A06555 Summary:

BILL NOA06555B
 
SAME ASSAME AS S00239-B
 
SPONSORCrespo
 
COSPNSR
 
MLTSPNSR
 
Add Art 4 Title 1 400 - 412, Title 2 420 - 427, Eld L; amd 60.35, 120.05, 135.30, 135.45 & 140.10, add Art 261 261.00 - 261.08, Pen L; add 97-pppp, St Fin L; amd 1809, V & T L; amd 4, Bank L
 
Enacts the Senior Anti-Violence and Enforcement Act (SAVE); establishes a central registry for access to reports of maltreatment of seniors; creates a council on elder abuse; establishes penal provisions regarding offenses against the elderly and disabled.
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A06555 Actions:

BILL NOA06555B
 
03/26/2015referred to aging
05/21/2015amend and recommit to aging
05/21/2015print number 6555a
01/06/2016referred to aging
04/07/2016amend and recommit to aging
04/07/2016print number 6555b
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A06555 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6555B
 
SPONSOR: Crespo
  TITLE OF BILL: An act to amend the elder law, the penal law, the state finance law, the vehicle and traffic law and the banking law, in relation to enacting the senior anti-violence and enforcement act   PURPOSE OR GENERAL IDEA OF THE BILL: Enacts the Senior Anti-Violence and Enforcement Act (SAVE), which will provide new protections for seniors, including mandatory reporting of crimes or abuse and the creation of a statewide abuse registry, estab- lishment of new investigatory procedures, provision for research on senior violence, and establishment of new criminal penalties for crimes against seniors.   SUMMARY OF PROVISIONS: Section 1. Short Title: Creates the Senior Anti-Violence and Enforcement Act (SAVE) Section 2. Amends the Elder law by adding a new article 4. Requires mandatory reporting of abuse and mistreatment of seniors. Establishes a broad definition of abuse and mistreatment that includes not only phys- ical abuse, but also financial, sexual, emotional or psychological abuse, neglect, abandonment, financial or material exploitation, and self-neglect. Creates a new statewide central registry for senior abuse and neglect in the State Office for the Aging (SOFA). Provides for the following mandatory reporters, including health care workers, social workers, mental health professionals, persons employed by or associated with a licensed or registered facility which provides care to seniors, peace and police officers, district attorneys and other law enforcement officials, as well as bankers, financial consultants and others. The bill also allows any person to report. Establishes the State Office for the Aging as the lead agency for senior abuse and neglect, and the designated agencies are established as lead agencies at the local level. Requires each designated. agency to estab- lish a Senior Anti-Violence Services (SAVS) unit. Requires that proce- dures for investigation be established by SOFA, and carried out by the SAVS units, using community teams of local services. Section 3. Amends the Penal Law,- section 60.35, the section heading and subdivision 1. Establishes a mandatory senior anti-violence services fee. Increases fees for various crimes. Section 4. Amends the State Finance Law. Adds a new section 97-1111. Establishes the Senior Anti-Violence Services Account in the joint custody of the State Comptroller and the Commissioner of Taxation and Finance. Provides that monies in such account shall be collected from mandatory fees established by this chapter and shall be made available by appropriation from the legislature, allocated by the Director of the Budget and made available for local assistance services through the State Office for the Aging. Section 5. Amends the Vehicle and Traffic Law, Section 1809. Estab- lishes a mandatory surcharge and crime victim assistance fee for certain driving infractions. Sections 6, 7 8, 9, 10 and 11. Amends the Vehicle and Traffic Law, Section 1809, subdivision 1. Establishes a Senior Anti-Violence Services Fee of $25.00 upon the conviction of a crime under this chapter. Section 12. Amends the Banking Law Section 4, subdivision 3. Provides that no financial institution shall be held liable for reporting instances of suspected abuse or mistreatment of seniors when such reporting is done in good faith. Section 13. Amends the Penal Law by adding a new article 261, Offenses Against the Elderly and Disabled. Makes numerous changes to the penal law and adds new sections dealing with abandonment of an elderly or disabled person, endangering the welfare of an elderly or disabled person and endangering the welfare of an elderly person. Section 14. Amends the Penal Law, section 120.05 by adding a new subdi- vision 13. Creates the new crime of assault in the second degree when a person being eighteen years old or more intends to cause physical injury to a person sixty years old or more. Section 15. Amends the Penal Law, Section 135.30. Kidnapping defense does not apply when the abducted person is sixty years old or more or is a person who has a physical or mental impairment that substantially limits a major life activity, and the kidnapping was done with the intention of compelling such person to transfer an asset to the defend- ant or to a third party. Section 16. Amends the Penal Law, Section 135.45 by adding a new subdi- vision 3. Custodial interference in the second degree when a person who knows that he or she has no right to do so, takes or entices any person sixty years of age or more or a person who has a physical or mental impairment that substantially limits a major life activity, from the custody of another person or institution. Section 17. Amends the Penal Law, Section 140.10 subdivision (g) and adds a new subdivision (h), Criminal Trespass in the third degree. Provides that a person shall be guilty of criminal trespass in the third degree when the person enters a dwelling which is occupied by a person sixty years of age or more or by a person who has a physical or mental impairment that substantially limits a major life activity. Section 18. Severability Clause Section 19. Effective Date   EXISTING LAW: None   JUSTIFICATION: According to the New York State Elder Abuse Prevalence Study which was released during the Elder Abuse Summit held from November 16-18, 2010 in Albany, New York: *There is a dramatic gap between the rate of elder abuse events reported by older New Yorkers and the number of cases referred to and served in the formal elder abuse service system; *The elder abuse prevalence rate in New York State was nearly 24 times greater than the number of cases referred to social services, law enforcement or legal authorities who have the capacity as well as the responsibility to assist older adult victims. *Emotional abuse was the most common form of mistreatment reported by agencies providing data on elder abuse victims. This finding stands in contrast to the results of the Self-Reported Study in which financial exploitation was the most prevalent form of mistreatment. *Applying the prevalence rate to the general population of older New Yorkers, an estimated 268,280 older adults in the state have been victims of at least one form of elder abuse since turning 60. The major findings of the Self-Reported Study include: a total preva- lence rate of 76 per 1,000 older residents of New York State for any form of elder abuse was found; the cumulative prevalence of any form of non-financial elder mistreatment was 46.2 per thousand subjects studied; and, the highest rate of mistreatment occurred for major financial exploitation (theft of money or property, using items without permis- sion, impersonation to get access, forcing or misleading to get items such as money, bank cards, accounts, power of attorney) with a rate of 41 per 1,000 surveyed. New York is one of only eight States in the country that does not require some form of mandatory reporting for elder abuse. Elder abuse takes many forms, and the courts and criminal justice system see it in many contexts: criminal assault, battery, rape or theft; civil fraud or conversion matters; personal injury actions; guardianship or conserva- torship; mental health commitment; special protective proceedings; cases involving health care decisions for an incapacitated patient; and crimi- nal or civil cases regarding institutional care. This bill addresses all of these situations.   LEGISLATIVE HISTORY: 2015: S.239A - Referred to Aging/A.6555 - Referred to Aging 2014: S.720A - Amend and Recommit to Aging/A.133A- Amend and Recommit to Aging 2013: S.720- Reported, Committed to Codes/A.133 - Referred to Aging 2012: S.309-A - Amend and Recommit to Transportation/A.1010-A-Amend and Recommit to Aging 2011: S.309 - Notice of Committee Consideration Requested, Committee Discharged and Committed to Transportation/A.1010 Referred to Aging 2009-2010 5.5582 - Reported and Committed to Codes/A.9078 - Referred to Aging   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: Immediately, with provisions.
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A06555 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6555--B
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 26, 2015
                                       ___________
 
        Introduced by M. of A. CRESPO -- read once and referred to the Committee
          on  Aging  -- committee discharged, bill amended, ordered reprinted as
          amended and recommitted  to  said  committee  --  recommitted  to  the
          Committee  on  Aging  in  accordance  with  Assembly Rule 3, sec. 2 --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee
 
        AN ACT to amend the elder law, the penal law, the state finance law, the
          vehicle  and  traffic law and the banking law, in relation to enacting
          the senior anti-violence and enforcement act
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  This  act  shall be known and may be cited as the "senior
     2  anti-violence and enforcement act" (SAVE).
     3    § 2. The elder law is amended by adding a new article  4  to  read  as
     4  follows:
     5                                  ARTICLE 4
     6                          PROTECTION OF THE ELDERLY
     7                                   TITLE 1
     8                  SENIOR ANTI-VIOLENCE AND ENFORCEMENT ACT;
     9                            REPORTS AND FINDINGS
    10  Section 400. Definitions.
    11          401. Statewide central registry established; requirements.
    12          402. Disposition of reports received by the registry.
    13          403. Availability of reports.
    14          404. Release of information.
    15          405. Unfounded reports.
    16          406. Penalty for unauthorized disclosure.
    17          407. Persons  required  to  report  suspected  senior  abuse  or
    18                 maltreatment.
    19          408. Any person permitted to report.
    20          409. Reporting procedure.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01422-06-6

