners, registered nurses or
doctors, who are available 24 hours a day every day of the year;
prompt examination and availability of a shower and change of
clothes after examination is completed. Follow up counseling,
medical treatment and referrals should be provided. Does not
affect any program through which a trained NP, RN or physician is
providing appropriate forensic and related services (Physician
Assistants and Nurse Midwives were left out of the language of
this provision. An amendment is planned to remedy the problem by
adding them.) Amends 2805(i) to add a (b) to require the
Commissioner of Health to report to the Governor, Legislature and
others by 11/30/02 on the efficacy of the SAFE programs.
SEXUAL OFFENSE EVIDENCE COLLECTION KITS:
SARA amends Public Health Law § 2805-i, subd. 4-a:.effective
April 1, 2001, hospitals providing treatment to sexual assault
victims are eligible to receive from DCJS, at no cost, sexual
offense evidence collection kits.
CRIME VICTIMS BOARD ("CVB"):
Amends Executive Law § 631(1) to extend the time frame in which
an incest victim needs to report to a criminal justice agency (in
order to receive reparations or Crime Victim Board Awards) to a
reasonable time. It also expands the definition of "Criminal
Justice Agency" for such Victim Board Awards to include
Family Court, Governmental agencies responsible for child/or adult
protective services and to any medical facility that provides a
forensic physical exam for rape and sexual assault victims. Victim
must still file a claim with CVB for reimbursement.
MISCELLANEOUS SEX OFFENSES
FORCIBLE TOUCHING: The Act creates a new
offense, Penal Law §130.52.
A person is guilty of forcible touching when such person
intentionally, and for no legitimate purpose, forcibly touches the
sexual or other intimate parts of another person: 1) for the
purpose of degrading or abusing such person; or 2) for the purpose
of gratifying the actor’s sexual desire. For the purpose of this
section, forcible touching includes the squeezing, grabbing, or
pinching of such other person’s sexual or other intimate parts.
(A Misdemeanor)
MARITAL EXEMPTION: The marital exemption
contained in various sections of Article 130 has been eliminated.
The language of the statute now conforms to the law handed down by
the Court of Appeals in People. v. Liberta, 64 NY2d 152
(1984). Nonetheless, technical amendments to the marital exemption
repeal may be forthcoming. For example, in its current construct,
it would be Rape 3° for a 21 year old to have sexual intercourse
with his or her 16 year old spouse.
CONSENSUAL SODOMY: Penal Law §130.38 has
been repealed and no longer on the books as a crime.
GENDER NEUTRAL: Amends the following making
the language of the statute gender neutral: Rape 1°, 2° and 3°;
Sexual Misconduct, Sodomy 1°, 2° and 3°: and Sexual Abuse 1°,
2° and 3°. It is anticipated that an amendment
will be added making all sex offenses gender neutral.
STATUTORY AGE CHANGES
RAPE 1°: The Act amends Penal Law §130.35
to include a new subsection (4). This raises the age for which
first degree crimes can be charged to include situations where the
victim is less than 13 and the defendant is 18 or more. (B Felony)
RAPE 2°: SARA amends Penal Law §130.30 by:
(1) eliminating the marital exemption, and (2) raising the statutory
rape age from less than 14 to less than 15 years old. The Act also
creates an affirmative defense to the statutory rape provision if
the defendant is less than four years older than the victim. Creates
a new offense where the victim is incapable of consent by reason of
being mentally disabled of mentally incapacitated. (D Felony)
RAPE 3°: Amends Penal Law §130.25 to
delete the requirement that the victim and actor not be married
and creates a new subdivision (3) where the lack of consent is by
reason of some factor other than incapacity to consent. (The ages
remain the same.) (E Felony)
SODOMY 1°: Amends Penal Law §130.50 to
include a new subsection (4). This raises the age for which first
degree crimes can be charged to include situations where the victim
is less than 13 and the defendant is 18 or more. (B Felony)
SODOMY 2°: SARA amends Penal Law § 130.45
to raise the age of the victim from less than 14 to less than 15.
