Bill Text: NY S01573 | 2019-2020 | General Assembly | Introduced
Bill Title: Establishes criminal offenses committed against the elderly or disabled persons.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CODES [S01573 Detail]
Download: New_York-2019-S01573-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1573 2019-2020 Regular Sessions IN SENATE January 15, 2019 ___________ Introduced by Sen. FUNKE -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to establishing a mandatory senior anti-violence services fee imposed upon conviction of a crimi- nal offense and offenses against the elderly and disabled The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The section heading and subdivision 1 of section 60.35 of 2 the penal law, as amended by section 1 of part E of chapter 56 of the 3 laws of 2004, subparagraphs (i), (ii) and (iii) of paragraph (a) of 4 subdivision 1 as amended by section 1 of part DD of chapter 56 of the 5 laws of 2008 and paragraph (b) of subdivision 1 as amended by chapter 6 320 of the laws of 2006, are amended to read as follows: 7 Mandatory surcharge, sex offender registration fee, DNA databank fee, 8 supplemental sex offender victim fee [and], crime victim assistance and 9 a senior anti-violence services fee required in certain cases. 10 1. (a) Except as provided in section eighteen hundred nine of the 11 vehicle and traffic law and section 27.12 of the parks, recreation and 12 historic preservation law, whenever proceedings in an administrative 13 tribunal or a court of this state result in a conviction for a felony, a 14 misdemeanor, or a violation, as these terms are defined in section 10.00 15 of this chapter, there shall be levied at sentencing a mandatory 16 surcharge, sex offender registration fee, DNA databank fee [and], a 17 crime victim assistance fee and a senior anti-violence services fee in 18 addition to any sentence required or permitted by law, in accordance 19 with the following schedule: 20 (i) a person convicted of a felony shall pay a mandatory surcharge of 21 three hundred dollars [and], a crime victim assistance fee of twenty- 22 five dollars, and a senior anti-violence services fee of fifty dollars; 23 (ii) a person convicted of a misdemeanor shall pay a mandatory 24 surcharge of one hundred seventy-five dollars [and], a crime victim EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07046-01-9S. 1573 2 1 assistance fee of twenty-five dollars, and a senior anti-violence 2 services fee of fifty dollars; 3 (iii) a person convicted of a violation shall pay a mandatory 4 surcharge of ninety-five dollars [and], a crime victim assistance fee of 5 twenty-five dollars, and a senior anti-violence services fee of fifty 6 dollars; 7 (iv) a person convicted of a sex offense as defined by subdivision two 8 of section one hundred sixty-eight-a of the correction law or a sexually 9 violent offense as defined by subdivision three of section one hundred 10 sixty-eight-a of the correction law shall, in addition to a mandatory 11 surcharge and crime victim assistance fee, pay a sex offender registra- 12 tion fee of fifty dollars[.], and a senior anti-violence services fee of 13 fifty dollars; 14 (v) a person convicted of a designated offense as defined by subdivi- 15 sion seven of section nine hundred ninety-five of the executive law 16 shall, in addition to a mandatory surcharge and crime victim assistance 17 fee, pay a DNA databank fee of fifty dollars, and a senior anti-violence 18 services fee of fifty dollars. 19 (b) When the felony or misdemeanor conviction in [subparagraphs] 20 subparagraph (i), (ii) or (iv) of paragraph (a) of this subdivision 21 results from an offense contained in article one hundred thirty of this 22 chapter, incest in the third, second or first degree as defined in 23 sections 255.25, 255.26 and 255.27 of this chapter or an offense 24 contained in article two hundred sixty-three of this chapter, the person 25 convicted shall pay a supplemental sex offender victim fee of one thou- 26 sand dollars, and a senior anti-violence services fee of five hundred 27 dollars, in addition to the mandatory surcharge and any other fee. 28 § 2. The penal law is amended by adding a new article 261 to read as 29 follows: 30 ARTICLE 261 31 OFFENSES AGAINST THE ELDERLY AND DISABLED 32 Section 261.00 Elderly, vulnerable elderly and disabled persons; defi- 33 nitions. 34 261.05 Crimes against the elderly and disabled; presumption. 35 261.10 Abandonment of an elderly or disabled person. 36 261.15 Abandonment of an elderly or disabled person; defense. 37 261.20 Endangering the welfare of an elderly or disabled person. 38 261.25 Endangering the welfare of an elderly or disabled person; 39 corroboration. 40 261.30 Endangering the welfare of an elderly or disabled person; 41 defense. 42 261.35 Endangering the welfare of a vulnerable elderly person or 43 a disabled person in the second degree. 44 261.40 Endangering the welfare of a vulnerable elderly person or 45 a disabled person in the first degree. 46 § 261.00 Elderly, vulnerable elderly and disabled persons; definitions. 47 For the purpose of this article, the following definitions shall 48 apply: 49 1. "Caregiver" means a person who (a) assumes responsibility for the 50 care of a vulnerable elderly person pursuant to a court order; or (b) 51 receives monetary or other valuable consideration for providing care for 52 a vulnerable elderly person. 