        A. 6555--B                          2
 
     1          410. Immunity from liability.
     2          411. Penalties for failure to report.
     3          412. Annual reports.
     4    § 400. Definitions. As used in this article:
     5    1. "Senior" means a person sixty years of age or older.
     6    2. "Registry" or "Central registry" means the statewide central regis-
     7  try for senior abuse and neglect in the state office for the aging.
     8    3. "Office" means the state office for the aging.
     9    4. "Council" means the council on elder abuse created pursuant to this
    10  article.
    11    5. "Designated agency" has the same meaning as provided in section two
    12  hundred fourteen of this chapter.
    13    6.  "Local  service"  means those services and agencies that work with
    14  designated agencies as part of the team in investigating allegations  of
    15  abuse of a senior.
    16    7.  "Abused  senior"  means and includes a senior abused in any of the
    17  following manners:
    18    (a) Physical abuse, including the suffering of bodily injury, physical
    19  pain, or impairment resulting from the use of physical force  against  a
    20  senior  by acts including but not limited to striking with or without an
    21  object, hitting, beating, pushing, shoving, shaking, slapping,  kicking,
    22  pinching, and burning, that result in physical signs of impairment or of
    23  being  subjected  to  punishment,  or  signs  of  being restrained, or a
    24  senior's report of being hit, slapped, kicked, or mistreated.
    25    (b) Sexual abuse, including non-consensual sexual contact of any  kind
    26  with  a  senior,  including but not limited to unwanted touching, sexual
    27  assault or battery, rape, sodomy, coerced nudity, and sexually  explicit
    28  photographing,  that  result  in  physical  signs  of  impairments  or a
    29  senior's report of being sexually assaulted or raped.
    30    (c) Emotional or psychological  abuse,  including  the  infliction  of
    31  anguish,  pain,  or distress through verbal or nonverbal acts, including
    32  but not limited to  verbal  assaults,  insults,  threats,  intimidation,
    33  humiliation,  and harassment, infantilizing a senior, isolating a senior
    34  from his or her family, friends,  or  regular  activities,  or  enforced
    35  social  isolation,  the  results  of which may be evinced by impairments
    36  including but not limited to the caregiver's refusal to  allow  visitors
    37  to  see  a senior alone, or changes in the senior's behavior that result
    38  in the senior being emotionally upset or agitated, being extremely with-
    39  drawn and noncommunicative or nonresponsive,  unusual  behavior  usually
    40  attributed to dementia (e.g., sucking, biting, rocking).
    41    (d) Neglect, including the refusal or failure to fulfill any part of a
    42  person's  obligations or duties to a senior, failure of a person who has
    43  fiduciary responsibilities to provide care for a senior or  the  failure
    44  on  the  part  of  an in-home service provider to provide such necessary
    45  care, including the refusal or failure to provide an elderly person with
    46  such life  necessities  as  food,  water,  clothing,  shelter,  personal
    47  hygiene,  medicine,  comfort,  personal  safety,  and  other  essentials
    48  included in an implied or agreed-upon responsibility to such senior, the
    49  results of which may be evinced by such visible physical impairments  as
    50  dehydration,  malnutrition,  untreated  bed  sores,  and  poor  personal
    51  hygiene, unattended or untreated health problems,  hazardous  or  unsafe
    52  living  condition/arrangements, unsanitary and unclean living conditions
    53  (e.g.  dirt, fleas, lice on person, soiled bedding,  fecal/urine  smell,
    54  inadequate clothing).
    55    (e)  Abandonment, including the desertion of a senior by an individual
    56  who has assumed responsibility for providing care for such senior, or by

        A. 6555--B                          3
 
     1  a person with physical custody of a senior, including but not limited to
     2  the desertion of a senior at a hospital, a nursing  facility,  or  other
     3  similar  institution,  or the desertion of a senior at a shopping center
     4  or other public location; or a senior's report of being abandoned.
     5    (f)  Financial  or  material  exploitation,  including  the illegal or
     6  improper use of a senior's funds, property, or assets, including without
     7  limitation cashing a senior's checks without  authorization  or  permis-
     8  sion,  forging  a  senior's  signature,  misusing or stealing a senior's
     9  money or possessions, coercing or deceiving  a  senior  into  signing  a
    10  document  such  as a contract or a will, or improper use of conservator-
    11  ship, guardianship, or power of attorney.
    12    (g) Self-neglect, including the behavior of  an  elderly  person  that
    13  threatens his or her own health or safety through the refusal or failure
    14  to provide himself or herself with adequate food, water, clothing, shel-
    15  ter,  personal  hygiene, medication (when indicated), and safety precau-
    16  tions.
    17    8. "Person legally responsible for a senior" means  and  includes  the
    18  senior's custodian, guardian or any other person responsible formally or
    19  informally for the senior's care at the relevant time, any person acting
    20  with  power of attorney, trustee appointed by a court, or any person who
    21  by consent, contract or legal order acts to arrange the affairs  of  the
    22  senior.
    23    9.  "Subject  of  the  report"  means a person reported to the central
    24  registry as being allegedly responsible for causing the injury, abuse or
    25  maltreatment that has resulted in a senior becoming an abused senior  or
    26  who  allegedly allows such injury, abuse or maltreatment to be inflicted
    27  on such senior and who is:
    28    (a) a person legally responsible for a senior;
    29    (b) a person, including a director, operator, employee, volunteer,  or
    30  contractor,  in  a  public,  private, or not-for-profit entity providing
    31  goods or services to a senior pursuant to a contract or  other  arrange-
    32  ment;
    33    (c) a person related to the senior by consanguinity or affinity; or
    34    (d)  a  person  who  has  gained  access  to  or  control  formally or
    35  informally over a senior's finances,  medication,  living  arrangements,
    36  such that such person may cause a senior to become an abused senior.
    37    10.  "Other  persons named in the report" means persons other than the
    38  subject of the report who are named in a report of senior  abuse.  Other
    39  persons  named  in  the  report  shall  be  limited to the senior who is
    40  reported to the registry, and such senior's guardian, custodian or other
    41  person legally responsible for the senior who has not been named in  the
    42  report  as  allegedly  responsible  for  causing the senior to become an
    43  abused senior.
    44    11. An "unfounded report" means any report made pursuant to this title
    45  which is not an indicated report.
    46    12. An "indicated report" is a report made pursuant to this title  for
    47  which  an  investigation determines that credible evidence exists that a
    48  senior is an abused senior.
    49    13. "Director" means the director of  the  office  for  the  aging  as
    50  described in section two hundred one of this chapter.
    51    §  401.  Statewide  central registry established; requirements. 1. The
    52  director shall establish in the office a statewide central  registry  to
    53  receive, maintain, and provide appropriate access to reports made pursu-
    54  ant to this title concerning the abuse and maltreatment of seniors.
    55    2.  Such  registry  shall be capable of receiving reports by telephone
    56  call, fax, e-mail, and any other forms  of  communication  the  director

        A. 6555--B                          4
 
     1  deems  appropriate,  alleging that a senior has become an abused senior,
     2  of immediately identifying prior reports of abuse involving such  senior
     3  or other persons named in the report, and shall be capable of monitoring
     4  the  provision of services to such senior twenty-four hours a day, seven
     5  days a week. In furtherance of these requirements,
     6    (a) The office shall maintain statewide toll-free telephone voice  and
     7  fax  numbers and an e-mail address which any person, whether mandated by
     8  law or not, may use to contact the registry to report an allegation that
     9  a senior has become an abused senior.
    10    (b) The office  shall  additionally  maintain  an  unlisted  telephone
    11  number,  fax number, e-mail address, and such other communication proto-
    12  cols as the director deems appropriate, which only persons  mandated  by
    13  this chapter may use to report an allegation that a senior has become an
    14  abused senior.
    15    (c)  The office shall assure that the communication protocols required
    16  by this section shall be capable of allowing all persons  authorized  by
    17  this title to determine the existence of prior reports in order to eval-
    18  uate the condition or circumstances of a senior.
    19    3.  Information  maintained  in  the registry shall include but not be
    20  limited to:
    21    (a) the initial date or date of the contact with the registry alleging
    22  that a senior has become an abused senior;
    23    (b) the time and date of the communication of such information to  the
    24  designated  agency,  and the time and date of acknowledgement of receipt
    25  by the designated agency of such information;
    26    (c) all information in the written report required by this title;
    27    (d) a record  of  the  final  disposition  of  the  report,  including
    28  services offered and services accepted;
    29    (e) the plan for rehabilitative treatment;
    30    (f)  names and identifying data, dates and circumstances of any person
    31  requesting or receiving information from the registry; and
    32    (g) any other information the director deems will further the purposes
    33  and intent of this title.
    34    § 402. Disposition of reports received by the registry. 1. The  direc-
    35  tor  shall  establish  in  the  rules  and  regulations to implement the
    36  requirements of this section criteria for determining whether  a  report
    37  could reasonably constitute a report of abuse of a senior. The inability
    38  of  a  person  making a report to identify the alleged perpetrator shall
    39  not constitute a sufficient reason for the registry to reject the  alle-
    40  gation or to fail to transmit the allegation for investigation.
    41    2.  When  an  allegation  reported  to  the  registry could reasonably
    42  constitute a report of abuse of a senior, such allegation shall be tran-
    43  smitted by the fastest means possible by the office  to  the  designated
    44  agency for investigation.
    45    3.  If  the records indicate a previous report concerning a subject of
    46  the report, other persons named in the report or other pertinent  infor-
    47  mation, the designated agency shall be notified of the fact.
    48    4. Irrespective of whether a report reasonably constitutes a report of
    49  abuse of a senior,
    50    (a)  If  a report could reasonably constitute a crime or could reason-
    51  ably be construed as posing an immediate threat to the  senior's  health
    52  or safety, the office shall convey by the most expedient means available
    53  the  information  to  the  appropriate  law enforcement agency, district
    54  attorney or other public official empowered to provide necessary aid  or
    55  assistance.

        A. 6555--B                          5
 
     1    (b) If a report could reasonably constitute institutional neglect of a
     2  senior  in residential care, the office shall convey by the most expedi-
     3  ent means available the information to the state agency responsible  for
     4  the operation or supervision of the residential facility or program and,
     5  in  the  case  of  a  facility operated or certified by an office of the
     6  department of mental hygiene, to the state commission on quality of care
     7  for the mentally disabled, for appropriate action.
     8    5. Reports and records made pursuant  to  this  title,  including  any
     9  previous  report concerning a subject of the report, other persons named
    10  in the report or other  pertinent  information,  involving  seniors  who
    11  reside in a facility licensed or operated by the office of mental health
    12  or the office for people with developmental disabilities, shall be tran-
    13  smitted immediately by the registry to the commission on quality of care
    14  for  the mentally disabled, which shall commence an appropriate investi-
    15  gation in accordance with the mental hygiene law.
    16    § 403. Availability of reports. 1. Reports made pursuant to this title
    17  as well as any other information obtained, including reports written  or
    18  photographs taken concerning such reports which are in the possession of
    19  the  office,  designated  agencies, or the commission on quality of care
    20  for the mentally disabled, shall be confidential and shall only be  made
    21  available to:
    22    (a) a physician who, examining or having examined a senior, reasonably
    23  suspects that such senior may be an abused or maltreated senior;
    24    (b)  a  person authorized to place a senior in protective custody when
    25  such person has before him or her a senior whom  he  or  she  reasonably
    26  suspects  may be an abused or maltreated senior and such person requires
    27  the information to determine whether to place the senior  in  protective
    28  custody;
    29    (c)  a  duly  authorized  agency having responsibility for the care or
    30  supervision of a senior who is reported to the registry;
    31    (d) a person who is the subject of the report or other  persons  named
    32  in the report;
    33    (e)  a  court,  upon  a  finding that the information is necessary for
    34  determination of an issue before the court;
    35    (f) a grand jury, upon a finding that the information is necessary for
    36  determination of charges before the grand jury; and
    37    (g) an appropriate state legislative committee responsible for protec-
    38  tive legislation of seniors.
    39    2. Rules and regulations of the director shall  establish  a  list  of
    40  such  other  persons, agencies, investigative bodies, and auditing enti-
    41  ties that may be given access  to  the  registry,  and  shall  establish
    42  requirements for confidentiality, limitations on re-disclosure of infor-
    43  mation,  and  such  other  requirements  and limitations as the director
    44  shall deem necessary.
    45    3. Any inconsistent  provision  of  any  other  law  to  the  contrary
    46  notwithstanding,  the  director may withhold all or part of any informa-
    47  tion which he or she is authorized to make available to persons or agen-
    48  cies identified in this section or identified by rule and regulation, if
    49  the director determines that such information  is  not  related  to  the
    50  purposes for which such information is requested or that disclosure will
    51  be detrimental to the senior named in the report.
    52    4.  If  a  person or agency identified in this section, or by rule and
    53  regulation of the director, as one to whom access to reports  and  other
    54  information  shall  be  granted,  is  denied such access, such person or
    55  agency may bring a proceeding for review  of  such  denial  pursuant  to
    56  article seventy-eight of the civil practice law and rules.