There is an affirmative defense if the defendant is less than four
years older than the victim. Creates a new offense where the victim
is incapable of consent by reason of being mentally disabled of
mentally incapacitated. (D Felony)
SODOMY 3°: The Act amends Penal Law §
130.40 by adding a provision where the defendant engages in
deviate sexual intercourse with another person without such person’s
consent and the lack of consent is by reason of some factor other
than incapacity to consent. (The ages remain the same.) (E Felony)
COURSE OF CONDUCT AGAINST A CHILD 1°& 2°: Penal
Law §§130.75 & 130.80 are both amended by adding a new
subdivision (b) to the first sections. This raises the age for which
crimes can be charged to include situations where the victim is less
than 13 and the defendant is 18 or more. The previously the victim’s
age was less than 11. (B& D Felonies respectively)
USE OR PROMOTION OF A CHILD IN A SEXUAL
PERFORMANCE: Amends Penal Law §§263.05 & 263.15 to when
the child is under the age of 17 instead of under 16. The language
of the affirmative defense, proof of age and definition sections
are all also amended to reflect these changes. (C &D Felonies
respectively) For the crime of Possessing a Sexual Performance by
a child the threshold age of the victim remains the same: under
16: Penal Law §263.16.
OBSCENE SEXUAL PERFORMANCE BY A CHILD: Amends
Penal Law §263.10 to when the child is under 17 instead of under
16. The language of the affirmative defense, proof of age and
definition sections are all also amended to reflect these changes.
(D Felony) For the crime of Possession of an Obscene Sexual
Performance by a Child the threshold age of the victim remains the
same: under 16: Penal Law §263.11.
SWEARABILITY CHANGES
SWEARABILITY CHANGES: Subdivision (2) of
Section 60.20 of the Criminal Procedure Law is amended and the age
of presumptive swearability is lowered from 12 years of age to
nine years of age. A child less than nine years of age may still
testify if the court is satisfied that the child understands the
nature of an oath. A definition of understanding the nature of an
oath has also been added to subsection (2). The statute now states
that a witness understands the nature of an oath if he or she:
1. Appreciates the difference between the truth and falsehood,
2. The necessity for telling the truth, and
3. The fact that a witness, who testifies falsely, may be
punished.
This
definition was added to Section 60.20 as a means of a
clarification and to ensure that swearability determinations are
based upon a more uniform standard.
SEXUAL ASSAULT AGAINST THE
MENTALLY DISABLED
MENTALLY DISABLED DEFINED: Subdivision 3 (b)
of Section 130.05 of the Penal Law is amended and the term mentally
defective is changed to mentally disabled. This change is made
throughout the sexual offense article.
RAPE 2° AND SODOMY: 2°: Rape
2° and Sodomy 2° are amended and new subsection two’s are added
which elevate sexual intercourse and deviate sexual intercourse with
a mentally disabled or mentally incapacitated victim from an E
felony to a D felony.
SEX OFFENSE - DEFENSE AND CORROBORATION:
Sections 130.10 and 130.16 remain unchanged with respect to mentally
disabled victims, except for changes in language and gender
neutrality as noted above.
AGGRAVATED SEXUAL ABUSE 4°: A new section,
(§130.65-a) has been added to the statute that will enable
Aggravated Sexual Abuse to be charged when no force is used on
mentally disabled victims or the victim is not also physically
helpless or less than eleven. (E Felony)
Subsection (a) of §130.65-a applies to
situations where a foreign object is inserted in the vagina,
urethra, penis or rectum and the victim is incapable of consent by
reason of some factor other than being less than 17.
Subsection (b) of §130.65-a applies where there
is an insertion of the finger causing physical injury and the victim
is incapable of consent by reason of some factor other than being
less than 17. Subsection 2 of §130.65-a exempts conduct performed
for a valid medical purpose from this section.