53 2. "Sexual contact" means any touching of the sexual or other intimate 54 parts of a person not married to the actor for the purpose of gratifyingS. 1573 3 1 sexual desire of either party. It includes the touching of the actor by 2 the victim, as well as the touching of the victim by the actor, whether 3 directly or through clothing. 4 3. "Vulnerable elderly person" means a person sixty years of age or 5 older who is suffering from a disease or infirmity associated with 6 advanced age and manifested by demonstrable physical, mental or 7 emotional dysfunction to the extent that the person is incapable of 8 adequately providing for his or her own health or personal care. 9 4. "Elderly person" means a person sixty years of age or older. 10 5. "Disabled person" means a person who has a physical or mental 11 impairment that substantially limits a major life activity. 12 § 261.05 Crimes against the elderly and disabled; presumption. 13 In any case in which it shall be shown that a person intended to 14 commit a specified offense pursuant to section 485.05 of this chapter, 15 it shall be a rebuttal presumption that the person selected the victim 16 or committed or intended to commit the act or acts constituting the 17 offense in whole or in substantial part because of a belief that such 18 victim is elderly or disabled. 19 § 261.10 Abandonment of an elderly or disabled person. 20 A person is guilty of abandonment of an elderly or disabled person 21 when, being a person legally charged with the care or custody of an 22 elderly or disabled person, he or she deserts such person in any place 23 with intent to wholly abandon him or her. 24 Abandonment of an elderly or disabled person is a class E felony. 25 § 261.15 Abandonment of an elderly or disabled person; defense. 26 In any prosecution for abandonment of an elderly or disabled person, 27 pursuant to section 261.10 of this article, based upon an alleged 28 desertion of an elderly or disabled person with an intent to wholly 29 abandon such an elderly or disabled person, it is an affirmative defense 30 that, with the intent that the elderly or disabled person be safe from 31 physical injury and cared for in an appropriate manner, the defendant 32 left the elderly or disabled person with an appropriate person or in a 33 suitable location and promptly notified an appropriate person of the 34 elderly or disabled person's location. 35 § 261.20 Endangering the welfare of an elderly or disabled person. 36 A person is guilty of endangering the welfare of an elderly or disa- 37 bled person when being a person legally charged with the care or custody 38 of an elderly or disabled person: 39 1. He or she knowingly acts in a manner likely to be injurious to the 40 physical, mental or moral welfare of an elderly or disabled person, or 41 directs or authorizes such an elderly or disabled person, to engage in 42 an occupation involving a substantial risk of danger to his or her life 43 or health; or 44 2. He or she fails or refuses to exercise reasonable diligence in the 45 control of such elderly or disabled person to prevent him or her from 46 physical, mental or moral injury, or from engaging in acts involving a 47 substantial risk of danger to his or her life or health. 48 Endangering the welfare of an elderly or disabled person is a class A 49 misdemeanor. 50 § 261.25 Endangering the welfare of an elderly or disabled person; 51 corroboration. 52 A person shall not be convicted of endangering the welfare of an 53 elderly or disabled person, or of an attempt to commit the same, upon 54 the testimony of a victim who is incapable of consent because of mental 55 defect or mental incapacity as to conduct that constitutes an offense or 56 an attempt to commit an offense referred to in section 130.16 of thisS. 1573 4 1 chapter, without additional evidence sufficient pursuant to section 2 130.16 of this chapter to sustain a conviction of an offense referred to 3 in section 130.16 of this chapter, or of an attempt to commit the same. 4 § 261.30 Endangering the welfare of an elderly or disabled person; 5 defense. 6 In any prosecution for endangering the welfare of an elderly or disa- 7 bled person, pursuant to section 261.20 of this article: 8 1. based upon an alleged failure or refusal to provide proper medical 9 care or treatment to an elderly or disabled person, who is ill, it is an 10 affirmative defense that the elderly or disabled person is a member or 11 adherent of an organized church or religious group the tenets of which 12 prescribe prayer as the principal treatment for illness, and that the 13 elderly or disabled person was treated in accordance with such tenets; 14 or 15 2. based upon an alleged desertion of an elderly or disabled person, 16 it is an affirmative defense that, with the intent that the person be 17 safe from physical injury and cared for in an appropriate manner, the 18 defendant left the person with an appropriate person or in a suitable 19 location and promptly notified an appropriate person of the person's 20 location. 21 § 261.35 Endangering the welfare of a vulnerable elderly person or a 22 disabled person in the second degree. 