        A. 6555--B                          6
 
     1    5.  Nothing  contained  in  this  article shall be construed to permit
     2  release, disclosure  or  identification  of  the  names  or  identifying
     3  descriptions  of persons who report suspected abuse or maltreatment of a
     4  senior to the registry or such person's place of employment or with whom
     5  they  have  an  association  other than employment without such person's
     6  written permission except to such persons, officials,  and  agencies  as
     7  the director determines in rule and regulation.
     8    §  404.  Release  of information. 1. Information concerning reports or
     9  investigations may be released to the public only by persons  designated
    10  in  the  rules  and regulations of the director to release such informa-
    11  tion.  Information that may be provided shall be limited to the  follow-
    12  ing:
    13    (a) If a request for information is made prior to the completion of an
    14  investigation  of a report, the released information shall be limited to
    15  whether the report is "indicated", "unfounded" or "under investigation",
    16  as the case may be.
    17    (b) If the request for information is made after the completion of  an
    18  investigation  of a report, the released information shall be limited to
    19  whether the report is "indicated" or "unfounded," as the case may be.
    20    2. Notwithstanding any inconsistent provision of law to the  contrary,
    21  the  director  or  a designated agency director may disclose information
    22  regarding the abuse or maltreatment of a senior as  set  forth  in  this
    23  section,  and the investigation thereof and any services related thereto
    24  if he or she determines that such disclosure shall not  be  contrary  to
    25  the  best  interests of the senior, and any one of the following factors
    26  are present:
    27    (a) the subject of the  report  has  been  charged  in  an  accusatory
    28  instrument with committing a crime related to a report maintained in the
    29  registry; or
    30    (b)  the  investigation of the abuse or maltreatment by the designated
    31  agency or the provision of services by such service  has  been  publicly
    32  disclosed  in  a  report required to be disclosed in the course of their
    33  official duties, by a law enforcement agency  or  official,  a  district
    34  attorney,  any  other state or local investigative agency or official or
    35  by judge of the unified court system; or
    36    (c) there has been a prior knowing, voluntary, public disclosure by an
    37  individual concerning a report of abuse or maltreatment  in  which  such
    38  individual is named as the subject of the report; or
    39    (d)  the senior in the report has died or the report involves the near
    40  fatality of a senior. For the purposes of this section, "near  fatality"
    41  means  an act that results in the senior being placed, as certified by a
    42  physician, in serious or critical condition.
    43    3. For the purposes of this section, the following information may  be
    44  disclosed:
    45    (a) the name of the abused or maltreated senior;
    46    (b)  the  determination  by  the designated agency or the state agency
    47  which investigated the report and the findings of the applicable  inves-
    48  tigating agency upon which such determination was based;
    49    (c) identification of services provided or actions taken regarding the
    50  senior named in the report as a result of any such report or reports;
    51    (d)  whether any report of abuse or maltreatment regarding such senior
    52  has been "indicated" as maintained by the registry;
    53    (e) actions taken by the designated agency in response to  reports  of
    54  abuse  or  maltreatment  to  the  registry  including but not limited to
    55  actions taken after each and every report of abuse  or  maltreatment  of
    56  such senior and the dates of such reports;

        A. 6555--B                          7
 
     1    (f)  whether  the senior has received care or services from the desig-
     2  nated agency prior to each and every report of abuse or maltreatment  of
     3  such senior; and
     4    (g)  any extraordinary or pertinent information concerning the circum-
     5  stances of the abuse or maltreatment of the senior and the investigation
     6  thereof, where the director determines  such  disclosure  is  consistent
     7  with the public interest.
     8    4. Information may be disclosed pursuant to this section as follows:
     9    (a)  information released prior to the completion of the investigation
    10  of a report shall be limited to a statement  that  a  report  is  "under
    11  investigation";
    12    (b)  when  there has been a prior disclosure pursuant to this subdivi-
    13  sion, information released in a  case  in  which  the  report  has  been
    14  unfounded  shall be limited to the statement that "the investigation has
    15  been completed, and the report has been unfounded";
    16    (c) if the  report  has  been  "indicated"  then  information  may  be
    17  released pursuant to subdivision two of this section.
    18    5.  Any  disclosure  of information pursuant to this section shall not
    19  identify or provide an identifying description  of  the  source  of  the
    20  report,  and shall not identify the name of the person legally responsi-
    21  ble for the senior or any other members of the senior's household, other
    22  than the subject of the report.
    23    6. In determining whether disclosure will  be  contrary  to  the  best
    24  interests  of  the  senior, the director or a designated agency director
    25  shall consider the interest in privacy of the senior  and  the  senior's
    26  family  and  the effects which disclosure may have on efforts to provide
    27  services.
    28    7. Whenever a disclosure of  information  is  made  pursuant  to  this
    29  section,  the  designated agency director shall make a written statement
    30  prior to disclosing such information to the chief county executive offi-
    31  cer where the incident occurred setting forth the criteria upon which he
    32  or she is basing such disclosure.
    33    8. Except as it  applies  directly  to  the  cause  of  the  abuse  or
    34  maltreatment  of  the senior, nothing in this section shall be deemed to
    35  authorize the release or disclosure of the substance or content  of  any
    36  psychological,  psychiatric,  therapeutic,  clinical or medical reports,
    37  evaluations or like materials or information pertaining to  such  senior
    38  or  the  senior's  family.  Prior  to  the  release or disclosure of any
    39  psychological, psychiatric or therapeutic reports, evaluations  or  like
    40  materials  or information pursuant to this subdivision, the local social
    41  services director shall consult with the personnel of the department  of
    42  mental hygiene.
    43    §  405.  Unfounded  reports.  1.  Unless  an investigation of a report
    44  conducted pursuant to this  title  determines  that  there  is  credible
    45  evidence of the alleged abuse or maltreatment, all information identify-
    46  ing  the  subjects  of  the report and other persons named in the report
    47  shall be legally sealed by the registry and any designated  agencies  or
    48  the  state agency which investigated the report, and the report shall be
    49  deemed "unfounded". Such unfounded reports may only be unsealed and made
    50  available to such persons and entities as shall be  established  by  the
    51  director  in  rules  and  regulations  for  such purposes as review of a
    52  fatality or investigation of a subsequent report of suspected  abuse  or
    53  maltreatment involving a subject of the unfounded report. Such unfounded
    54  reports  may  be made available to the following persons and entities: a
    55  senior named in the unfounded report; other persons named in the report;
    56  the subject of the report; a district  attorney  or  a  state  or  local

        A. 6555--B                          8

     1  police  officer when such official verifies that the report is necessary
     2  to conduct an active criminal investigation or for prosecution of  elder
     3  abuse;  or  other  persons in keeping with the spirit and intent of this
     4  section  as  shall  be  determined  in  the rules and regulations of the
     5  director required to implement this section.
     6    2. Persons given access to such unfounded reports shall not redisclose
     7  such reports except as necessary to conduct appropriate investigation or
     8  prosecution and shall request of the  court  that  any  copies  of  such
     9  reports  produced  in  any  court  proceedings be redacted to remove the
    10  names of the subjects and other persons named in the reports or that the
    11  court issue an order protecting the names  of  the  subjects  and  other
    12  persons named in the reports from public disclosure.
    13    3. An unfounded report shall not be admissible in a judicial or admin-
    14  istrative  proceeding  or action; provided, however, an unfounded report
    15  may be introduced into evidence:
    16    (a) by the subject of the report where such subject is a respondent in
    17  a judicial proceeding pertaining to the allegation made in  the  report,
    18  or is a plaintiff or petitioner in a civil action or proceeding alleging
    19  the false reporting of senior abuse or maltreatment; or
    20    (b) in a criminal court for the purpose of prosecuting a crime against
    21  a  senior.  Legally sealed unfounded reports shall be expunged ten years
    22  after the receipt of the report. Whenever  the  office  determines  that
    23  there  is some credible evidence of abuse or maltreatment as a result of
    24  an investigation of a report conducted pursuant to  the  mental  hygiene
    25  law,  the  office shall notify the commission on quality of care for the
    26  mentally disabled.
    27    4. Notwithstanding any other provision of law, the office may  in  its
    28  discretion grant a request to expunge an unfounded report where: (a) the
    29  source  of  the  report was convicted of a violation of the penal law in
    30  regard to such report; or (b) the subject of the report  presents  clear
    31  and  convincing  evidence  that  affirmatively refutes the allegation of
    32  abuse or maltreatment; provided however, that the  absence  of  credible
    33  evidence supporting the allegation of abuse or maltreatment shall not be
    34  the  sole  basis  to  expunge  the report. Nothing in this section shall
    35  require the office to conduct  an  administrative  hearing  in  deciding
    36  whether  to  expunge  a  report. The office shall make its determination
    37  upon reviewing the written evidence submitted  by  the  subject  of  the
    38  report  and  any records or information obtained from the state or local
    39  agency which investigated the allegations of abuse or maltreatment.
    40    5. In any case and at any time, the director may amend any record upon
    41  good cause shown and notice to the subjects  of  the  report  and  other
    42  persons named in the report.
    43    6.  At  any time, a subject of a report and other persons named in the
    44  report may receive, upon request, a copy of all information contained in
    45  the registry; provided, however, that  the  director  is  authorized  to
    46  prohibit the release of data that would identify the person who made the
    47  report  or  who  cooperated in a subsequent investigation or the agency,
    48  institution, organization, program or other entity where such person  is
    49  employed  or with which he or she is associated, which he or she reason-
    50  ably finds will be detrimental  to  the  safety  or  interests  of  such
    51  person.
    52    7.  At  any time subsequent to the completion of the investigation but
    53  in no event later than ninety days after the subject of  the  report  is
    54  notified that the report is indicated the subject may request the direc-
    55  tor  to  amend  the record of the report. If the director does not amend
    56  the report in accordance with such request within ninety days of receiv-