AGGRAVATED SEXUAL ABUSE 3°: A new subsection
(2) is added to Penal Law §130.66 and applies to situations where a
foreign object is inserted and causes physical injury in victims who
are incapable of consent by reason of being mentally disabled or
mentally incapacitated. The previous subsection (2) is now
renumbered to subsection (3).
DISCOVERY
RANGHELLE REPEALED: A
new CPL §240.75 is added to provide that the failure of a
prosecutor to disclose certain statements under the discovery rules
does not require a new pretrial hearing or that the conviction be
overturned unless the defendant shows there is a reasonable
possibility that non-disclosure "materially contributed"
to the result of the trial or proceeding. This language is in
response to the difficulties faced by prosecutors since People v.
Ranghelle, 69 N.Y.2d 56 (1986).
SENTENCING AND SUPERVISION
LAW CHANGES
POST-RELEASE CHANGES
I. PERIODS OF PROBATION EXTENDED FOR SEXUAL
ASSAULTS:
A. New Law contained in Subd. 3 of P.L.§65.00
B. "Sexual Assault" defined
1. Sex Offenses - P.L. Article 130
2. Sexual Performance By A Child-P.L. Article 263
3. Incest-P.L. Article 255. Section 25
4. Attempts to commit any of the above
C. Time Periods
1. felony convictions - extension from 5 to 10
years
2. misdemeanor convictions
a. "A" - extension from 3 to 6 years
b. "B" - 1 year probation
c. unclassified misdemeanor
(i) 3 years probation, if authorized
sentence is >3 months
(ii) otherwise 1 year
D. Revocation of Probation
1. revert to remaining period of original
probation, or
2. 1 year, whichever is greater
II. NEW YORK SEX OFFENDER REGISTRATION ACT
"SORA":
A. Information to the Public
1. "900" Preamble (Correction Law
§168-p new subd. 2)
a. reduction to 50 cents for this call
b. statement that an information package is
available to the public
(i) Q & A about SORA
(ii) sex abuse and abduction prevention
materials
2. new para(a) subdiv.(1) Correction Law §168-b
requires sex offenders to provide additional information to the
register
a. any internet accounts "belonging to
such offender" and any internet screen names "used by
such offender"
b. identifying information now required in
addition to previously required, name, alias, DOB, sex, race,
height, weight, eye color, driver’s license number and home
address
III. SEX OFFENDERS PROHIBITED FROM SCHOOL
GROUNDS:
A. New Law
1. new subd. 9 of Sec. 272, Correction Law and
2. new Subd.14 of Executive Law 259-c subdiv.13
3. Subd. 4-a, sec. 7, §65.10, Penal Law
B. Mandatory condition of release
C. Conditions required
4. victim less than 18 and
5. conviction for one of the following offenses:
a. Article 130-Sex Offenses
b. Article 235-Obscenity and Related Offenses
c. Article 263-Sexual Performance By A Child
d. Article 255-Offenses Affecting the Marital Relationship
Section 25 Incest, and
3. release under one of the following conditions:
a. probation
b. conditional discharge pursuant to P.L.
§70.40
c. paroled or conditionally released after
serving sentence
D. Such sentenced offender shall refrain from
1. "knowingly entering into or upon any
school grounds" or
2. "any other facility or institution
primarily used for the care or treatment of persons under the age of
eighteen while one or more of such persons under the age of 18 are
present."
a. PL.§220.00(14) defines, school grounds
"School grounds" means
(a) in or on or within any building,
structure, athletic playing field, playground or land contained
within the real property boundary line of a public or private
elementary, parochial, intermediate, junior high, vocational, or
high school, or
(b) any area accessible to the public located
within one thousand feet of the real property boundary line
comprising any such school or any parked automobile or other
parked vehicle located within one thousand feet of
the real property boundary line comprising any such school.