23 A person is guilty of endangering the welfare of a vulnerable elderly 24 person or a disabled person in the second degree when, being a caregiver 25 for a vulnerable elderly person or a disabled person: 26 1. With intent to cause physical injury to such person, he or she 27 causes such injury to such person; or 28 2. He or she recklessly causes physical injury to such person; or 29 3. With criminal negligence, he or she causes physical injury to such 30 person by means of a deadly weapon or a dangerous instrument; or 31 4. He or she subjects such person to sexual contact without the 32 latter's consent. Lack of consent under this subdivision results from 33 forcible compulsion or incapacity to consent, as those terms are defined 34 in article one hundred thirty of this chapter, or any other circum- 35 stances in which the vulnerable elderly person or disabled person does 36 not expressly or impliedly acquiesce in the caregiver's conduct. 37 In any prosecution under this subdivision in which the victim's 38 alleged lack of consent results solely from incapacity to consent 39 because of the victim's mental disability or mental incapacity, the 40 provisions of section 130.16 of this chapter shall apply. In addition, 41 in any prosecution under this subdivision in which the victim's lack of 42 consent is based solely upon his or her incapacity to consent because he 43 or she was mentally disabled, mentally incapacitated or physically help- 44 less, it is an affirmative defense that the defendant, at the time he or 45 she engaged in the conduct constituting the offense, did not know of the 46 facts or conditions responsible for such incapacity to consent. 47 Endangering the welfare of a vulnerable elderly person or a disabled 48 person in the second degree is a class E felony. 49 § 261.40 Endangering the welfare of a vulnerable elderly person or a 50 disabled person in the first degree. 51 A person is guilty of endangering the welfare of a vulnerable elderly 52 person or a disabled person in the first degree when, being a caregiver 53 for a vulnerable elderly person or disabled person: 54 1. With intent to cause physical injury to such person, he or she 55 causes serious physical injury to such person; or 56 2. He or she recklessly causes serious physical injury to such person.S. 1573 5 1 Endangering the welfare of a vulnerable elderly person or a disabled 2 person in the first degree is a class D felony. 3 § 3. Subdivision 14 of section 120.05 of the penal law, as added by 4 chapter 268 of the laws of 2016, is amended and a new subdivision 15 is 5 added to read as follows: 6 14. With intent to prevent or obstruct a process server, as defined in 7 section eighty-nine-t of the general business law, from performing a 8 lawful duty pursuant to article three of the civil practice law and 9 rules, or intentionally, as retaliation against such a process server 10 for the performance of the process server's duties pursuant to such 11 article, including by means of releasing or failing to control an animal 12 evincing the actor's intent that the animal prevent or obstruct the 13 lawful duty of the process server or as retaliation against the process 14 server, he or she causes physical injury to such process server[.]; or 15 15. Being eighteen years old or more and with intent to cause physical 16 injury to a person sixty years old or older, or to a person who has a 17 physical or mental impairment that substantially limits a major life 18 activity, the defendant causes such injury to such person. 19 § 4. Section 135.30 of the penal law is amended to read as follows: 20 § 135.30 Kidnapping; defense. 21 In any prosecution for kidnapping, it is an affirmative defense that 22 (a) the defendant was a relative of the person abducted, and (b) his or 23 her sole purpose was to assume control of such person. 24 This section shall not apply in the case when the person who is 25 abducted is sixty years old or older, or to a person who has a physical 26 or mental impairment that substantially limits a major life activity, 27 and the kidnapping was done with the intention of compelling such person 28 to transfer an asset to the defendant or to a third party. 29 § 5. Section 135.45 of the penal law is amended by adding a new subdi- 30 vision 3 to read as follows: 31 3. Knowing that he or she has no legal right to do so, he or she takes 32 or entices any person sixty years of age or older, or a person who has a 33 physical or mental impairment that substantially limits a major life 34 activity, from the custody of another person or institution. 35 § 6. Subdivision (g) of section 140.10 of the penal law, as amended by 36 chapter 176 of the laws of 2011, is amended and a new subdivision (h) is 37 added to read as follows: 38 (g) where the property consists of a right-of-way or yard of a rail- 39 road or rapid transit railroad which has been designated and conspicu- 40 ously posted as a no-trespass railroad zone[.]; or 41 (h) which is a dwelling occupied by a person sixty years of age or 42 older, or a person who has a physical or mental impairment that substan- 43 tially limits a major life activity. 44 § 7. Severability. If any provision of this act or the application 45 thereof to any person or circumstances is held to be invalid, the 46 remainder of the act and the application of such provision to other 47 persons or circumstances shall not be affected thereby. 48 § 8. This act shall take effect immediately.