        A. 6555--B                          9
 
     1  ing the request, the subject shall have the right  to  a  fair  hearing,
     2  conducted  in accordance with this subdivision, to determine whether the
     3  record of the report in the registry should be amended  on  the  grounds
     4  that it is inaccurate or it is being maintained in a manner inconsistent
     5  with this title.
     6    (a)  If  it  is  determined  after  review  that  there is no credible
     7  evidence in the record to find that the subject committed an act or acts
     8  of senior abuse or maltreatment, the office shall amend  the  record  to
     9  indicate  that  the  report is "unfounded" and notify the subject forth-
    10  with.
    11    (b) If the office does not amend the record in  accordance  with  such
    12  request  and the provisions of this subdivision, the office shall sched-
    13  ule a fair hearing and shall provide notice  of  the  scheduled  hearing
    14  date to the subject, the registry and, as appropriate, to the designated
    15  agency  or the state agency which investigated the report. The burden of
    16  proof in such a hearing shall be on the designated agency or  the  state
    17  agency which investigated the report, as the case may be.
    18    (i)  A court finding of abuse or neglect against the subject in regard
    19  to an allegation contained in the report shall  create  an  irrebuttable
    20  presumption  that  said  allegation  is  substantiated  by some credible
    21  evidence.
    22    (ii) If it is determined at the fair hearing that there is no credible
    23  evidence in the record to find that the subject committed an act or acts
    24  of abuse or maltreatment of a senior, the office shall amend the  record
    25  to  reflect  that such a finding was made at the administrative hearing,
    26  order any designated agency  or  state  agency  which  investigated  the
    27  report  to  similarly  amend its records of the report, and shall notify
    28  the subject forthwith of the determination.
    29    (c) The director or his or her  designated  agent  is  authorized  and
    30  empowered  to  make  any appropriate order respecting the amendment of a
    31  record to make it accurate or consistent with the requirements  of  this
    32  section.
    33    (d)  Should  the office grant the request of the subject of the report
    34  pursuant to this subdivision either through an administrative review  or
    35  fair  hearing  to amend an indicated report to an unfounded report, such
    36  report shall be legally sealed and shall be  released  and  expunged  in
    37  accordance with the standards set forth in this section.
    38    8.  Written notice of any expungement or amendment of any record, made
    39  pursuant to this title, shall be served forthwith upon each  subject  of
    40  such  record,  other persons named in the report, the director, and such
    41  other persons and agencies the  director  shall  deem  appropriate.  The
    42  designated  agency  or  the  state agency which investigated the report,
    43  upon receipt of such notice, shall take the appropriate  similar  action
    44  in  regard to its registry and records and inform, for the same purpose,
    45  any other agency which received such record.
    46    § 406. Penalty for unauthorized disclosure. Unauthorized disclosure by
    47  any party of information obtained from the registry shall be a  class  A
    48  misdemeanor.
    49    §  407. Persons required to report suspected senior abuse or maltreat-
    50  ment. 1. The following persons are required to report or cause a  report
    51  to  be  made  in  accordance with this title when, while acting in their
    52  professional or official capacity, they have reasonable cause to suspect
    53  that a senior coming before them is an abused senior, or when they  have
    54  reasonable  cause to suspect that a senior is an abused senior where the
    55  person legally responsible for such senior comes before them and  states

        A. 6555--B                         10
 
     1  from  personal  knowledge  facts,  conditions or circumstances which, if
     2  correct, would render the senior an abused senior:
     3    (a) any health care worker, including any physician, physician assist-
     4  ant,  surgeon,  medical  examiner,  coroner,  dentist, dental hygienist,
     5  osteopath,  optometrist,  chiropractor,  podiatrist,  resident,  intern,
     6  psychologist,  registered  nurse,  emergency  medical technician, or any
     7  hospital or nursing home personnel engaged in  the  admission,  examina-
     8  tion,  care  or treatment of persons, or any other health care or health
     9  services  practitioner,  including  a  Christian  Science  practitioner,
    10  acupuncturist, or other such person;
    11    (b) any social worker, social services worker, day care center worker,
    12  or any provider of family or group family day care;
    13    (c)  any  mental health professional; substance abuse counselor; alco-
    14  holism counselor;
    15    (d) any person, including a director, operator,  employee,  volunteer,
    16  or  contractor,  in  a public, private, or not-for-profit facility which
    17  provides care to one or more seniors and which is licensed or registered
    18  pursuant to the provisions of the  public  health  law,  or  the  social
    19  services law;
    20    (e)  any peace officer, police officer, district attorney or assistant
    21  district attorney, investigator employed in the  office  of  a  district
    22  attorney or other law enforcement official;
    23    (f)  any  banker,  financial  consultant,  attorney, or paralegal with
    24  access to a senior's financial records or resources or  legal  documents
    25  or who possesses power of attorney for such senior.
    26    The director shall further define and enumerate in regulations persons
    27  and  occupations  which  are required to report when they suspect that a
    28  senior has become an abused senior.
    29    2. A person required to report under this title in his or her capacity
    30  as a member of the staff of a medical or other public or private  insti-
    31  tution, facility or agency shall additionally and immediately notify the
    32  person  in charge of such institution, facility or agency, or his or her
    33  designated agent, who then also shall become responsible  to  report  or
    34  cause  reports to be made, provided however that nothing in this section
    35  shall require more than one report from any such institution or  agency.
    36  At  the  time of making a report, or at any time thereafter, such person
    37  or official may request the findings of an investigation  made  pursuant
    38  to this title.
    39    §  408.  Any  person  permitted  to report. In addition to persons and
    40  officials required to report suspected senior  abuse  pursuant  to  this
    41  chapter, any person may make such a report if such person has reasonable
    42  cause to suspect that a senior is an abused senior.
    43    §  409. Reporting procedure. 1. Reports of suspected abuse made pursu-
    44  ant to this title shall be made immediately by telephone, fax, e-mail or
    45  any other communication protocol on a form  supplied  by  the  director.
    46  Oral reports shall be followed by a report in writing within forty-eight
    47  hours after such oral report.
    48    2.  Written  reports  shall  be  made in a manner prescribed by and on
    49  forms supplied by the director and shall include the following  informa-
    50  tion:
    51    (a) the name and address of the senior;
    52    (b) the person responsible for his or her care, if known;
    53    (c)  the name and address of the care facility or program in which the
    54  senior resides or is receiving care;
    55    (d) the senior's age, sex and race;

        A. 6555--B                         11
 
     1    (e) the nature and extent of  the  injuries,  abuse  or  maltreatment,
     2  including any evidence of prior injuries, abuse or maltreatment;
     3    (f)  the  name  of the person or persons alleged to be responsible for
     4  causing the injury, abuse or maltreatment, if known;
     5    (g) family composition, where appropriate;
     6    (h) the source of the report;
     7    (i) the person making the report and where he or she can be reached;
     8    (j) the actions taken by the reporting source, including the taking of
     9  photographs and technological scans, or notifying the  medical  examiner
    10  or coroner; and
    11    (k)  any  other  information  which  the  director  may  by regulation
    12  require, or which the person making the report believes might  be  help-
    13  ful, in the furtherance of the intent and purposes of this title.
    14    3. Any person or official required to report cases of suspected senior
    15  abuse  and  maltreatment may take or cause to be taken at public expense
    16  photographs or, if medically indicated, other technological  or  imaging
    17  scans including x-rays of the areas of trauma visible on a senior who is
    18  subject  to  a report. Any such photographs or scans taken shall be sent
    19  to the designated agency at the time the written report is sent,  or  as
    20  soon  thereafter  as  possible.  A  person required to report under this
    21  title in his or her capacity as a member of the staff of  a  medical  or
    22  other  public  or  private institution, facility, or agency, shall imme-
    23  diately notify the person in charge of such institution, school, facili-
    24  ty or agency, or the designated agent of such  person,  who  shall  then
    25  take  or  cause  to  be taken at public expense color photographs or, if
    26  medically indicated, other  technological  or  imaging  scans  including
    27  x-rays, of the senior.
    28    4.  Except as otherwise provided in this chapter, written reports from
    29  persons or officials required by this title to report shall be  admissi-
    30  ble in evidence in any proceedings relating to senior abuse or maltreat-
    31  ment.
    32    5.  A  person or official required to report suspected senior abuse or
    33  maltreatment who has reasonable cause to suspect that a senior died as a
    34  result of abuse or maltreatment shall report the fact to the appropriate
    35  medical examiner or coroner.  The  medical  examiner  or  coroner  shall
    36  accept  the report for investigation and shall report his or her finding
    37  to the police, the appropriate district attorney, the local service, the
    38  office, and, if the institution making the report  is  a  hospital,  the
    39  hospital.
    40    §  410.  Immunity  from  liability. A person, official, or institution
    41  participating in good faith in providing of services  pursuant  to  this
    42  title, the making of a report, the taking of photographs, the removal or
    43  keeping  of a senior pursuant to this title, or the disclosure of infor-
    44  mation in compliance with this title and rules and  regulations  promul-
    45  gated thereunder, shall be immune from any liability, civil or criminal,
    46  that  might  otherwise result by reason of such actions. For the purpose
    47  of any proceeding, civil or criminal, the good faith of any such person,
    48  official, or institution required to report cases  of  senior  abuse  or
    49  maltreatment  or  providing  a  service  pursuant to this title shall be
    50  presumed, provided such person, official or institution  was  acting  in
    51  discharge  of their duties and within the scope of their employment, and
    52  that such liability did not result from the willful misconduct or  gross
    53  negligence of such person, official or institution.
    54    § 411. Penalties for failure to report. A person, official or institu-
    55  tion  required  by  this  title  to  report a case of suspected abuse or

        A. 6555--B                         12
 
     1  maltreatment of a senior who willfully fails to do so shall be guilty of
     2  a class A misdemeanor.
     3    Any person, official or institution required by this chapter to report
     4  a case of suspected senior abuse or maltreatment who knowingly and will-
     5  fully fails to do so shall be civilly liable for the damages proximately
     6  caused by such failure.
     7    §  412.  Annual  reports.  The director shall report prior to December
     8  fifteenth of each year on the operations of the registry and the various
     9  designated agencies. The report shall include a full statistical  analy-
    10  sis  of  the  reports made to the registry together with a report on the
    11  implementation of this article, an evaluation of  services  offered  and
    12  recommendations  for  additional  legislation to fulfill the purposes of
    13  this article. Such  report  shall  indicate  the  number  of  abuse  and
    14  maltreatment  reports  and cases received by the registry by each desig-
    15  nated agency in the preceding year, the number of such cases  determined
    16  to  have  been  indicated  and the number of such cases determined to be
    17  unfounded by each district in the preceding year,  the  number  of  such
    18  cases  which have not been indicated or unfounded within the time period
    19  required by this chapter by each designated agency in the preceding year
    20  and the number of workers assigned  to  the  designated  agency  in  the
    21  preceding  year. The report shall also contain data on the protection of
    22  seniors in residential  care  from  abuse  and  maltreatment,  including
    23  reports  received,  results of investigations by types of facilities and
    24  programs, types of corrective action taken, as well as efforts undertak-
    25  en by the office to provide training pursuant to this chapter.
 