For the purpose of this section an "area
accessible to the public" shall mean sidewalks, streets,
parking lots, parks, playground, stores and restaurants.
b. "Facility or institution" not
defined in the Statute
3. exceptions
a. ex offender is a registered student,
participant or employee or has a family member enrolled therein
(i) written authorization from probation or
court AND
(ii) superintendent or chief administrator
of facility AND
(iii) purpose for presence is authorized by
probation, court and superintendent
POST- CONVICTION CHANGES
I. REMAND FOR CERTAIN OFFENSES COMMITTED
AGAINST CHILDREN:
A. Mandatory: "superior court may NOT
order recognizance or bail or permit a defendant to remain at
liberty...after conviction." (emphasis added)
B. New law amends C.P.L. §530.40(3) and
C.P.L.§530.45(1)
C. Application
1. Conviction
2. Class B or C felony
3. Article 130-Sex Offenses and Attempts
4. Crime victims <18
II. REVOCATION OF BAIL/RECOGNIZANCE DURING
APPEAL:
A. Amends C.P.L.§530.50
1. revokes judge’s authority to order bail or
recognizance during pendency of appeal
2. convictions applicable
a. other than D or Class E
b. Article 130
c. attempts and completed felonies
d. victim <18 years old
III. DISCRETIONARY ENHANCED SENTENCING FOR CHILD
SEXUAL ASSAULT:
A. New C.P.L. §200.62
1. applicable convictions
a. felonies only
b. P.L. Article 130
c. completed and Attempts
d. victim <15 at the time of the commission
of the crime
2. mechanism for discretionary enhanced
sentencing
a. filing
( i) indictment MAY be accompanied by a
special information filed by the District Attorney with the
court containing above allegations
(ii) need not "file" when age of
the victim is element of offense charged in indictment
b. arraignment of defendant
prior to trial, or after the commencement of
trial but before
the close of the People’s case
(i) in the absence of the jury
(ii) defendant admits-deemed established
(iii) defendant can plead guilty without
admitting allegations in special information of new subd.(14)
C.P.L.§220.60-hearing MUST be set
(iv) defendant denies or remains mute, then
People’s burden
(v) proof BRD before the jury or if jury
waived then before the court
(vi) proof that victim was less than 15 at
the time of commission or attempted commission
3. decision on predicate status made after
verdict regarding offense
(i) determination is binding "in any
future proceeding" unless vacated or reversed
SENTENCING
I. SECOND CHILD SEXUAL ASSAULT FELONY OFFENDER
1. "Sexual assault against a child"
defined - Adds new P.L. § 70.07:
a. Article 130.00 sexual conduct
b. attempts and completed crimes
c. < 15 year old victim
d. 10 years extended to 15 years
e. B Felony with B or C predicate,
indeterminate sentence, maximum is life, minimum is 15-25
f. C Felony with B or C predicate,
determinate sentence of 12 years not to exceed 30 years or
indeterminate sentence, maximum life and minimum15-25.
g. e. C felony with a D or E predicate,
determinate sentence of minimum 10 years, maximum 25 years
h. D felony with felony predicate, determinate
sentence of minimum 5 years, maximum 15 years
i. E felony with felony predicate, determinate
minimum 4 years, maximum 12
2. Procedure – Adds new C.P.L.§400.19
a. Applicability: both the underlying and
instant conviction must be for "sexual assault upon a
child"
b. discretionary filing of statement by
prosecutor indicating date and place of each alleged predicate
c. service upon defendant of prosecutor’s
statement
d. hearing required unless uncontroverted
e. court must enter finding
f. hearing
(i) before the court without a jury
(ii) burden of proof upon the People
(iii) standard of proof BRD
(iv) trial evidentiary rules apply
(v) People need not prove defendant knew
child was <15
(vi) defendant can challenge on the grounds
that the underlying conviction was unconstitutionally obtained
(vii) failure of defendant to challenge
conviction constitutes waiver unless good cause show
(viii) this finding is binding in any
future proceeding
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