    26                                   TITLE 2
    27          DUTIES AND RESPONSIBILITIES OF THE OFFICE AND THE COUNCIL

    28  Section 420. Duties and responsibilities of the office.
    29          421. Council on elder abuse; creation and powers.
    30          422. Cooperation of other agencies.
    31          423. Implementation.
    32          424. Senior anti-violence services responsibilities  and  organ-
    33                 ization.
    34          425. Duties of the SAVS unit.
    35          426. Local and regional fatality review teams.
    36          427. Grants for senior anti-violence projects.
    37    § 420. Duties and responsibilities of the office. The office shall:
    38    1. Encourage the fullest degree of reporting of suspected senior abuse
    39  or   maltreatment  by  conducting  continuing  publicity  and  education
    40  programs for persons and officials who are required to report as well as
    41  other appropriate persons.
    42    2. Provide technical assistance on an ongoing basis, or as needed,  or
    43  upon  request  to designated agencies regarding case planning, provision
    44  of services, and performance or other responsibilities pursuant to  this
    45  title.
    46    3.  Develop  protocols and issue guidelines to assist designated agen-
    47  cies in evaluating and establishing investigative priorities for reports
    48  describing situations or events which  may  pose  a  clear  and  present
    49  danger  to  the  life, health or safety of a senior and/or which require
    50  immediate, personal  contact  between  the  designated  agency  and  the
    51  subject  of  the report, the subject's family, or other persons named in
    52  the report.
    53    4. Issue guidelines to assist designated agencies in  the  interpreta-
    54  tion  and  assessment  of  reports of abuse and maltreatment made to the

        A. 6555--B                         13
 
     1  registry, including information, standards and criteria  for  the  iden-
     2  tification  of  credible  evidence  of  alleged  abuse  and maltreatment
     3  required to determine whether a report may be indicated.
     4    5.  Set  forth requirements for the performance by designated agencies
     5  of the duties  and  powers  imposed  and  conferred  upon  them  by  the
     6  provisions  of this title, including uniform requirements for the inves-
     7  tigation of reports of  abuse  or  maltreatment,  standards  for  inter-
     8  vention, criteria for case closings, criteria for determining whether to
     9  initiate  a  proceeding,  and  criteria for the formulation of treatment
    10  plans and for the delivery of services.
    11    6. Set forth training requirements which shall  specify,  among  other
    12  things,  that all appropriate persons hired by a designated agency shall
    13  have satisfactorily completed within the first  three  months  of  their
    14  employment  a  course approved by the office in the principles and tech-
    15  niques of investigations, relationships with other investigative bodies,
    16  legal issues, and  methods  of  remediation,  diagnosis,  treatment  and
    17  prevention.
    18    7. Take all reasonable and necessary actions to assure that the desig-
    19  nated  agencies  are kept apprised on a current basis of the laws, regu-
    20  lations and policies of the office concerning senior abuse and maltreat-
    21  ment.
    22    8. Monitor and supervise the performance of the local services.
    23    § 421. Council on elder abuse; creation and powers. 1. The council  on
    24  elder  abuse  is  hereby  created  whose  purpose shall be to advise and
    25  consult with the director on the development of programs and initiatives
    26  to combat elder abuse as authorized or required by this title. The coun-
    27  cil shall have power by affirmative vote of a majority of its members to
    28  establish, and from time to time, amend and repeal rules and regulations
    29  required to be promulgated pursuant to this title, subject  to  approval
    30  by the director.
    31    2.  The  council  shall  consist  of  fifteen persons appointed by the
    32  governor by and with the advice and consent of the senate. Four  members
    33  shall  be  appointed on recommendation of the temporary president of the
    34  senate, and four on recommendation of the speaker of the  assembly.  The
    35  governor shall appoint a chairperson and a vice-chairperson as he or she
    36  deems appropriate.
    37    3.  Membership  on  the  council  shall  reflect  the diversity of the
    38  state's population including, but not limited to, the various geographic
    39  areas of the state. Each appointee shall at the time of appointment have
    40  had at least five years experience in the field of elder abuse,  in  law
    41  enforcement,  the  judicial system, the provision of services, medicine,
    42  advocacy, or other similar field that assures  that  the  appointee  has
    43  recognized expertise in the subject area.
    44    4.  Each  appointee shall serve a term of four years, provided that of
    45  members first appointed, eight shall serve for terms of two  years,  and
    46  the  remainder for terms of four years, respectively, from January first
    47  next succeeding their appointment. Any vacancy occurring otherwise  than
    48  by expiration of term shall be filled in the same manner as the original
    49  appointment  for the balance of the unexpired term. Members of the coun-
    50  cil shall continue in office until their successors  are  appointed  and
    51  shall have qualified.
    52    5.  The  council may employ either directly or by contractual arrange-
    53  ment such personnel as it shall deem necessary for  the  performance  of
    54  its  functions, within amounts made available by appropriation therefor.
    55  In addition, the director, on his or  her  initiative  and  through  the
    56  powers  hereby  provided  him or her, may provide the council with up to

        A. 6555--B                         14
 
     1  two loaned officers or employees from the office, along with such admin-
     2  istrative-secretarial support staff as shall be required, the duties and
     3  work of whom are hereby declared to be an essential state purpose.  Such
     4  loaned  employees  shall  suffer  no diminution of their compensation or
     5  benefits as a result of such assignment, provided that no such  transfer
     6  shall  be  made  except with the approval of the director of the budget,
     7  and in compliance with the rules and regulations of  the  civil  service
     8  commission of the state.
     9    6. Members shall receive no salary or other compensation, but shall be
    10  entitled  to reimbursement for actual and necessary expenses incurred in
    11  the performance of official duties. Any other provision of this  or  any
    12  other law to the contrary notwithstanding, no officer or employee of the
    13  state,  or  of  any  civil  division  thereof,  shall  be deemed to have
    14  forfeited or shall forfeit his or her office or employment or any  bene-
    15  fits  provided under the retirement and social security law by reason of
    16  acceptance of membership on the council on elder abuse, provided, howev-
    17  er, that a member who holds such other public office or employment shall
    18  be entitled to reimbursement for actual and necessary expenses  incurred
    19  in  the  performance  of  such  services but shall receive no additional
    20  compensation for services rendered pursuant to this section.
    21    7. Members may engage in private employment, or  in  a  profession  or
    22  business, subject to the limitations contained in sections seventy-three
    23  and  seventy-four of the public officers law. The council on elder abuse
    24  shall, for the purposes of sections seventy-three  and  seventy-four  of
    25  the public officers law, be a "state agency," and its directors shall be
    26  "officers" of the authority for the purposes of such sections.
    27    8.  Eight  members  of  the  council on elder abuse shall constitute a
    28  quorum for transaction of business or the exercise of any power  of  the
    29  council,  and  the  council  shall  have power to act by majority of the
    30  members present at any meeting at which a quorum is in attendance. Noth-
    31  ing contained in this title shall prevent the  members  from  conducting
    32  its  meetings  by  tele-video or teleconference, or by telephone confer-
    33  ence, provided that a quorum shall be physically present.
    34    9. The council shall meet at least four times  each  year,  and  addi-
    35  tionally as frequently as its business may require.
    36    10. The council shall enact and from time to time may amend by-laws in
    37  relation to its meetings and the transaction of its business.
    38    11.  No  civil action shall be brought in any court against any member
    39  of the council for any act done, failure to act, or statement or opinion
    40  made, while discharging duties as a member of the council, and no member
    41  shall be liable for damages in any action if the member shall have acted
    42  in good faith, with reasonable care and upon probable cause.
    43    12. The director shall consult with the council on any matter required
    44  by this title relating to elder abuse, and the  council  shall  consider
    45  any such matter and advise the director thereon. The director shall take
    46  no action required by this title without first consulting with the coun-
    47  cil, provided however that the council's failure to respond within thir-
    48  ty  business  days to any such request for advice and consultation shall
    49  not be deemed an impairment of the director's power, ability, or respon-
    50  sibility to implement provisions of this title.  The  council  may  from
    51  time  to time submit to the director, the governor, and the legislature,
    52  any recommendations it may have relating to elder abuse.
    53    § 422. Cooperation of other agencies. 1. The office and the office  of
    54  children  and  family services are herewith empowered to and shall enter
    55  into a memorandum of understanding to execute the purposes and intent of
    56  this article. Such  memorandum  of  understanding  shall  establish  the

        A. 6555--B                         15
 
     1  office,  designated  agencies, and "SAVS units" (as described in section
     2  four hundred twenty-four of this title) as the lead agencies for  inves-
     3  tigation  of  abuse and maltreatment of seniors, shall assure that adult
     4  protective  services  units  are  an integral part of the local services
     5  teams, shall assure appropriate sharing of information, and insure  that
     6  appropriate amendments are made to local services plans.
     7    2.  To effectuate the purposes of this title, the director may request
     8  and shall receive from offices, boards, bureaus, or  other  agencies  of
     9  the  state, or any of its political subdivisions, or any duly authorized
    10  agency, or any other agency providing services to seniors  such  assist-
    11  ance  and  data  as  will  enable  the office and designated agencies to
    12  fulfill their responsibilities.
    13    3. In relation to an investigation of a report of abuse  or  maltreat-
    14  ment  involving a senior in residential care, such data may include, but
    15  need not be limited to, the case records of the senior who allegedly was
    16  abused or maltreated and any other senior who  allegedly  witnessed  the
    17  abuse  or  maltreatment  and,  consistent  with  appropriate  collective
    18  bargaining agreements and applicable provisions  of  the  civil  service
    19  law,  those  portions  of  the  employment  record of the subject of the
    20  report considered by the subject's employer to be relevant  and  reason-
    21  ably related to the allegations being investigated by the office.
    22    § 423. Implementation. The director, after consultation with the coun-
    23  cil,  shall  establish timelines for completing the requirements of this
    24  title, as follows:
    25    1. Within one year of the effective date of this title,  the  director
    26  shall:
    27    (a)  Establish  planning  protocols for establishment of the statewide
    28  central registry for abuse and neglect;
    29    (b) Establish a training regime for designated agencies and  teams  of
    30  local services;
    31    (c)  Establish  investigatory  protocols  for  designated agencies and
    32  teams of local services;
    33    (d) Establish a website to convey information about senior  abuse  and
    34  maltreatment, and the provisions of this title; and
    35    (e)  Complete  agreements  as  necessary  or required pursuant to this
    36  title with other state, local, and federal agencies regarding the imple-
    37  mentation of the provisions of this title.
    38    2. Within eighteen months of the effective date  of  this  title,  the
    39  director shall:
    40    (a) Promulgate regulations concerning persons who shall have access to
    41  information  and data contained in the registry, and the confidentiality
    42  requirements governing such access.
    43    (b) Promulgate regulations concerning sharing  of  information,  data,
    44  and reports to the registry for investigatory purposes.
    45    (c)  Complete  training  of  designated  agencies  and  teams of local
    46  services in at least fifty percent of the counties of the state.
    47    3. Within two years of the effective date of this title, the  director
    48  shall:
    49    (a) Establish the statewide central registry for abuse and neglect.
    50    (b)  Complete  training  of the designated agencies and teams of local
    51  services.
    52    § 424. Senior anti-violence services  responsibilities  and  organiza-
    53  tion.  1. Every designated agency shall establish a senior anti-violence
    54  service  (SAVS) unit within such agency. The service shall perform those
    55  functions assigned by this title to  it  and  others  that  further  the
    56  purposes of this title.

        A. 6555--B                         16
 
     1    2. Every designated agency shall provide to the SAVS unit any informa-
     2  tion  available  to  it  or  in  its possession which is relevant to the
     3  investigation of a report of abuse or maltreatment of a senior or to the
     4  provision of services, where the confidentiality of such information  is
     5  not expressly protected by law.
     6    3.  The SAVS unit shall have a sufficient staff of persons with suffi-
     7  cient qualifications to fulfill the purposes of this title, organized so
     8  as to maximize the continuity of responsibility,  care  and  service  to
     9  seniors.   A designated agency shall have flexibility in assigning staff
    10  to the SAVS unit provided that such staff has the qualifications and has
    11  received the training required by the office.
    12    4. Consistent with appropriate collective  bargaining  agreements  and
    13  applicable  provisions  of  the civil service law, every SAVS unit shall
    14  establish a procedure to review and  evaluate  the  backgrounds  of  and
    15  information  supplied  by  applicants  for employment.   Such procedures
    16  shall include but not be limited to requirements that the applicant  set
    17  forth  his  or  her  employment history, provide personal and employment
    18  references and relevant experiential and  educational  information,  and
    19  sign  a sworn statement indicating whether the applicant, to the best of
    20  his or her knowledge, has ever been convicted of a crime in  this  state
    21  or any other jurisdiction.
    22    5.  Any other provision of any other law to the contrary notwithstand-
    23  ing, the SAVS unit shall be the lead entity  responsible  for  receiving
    24  and  investigating  reports  of abuse or maltreatment of seniors and for
    25  coordinating services to such seniors.  It may purchase and utilize  the
    26  services  of  any appropriate public or voluntary agency in providing or
    27  arranging for such services.  Services purchased by the SAVS unit pursu-
    28  ant to this title shall be reimbursed by the state to the locality.
    29    6. Each designated agency shall submit to the director, after  consul-
    30  tation  with local law enforcement agencies, the family court and appro-
    31  priate  public  voluntary  agencies  and  after  a  public  hearing,   a
    32  district-wide  senior  anti-violence  enforcement plan, as prescribed by
    33  the director which shall  describe  the  implementation  of  this  title
    34  including  the  organization, staffing, mode of operations and financing
    35  of the SAVS unit as well as the provisions made for purchase of  service
    36  and  inter-agency  relations.   Each designated agency shall prepare and
    37  submit annual implementation reports including  information  related  to
    38  its SAVS unit to the office for its review and approval.
    39    7.  A SAVS unit shall establish a multidisciplinary investigative team
    40  or teams for the purpose of investigating reports of suspected abuse  or
    41  maltreatment  of seniors.  Such multidisciplinary investigative team may
    42  include, but is not limited to, representatives from the  adult  protec-
    43  tive  service, office of the district attorney or local law enforcement,
    44  the medical profession, public health agencies, mental health  agencies,
    45  medical facilities, including hospitals or other appropriate agencies or
    46  institutions  and  personnel  of any existing senior advocacy or service
    47  centers. Notwithstanding any other provision of  law  to  the  contrary,
    48  members  of  a multidisciplinary investigative team may share with other
    49  team members client-identifiable information concerning  the  senior  or
    50  senior's  family  to  facilitate the investigation of suspected abuse or
    51  maltreatment. Nothing herein shall preclude the creation of  multidisci-
    52  plinary  teams  which include more than one designated agency. Each team
    53  shall develop a written protocol for  investigation  of  abuse  and  for
    54  interviewing abuse and maltreatment victims.
    55    8.  A  SAVS  unit  shall plan with other public, private and voluntary
    56  agencies including but not limited  to  health,  mental  health,  aging,

        A. 6555--B                         17
 
     1  legal  and law enforcement agencies, for the purpose of assuring maximum
     2  local  understanding,  coordination  and  cooperative  action   in   the
     3  provision of appropriate services.
     4    §  425.  Duties  of  the  SAVS unit. 1. A SAVS unit shall receive on a
     5  twenty-four hour, seven day a week basis all reports of suspected  abuse
     6  or  maltreatment  of  a  senior in accordance with this title, the local
     7  plan and the regulations of the director, and shall  maintain  and  keep
     8  up-to-date  a  registry  of all cases reported under this title together
     9  with any additional information obtained  and  a  record  of  the  final
    10  disposition of the report, including services offered and accepted.
    11    2.  Upon  receipt  of a written report, the SAVS unit shall transmit a
    12  copy to the state registry, and within seven days after receipt  of  the
    13  initial  report,  shall send a preliminary written report of the initial
    14  investigation, including evaluation and actions taken  or  contemplated,
    15  to  the  registry.  Follow-up reports shall be made at regular intervals
    16  thereafter in a manner and form prescribed by the director by regulation
    17  to the end that the state registry is kept fully informed and up-to-date
    18  concerning the handling of reports.
    19    3. A SAVS unit shall give telephone notice and forward  immediately  a
    20  copy of reports made pursuant to this title which involve the death of a
    21  senior  to  the  appropriate  district  attorney. In addition, telephone
    22  notice shall be given and a copy of any or all reports made pursuant  to
    23  this  title  shall  be forwarded immediately to the appropriate district
    24  attorney if a prior request in writing for such notice  and  copies  has
    25  been  made  to  the  unit  by the district attorney, and if the director
    26  shall approve. Such request  shall  specify  the  kinds  of  allegations
    27  concerning  which  the district attorney requires such notice and copies
    28  and shall provide a copy of the relevant provisions of law.
    29    4. Upon receipt of a report, the SAVS unit  shall  within  twenty-four
    30  hours  commence an investigation of the risk for the senior to remain in
    31  the existing environment, a determination  of  the  nature,  extent  and
    32  cause  of  any  condition enumerated in the report, and, after seeing to
    33  the safety of the senior, notify the subjects of the  report  and  other
    34  persons  named  in  the report in writing of the existence of the report
    35  and each person's respective rights pursuant to this title in regard  to
    36  amendment.
    37    5.  The  SAVS  unit  shall  determine,  within sixty days, whether the
    38  report is "indicated" or "unfounded".
    39    6. The unit shall refer any suspected cases of falsely reporting abuse
    40  and maltreatment of a senior to the appropriate law  enforcement  agency
    41  or district attorney.
    42    7.  The  SAVS  unit  shall take appropriate action to protect a senior
    43  from further  abuse  or  maltreatment,  including  offering  appropriate
    44  services  and  in  cases in which an offer of service is refused and the
    45  SAVS unit determines that the best interests of the senior require court
    46  action, initiate the appropriate proceeding or make a  referral  to  the
    47  appropriate district attorney, or both.
    48    8.  Any designated agency or SAVS unit official authorized or required
    49  to determine the need for and/or provide or arrange for the provision of
    50  services to seniors in accordance with  the  provisions  of  this  title
    51  shall have immunity from any civil liability that might otherwise result
    52  by  reason of providing such services, provided such official was acting
    53  within the scope of employment and in the discharge of official  duties,
    54  and  that  such  liability  did not result from the willful act or gross
    55  negligence of such official or his or her designee.

        A. 6555--B                         18

     1    9. When a SAVS official shall have reason to believe that  a  criminal
     2  offense  has  been  committed  against a senior who has become an abused
     3  senior, the official shall report this information  to  the  appropriate
     4  police  or  sheriff's department and the district attorney's office when
     5  such office has requested such information be reported by a local social
     6  services official or his or her designee.
     7    §  426. Local and regional fatality review teams. 1. A fatality review
     8  team may be established at a local or regional level, with the  approval
     9  of  the office, for the purpose of investigating the death of any senior
    10  in the case of a report made to the registry. Notwithstanding any  other
    11  provision  of  law  to  the  contrary  and to the extent consistent with
    12  federal law, such local or regional  fatality  review  team  shall  have
    13  access  to  those client-identifiable records necessary for the prepara-
    14  tion of the report, as authorized in accordance with this title.
    15    2. A local or regional fatality review  team  must  include  represen-
    16  tatives  from  the local service, the office, the office of the district
    17  attorney or local law enforcement, office of  the  medical  examiner  or
    18  coroner,  and a physician or comparable medical professional. A local or
    19  regional fatality review team  may  also  include  representatives  from
    20  public  health agencies, mental health agencies, and medical facilities,
    21  including hospitals or other appropriate agencies or institutions.
    22    § 427. Grants for senior anti-violence projects. The  director  shall,
    23  within  amounts  appropriated  therefor  from  the  senior anti-violence
    24  services account established pursuant to  section  ninety-seven-pppp  of
    25  the  state finance law, provide grants to local governments and not-for-
    26  profit organizations to:
    27    1. Improve research, data collection,  and  reporting  on  elder/adult
    28  abuse.
    29    2. Implement research and program innovation.
    30    3. Public education.
    31    4. Development of intergovernmental and public-private partnerships to
    32  combat elder abuse.
    33    5.  Research into delivery systems and barriers to access the services
    34  system, data collection and reporting.
    35    6. Protection of victims.
    36    7. Development of  best  and  innovative  practices  in  carrying  out
    37  services.
    38    8.  Review  of  policies  in  order  to better coordinate preventions,
    39  interventions (including prosecution), services and victims'  assistance
    40  for abused, exploited, and neglected elders.
    41    9.  Development  of  a  broad-based,  multidisciplinary  task force or
    42  coalition to examine systemic approaches to responding to elder abuse.
    43    10. Development and implementation  of  a  multidisciplinary  research
    44  agenda to sustain, advance and assess professional training and practice
    45  on adult or elder abuse.
    46    11.  Provide  specialized training to components of the justice system
    47  is essential to better identify cases, improve investigations,  increase
    48  prosecutions,  better serve victims, establish interdisciplinary coordi-
    49  nation, and promote elder abuse and neglect prevention programs.
    50    § 3.  The section heading and subdivision 1 of section  60.35  of  the
    51  penal  law,  as amended by section 1 of part E of chapter 56 of the laws
    52  of 2004, subparagraphs (i), (ii) and (iii) of paragraph (a) of  subdivi-
    53  sion  1  as amended by section 1 of part DD of chapter 56 of the laws of
    54  2008 and paragraph (b) of subdivision 1 as amended by chapter 320 of the
    55  laws of 2006, are amended to read as follows:

        A. 6555--B                         19

     1    Mandatory surcharge, sex offender registration fee, DNA databank  fee,
     2  supplemental  sex offender victim fee [and], crime victim assistance and
     3  a senior anti-violence services fee required in certain cases.
     4    1.  (a)  Except  as  provided  in section eighteen hundred nine of the
     5  vehicle and traffic law and section 27.12 of the parks,  recreation  and
     6  historic  preservation  law,  whenever  proceedings in an administrative
     7  tribunal or a court of this state result in a conviction for a felony, a
     8  misdemeanor, or a violation, as these terms are defined in section 10.00
     9  of this chapter,  there  shall  be  levied  at  sentencing  a  mandatory
    10  surcharge,  sex  offender  registration  fee,  DNA databank fee [and], a
    11  crime victim assistance fee and a senior anti-violence services  fee  in
    12  addition  to  any  sentence  required or permitted by law, in accordance
    13  with the following schedule:
    14    (i) a person convicted of a felony shall pay a mandatory surcharge  of
    15  three  hundred  dollars  [and], a crime victim assistance fee of twenty-
    16  five dollars, and a senior anti-violence services fee of fifty dollars;
    17    (ii) a person  convicted  of  a  misdemeanor  shall  pay  a  mandatory
    18  surcharge  of  one  hundred  seventy-five  dollars [and], a crime victim
    19  assistance fee  of  twenty-five  dollars,  and  a  senior  anti-violence
    20  services fee of fifty dollars;
    21    (iii)  a  person  convicted  of  a  violation  shall  pay  a mandatory
    22  surcharge of ninety-five dollars [and], a crime victim assistance fee of
    23  twenty-five dollars, and a senior anti-violence services  fee  of  fifty
    24  dollars;
    25    (iv) a person convicted of a sex offense as defined by subdivision two
    26  of section one hundred sixty-eight-a of the correction law or a sexually
    27  violent  offense  as defined by subdivision three of section one hundred
    28  sixty-eight-a of the correction law shall, in addition  to  a  mandatory
    29  surcharge  and crime victim assistance fee, pay a sex offender registra-
    30  tion fee of fifty dollars[.], and a senior anti-violence services fee of
    31  fifty dollars;
    32    (v) a person convicted of a designated offense as defined by  subdivi-
    33  sion  seven  of  section  nine  hundred ninety-five of the executive law
    34  shall, in addition to a mandatory surcharge and crime victim  assistance
    35  fee, pay a DNA databank fee of fifty dollars, and a senior anti-violence
    36  services fee of fifty dollars.
    37    (b)  When  the  felony  or  misdemeanor  conviction in [subparagraphs]
    38  subparagraph (i), (ii) or (iv) of  paragraph  (a)  of  this  subdivision
    39  results  from an offense contained in article one hundred thirty of this
    40  chapter, incest in the third, second  or  first  degree  as  defined  in
    41  sections  255.25,  255.26  and  255.27  of  this  chapter  or an offense
    42  contained in article two hundred sixty-three of this chapter, the person
    43  convicted shall pay a supplemental sex offender victim fee of one  thou-
    44  sand  dollars,  and  a senior anti-violence services fee of five hundred
    45  dollars, in addition to the mandatory surcharge and any other fee.
    46    § 4. The state finance law is amended by adding a new section  97-pppp
    47  to read as follows:
    48    §  97-pppp.  Senior anti-violence services account. 1. There is hereby
    49  established in the joint  custody  of  the  state  comptroller  and  the
    50  commissioner  of taxation and finance a special revenue fund to be known
    51  as the "senior anti-violence services account".
    52    2. The senior anti-violence services account shall  consist  of  those
    53  monies  received by the state pursuant to section 60.35 of the penal law
    54  and monies received by the state pursuant to  section  eighteen  hundred
    55  nine  of the vehicle and traffic law from any court of the unified court
    56  system other than town or village courts  and  all  other  fees,  fines,

        A. 6555--B                         20
 
     1  grants,  bequests  or other monies credited, appropriated or transferred
     2  thereto from any other fund or source.
     3    3.  Monies  of  the  senior  anti-violence services account, following
     4  appropriation by the legislature and allocation by the director  of  the
     5  budget  shall  be  made  available  for  local  assistance  services and
     6  expenses of programs to provide senior  anti-violence  services  through
     7  the  state  office  for the aging, as administered pursuant to the elder
     8  law.
     9    § 5. Section 1809 of the vehicle and traffic law, as amended by  chap-
    10  ter  55  of  the  laws of 1992, subdivision 1 as amended by section 2 of
    11  part DD of chapter 56 of the laws of 2008,  the  opening  paragraph  and
    12  paragraph  (c) of subdivision 1 as amended by chapter 222 of the laws of
    13  2015, subdivision 2 as amended by section 6 of part C of chapter  55  of
    14  the laws of 2013, subdivision 3 as amended by chapter 309 of the laws of
    15  1996,  subdivision  5  as  amended  by  chapter 385 of the laws of 1999,
    16  subdivision 8 as amended by section 13 of part B of chapter  55  of  the
    17  laws  of  2015,  subdivision  9 as amended by chapter 452 of the laws of
    18  1999 and subdivision 10 as added by section 3 of part F of chapter 56 of
    19  the laws of 2004, is amended to read as follows:
    20    § 1809. Mandatory surcharge and crime victim assistance  fee  required
    21  in certain cases.  1. Whenever proceedings in an administrative tribunal
    22  or  a  court  of  this state result in a conviction for an offense under
    23  this chapter or a traffic infraction under this chapter, or a local law,
    24  ordinance, rule or regulation adopted pursuant to  this  chapter,  other
    25  than  a  traffic  infraction involving standing, stopping, or parking or
    26  violations by pedestrians or bicyclists, or other than  an  adjudication
    27  of  liability  of an owner for a violation of subdivision (d) of section
    28  eleven hundred eleven of this chapter in accordance with section  eleven
    29  hundred  eleven-a  of  this  chapter,  or  other than an adjudication of
    30  liability of an owner for a violation  of  subdivision  (d)  of  section
    31  eleven  hundred eleven of this chapter in accordance with section eleven
    32  hundred eleven-b of this chapter,  or  other  than  an  adjudication  in
    33  accordance  with  section  eleven hundred eleven-c of this chapter for a
    34  violation of a bus lane restriction as defined in such section, or other
    35  than an adjudication of liability of an owner for a violation of  subdi-
    36  vision  (d)  of section eleven hundred eleven of this chapter in accord-
    37  ance with section eleven hundred eleven-d of this chapter, or other than
    38  an adjudication of liability of an owner for a violation of  subdivision
    39  (b), (c), (d), (f) or (g) of section eleven hundred eighty of this chap-
    40  ter  in accordance with section eleven hundred eighty-b of this chapter,
    41  or other than an adjudication of liability of an owner for  a  violation
    42  of  subdivision  (b),  (c),  (d),  (f)  or (g) of section eleven hundred
    43  eighty of this chapter in accordance with section eleven hundred  eight-
    44  y-c  of  this  chapter, or other than an adjudication of liability of an
    45  owner for a violation of subdivision (d) of section eleven hundred elev-
    46  en of this chapter in accordance with section eleven hundred eleven-e of
    47  this chapter, there shall be levied a crime  victim  assistance  fee,  a
    48  senior  anti-violence  services  fee  of  five  dollars  and a mandatory
    49  surcharge, in addition to any sentence required or permitted by law,  in
    50  accordance with the following schedule:
    51    (a)  Whenever  proceedings in an administrative tribunal or a court of
    52  this state result in a conviction for a traffic infraction  pursuant  to
    53  article  nine  of  this  chapter,  there  shall be levied a crime victim
    54  assistance fee in the amount of five  dollars,  a  senior  anti-violence
    55  services  fee  of five dollars and a mandatory surcharge, in addition to

        A. 6555--B                         21
 
     1  any sentence required or permitted by law, in the amount of  twenty-five
     2  dollars.
     3    (b)  Whenever  proceedings in an administrative tribunal or a court of
     4  this state result in a conviction for a misdemeanor or  felony  pursuant
     5  to  section  eleven  hundred  ninety-two of this chapter, there shall be
     6  levied, in addition to any sentence required  or  permitted  by  law,  a
     7  crime  victim  assistance  fee  in  the amount of twenty-five dollars, a
     8  senior anti-violence services  fee  of  five  dollars  and  a  mandatory
     9  surcharge in accordance with the following schedule:
    10    (i)  a person convicted of a felony shall pay a mandatory surcharge of
    11  three hundred dollars;
    12    (ii) a person  convicted  of  a  misdemeanor  shall  pay  a  mandatory
    13  surcharge of one hundred seventy-five dollars.
    14    (c)  Whenever  proceedings in an administrative tribunal or a court of
    15  this state result in a conviction for  an  offense  under  this  chapter
    16  other than a crime pursuant to section eleven hundred ninety-two of this
    17  chapter,  or  a  traffic  infraction under this chapter, or a local law,
    18  ordinance, rule or regulation adopted pursuant to  this  chapter,  other
    19  than  a  traffic  infraction involving standing, stopping, or parking or
    20  violations by pedestrians or bicyclists, or other than  an  adjudication
    21  of  liability  of an owner for a violation of subdivision (d) of section
    22  eleven hundred eleven of this chapter in accordance with section  eleven
    23  hundred  eleven-a  of  this  chapter,  or  other than an adjudication of
    24  liability of an owner for a violation  of  subdivision  (d)  of  section
    25  eleven  hundred eleven of this chapter in accordance with section eleven
    26  hundred eleven-b of this chapter,  or  other  than  an  adjudication  of
    27  liability  of  an  owner  for  a violation of subdivision (d) of section
    28  eleven hundred eleven of this chapter in accordance with section  eleven
    29  hundred  eleven-d  of this chapter, or other than an infraction pursuant
    30  to article nine of this chapter or other than an adjudication of liabil-
    31  ity of an owner for a violation of toll collection regulations  pursuant
    32  to  section two thousand nine hundred eighty-five of the public authori-
    33  ties law or sections sixteen-a, sixteen-b and sixteen-c of chapter seven
    34  hundred seventy-four of the laws of nineteen hundred fifty or other than
    35  an adjudication in accordance with section eleven  hundred  eleven-c  of
    36  this  chapter  for  a  violation of a bus lane restriction as defined in
    37  such section, or other than an adjudication of liability of an owner for
    38  a violation of subdivision (b), (c), (d), (f) or (g) of  section  eleven
    39  hundred eighty of this chapter in accordance with section eleven hundred
    40  eighty-b  of this chapter, or other than an adjudication of liability of
    41  an owner for a violation of subdivision (b), (c), (d),  (f)  or  (g)  of
    42  section eleven hundred eighty of this chapter in accordance with section
    43  eleven  hundred  eighty-c of this chapter, or other than an adjudication
    44  of liability of an owner for a violation of subdivision (d)  of  section
    45  eleven  hundred eleven of this chapter in accordance with section eleven
    46  hundred eleven-e of this chapter, there shall be levied a  crime  victim
    47  assistance  fee  in  the  amount of five dollars, a senior anti-violence
    48  services fee of five dollars and a mandatory surcharge, in  addition  to
    49  any  sentence  required or permitted by law, in the amount of fifty-five
    50  dollars.
    51    2. Where a person is convicted of two or more such crimes  or  traffic
    52  infractions  committed  through  a single act or omission, or through an
    53  act or omission which in itself constituted one of the crimes or traffic
    54  infractions and also was a material element of the other, the  court  or
    55  administrative tribunal shall impose a crime victim assistance fee and a
    56  mandatory surcharge mandated by subdivision one of this section for each

        A. 6555--B                         22
 
     1  such  conviction;  provided  however,  that  in no event shall the total
     2  amount of such crime victim assistance  fees  and  mandatory  surcharges
     3  imposed  pursuant  to  paragraph  (a)  or (c) of subdivision one of this
     4  section exceed one hundred ninety-six dollars.
     5    3.  The  mandatory  surcharge  provided for in subdivision one of this
     6  section shall be paid to the clerk of the court or administrative tribu-
     7  nal that rendered the conviction. Within the first ten days of the month
     8  following collection of the mandatory surcharge the collecting authority
     9  shall determine the amount of mandatory surcharge collected and,  if  it
    10  is  an  administrative  tribunal  or a town or village justice court, it
    11  shall pay such money to the state comptroller  who  shall  deposit  such
    12  money  in  the state treasury pursuant to section one hundred twenty-one
    13  of the state finance law to the credit of the general  fund.    If  such
    14  collecting  authority is any other court of the unified court system, it
    15  shall, within such period, pay such money to the state  commissioner  of
    16  taxation  and  finance to the credit of the criminal justice improvement
    17  account established by section ninety-seven-bb of the state finance law,
    18  or in the case of the senior anti-violence services fee, to  the  credit
    19  of  the  senior  anti-violence  services account established pursuant to
    20  section ninety-seven-pppp of the state finance law.   The  crime  victim
    21  assistance  fee provided for in subdivision one of this section shall be
    22  paid to the clerk of the court or administrative tribunal that  rendered
    23  the  conviction.  Within  the  first  ten  days  of  the month following
    24  collection of the crime victim assistance fee and the  senior  anti-vio-
    25  lence  services fee, the collecting authority shall determine the amount
    26  of crime victim assistance fee and the senior anti-violence services fee
    27  collected and, if it is an administrative tribunal or a town or  village
    28  justice  court,  it  shall  pay  such money to the state comptroller who
    29  shall deposit such money in the state treasury pursuant to  section  one
    30  hundred  twenty-one of the state finance law to the credit of the crimi-
    31  nal justice improvement account established by  section  ninety-seven-bb
    32  of  the  state  finance  law, or in the case of the senior anti-violence
    33  services fee, to the credit of the senior anti-violence services account
    34  established pursuant to section ninety-seven-pppp of the  state  finance
    35  law.
    36    4.  Any  person  who  has  paid  a mandatory surcharge or crime victim
    37  assistance fee or a senior anti-violence services fee under the authori-
    38  ty of this section which is ultimately determined not to be required  by
    39  this  section  shall be entitled to a refund of such mandatory surcharge
    40  or crime victim assistance fee or senior anti-violence services fee upon
    41  application to  the  state  comptroller.  The  state  comptroller  shall
    42  require  such  proof  as it is necessary in order to determine whether a
    43  refund is required by law.
    44    5. When a person who is convicted of a crime or traffic infraction and
    45  sentenced to a term of imprisonment has  failed  to  pay  the  mandatory
    46  surcharge  or  crime  victim  assistance fee or the senior anti-violence
    47  services fee required by this section, the clerk of  the  court  or  the
    48  administrative  tribunal  that  rendered the conviction shall notify the
    49  superintendent or the municipal  official  of  the  facility  where  the
    50  person  is  confined. The superintendent or the municipal official shall
    51  cause any amount owing to be collected from such person during his  term
    52  of  imprisonment  from  moneys to the credit of an inmates' fund or such
    53  moneys as may be earned by a person in a work release  program  pursuant
    54  to  section eight hundred sixty of the correction law. Such moneys shall
    55  be paid over to the state comptroller to  the  credit  of  the  criminal
    56  justice  improvement  account  established by section ninety-seven-bb of

        A. 6555--B                         23
 
     1  the state finance law, or  in  the  case  of  the  senior  anti-violence
     2  services fee, to the credit of the senior anti-violence services account
     3  established  pursuant  to section ninety-seven-pppp of the state finance
     4  law, except that any such moneys collected which are surcharges or crime
     5  victim  assistance  fees or senior anti-violence services fees levied in
     6  relation to convictions obtained in a  town  or  village  justice  court
     7  shall be paid within thirty days after the receipt thereof by the super-
     8  intendent  or  municipal  official of the facility to the justice of the
     9  court in which the conviction was obtained. For the purposes of collect-
    10  ing such mandatory surcharge or crime victim assistance [fee] or  senior
    11  anti-violence  services fees, the state shall be legally entitled to the
    12  money to the credit of an inmates' fund or money which is earned  by  an
    13  inmate  in a work release program. For purposes of this subdivision, the
    14  term "inmates' fund" shall mean moneys in the possession of an inmate at
    15  the time of his admission into such facility, funds  earned  by  him  as
    16  provided  for  in section one hundred eighty-seven of the correction law
    17  and any other funds received by him or on his behalf and deposited  with
    18  such superintendent or municipal official.
    19    5-a. The provisions of subdivision four-a of section five hundred ten,
    20  subdivision three of section five hundred fourteen and subdivision three
    21  of  section  two  hundred twenty-seven of this chapter governing actions
    22  which may be taken for failure to pay a fine or penalty shall be  appli-
    23  cable  to a mandatory surcharge or crime victim assistance fee or senior
    24  anti-violence services fee imposed pursuant to this section.
    25    6. Notwithstanding any other provision of this section, where a person
    26  has made restitution or reparation pursuant  to  section  60.27  of  the
    27  penal  law,  such  person  shall  not  be  required  to  pay a mandatory
    28  surcharge  or  crime  victim  assistance  fee  or  senior  anti-violence
    29  services fee.
    30    7. Notwithstanding any other provision of this section, where a manda-
    31  tory  surcharge  or  crime victim assistance fee or senior anti-violence
    32  services fee is imposed pursuant to the provisions of section  60.35  of
    33  the  penal law, no mandatory surcharge or crime victim assistance fee or
    34  senior anti-violence services fee  shall  be  imposed  pursuant  to  the
    35  provisions of this section.
    36    8. The provisions of this section shall only apply to offenses commit-
    37  ted on or before September first, two thousand seventeen.
    38    9.  Notwithstanding the provisions of subdivision one of this section,
    39  in the event a proceeding is in a town or village court, the court shall
    40  add an additional five dollars to the surcharges imposed by such  subdi-
    41  vision one of this section.
    42    10.  For  the  purposes of this section, the term conviction means and
    43  includes the conviction of a felony or a misdemeanor for which a  youth-
    44  ful offender finding was substituted and upon such a finding there shall
    45  be levied a mandatory surcharge and a crime victim assistance fee to the
    46  same  extent  and in the same manner and amount provided by this section
    47  for conviction of the felony or misdemeanor, as the  case  may  be,  for
    48  which such youthful offender finding was substituted.
    49    §  6. Subdivision 1 of section 1809 of the vehicle and traffic law, as
    50  amended by section 10-a of chapter 222 of the laws of 2015,  is  amended
    51  to read as follows:
    52    1.  Whenever  proceedings  in an administrative tribunal or a court of
    53  this state result in a conviction for a crime under this  chapter  or  a
    54  traffic  infraction  under this chapter, or a local law, ordinance, rule
    55  or regulation adopted pursuant to this chapter,  other  than  a  traffic
    56  infraction involving standing, stopping, parking or motor vehicle equip-

        A. 6555--B                         24

     1  ment  or violations by pedestrians or bicyclists, or other than an adju-
     2  dication of liability of an owner for a violation of subdivision (d)  of
     3  section eleven hundred eleven of this chapter in accordance with section
     4  eleven  hundred  eleven-a of this chapter, or other than an adjudication
     5  of liability of an owner for a violation of subdivision (d)  of  section
     6  eleven  hundred eleven of this chapter in accordance with section eleven
     7  hundred eleven-b of this chapter,  or  other  than  an  adjudication  in
     8  accordance  with  section  eleven hundred eleven-c of this chapter for a
     9  violation of a bus lane restriction as defined in such section, or other
    10  than an adjudication of liability of an owner for a violation of  subdi-
    11  vision  (d)  of section eleven hundred eleven of this chapter in accord-
    12  ance with section eleven hundred eleven-d of this chapter, or other than
    13  an adjudication of liability of an owner for a violation of  subdivision
    14  (b), (c), (d), (f) or (g) of section eleven hundred eighty of this chap-
    15  ter  in accordance with section eleven hundred eighty-b of this chapter,
    16  or other than an adjudication of liability of an owner for  a  violation
    17  of  subdivision  (b),  (c),  (d),  (f)  or (g) of section eleven hundred
    18  eighty of this chapter in accordance with section eleven hundred  eight-
    19  y-c  of  this  chapter, or other than an adjudication of liability of an
    20  owner for a violation of subdivision (d) of section eleven hundred elev-
    21  en of this chapter in accordance with section eleven hundred eleven-e of
    22  this chapter, there shall be levied a mandatory surcharge,  in  addition
    23  to  any  sentence required or permitted by law, in the amount of twenty-
    24  five dollars and a senior  anti-violence  services  fee  of  twenty-five
    25  dollars.
    26    §  7. Subdivision 1 of section 1809 of the vehicle and traffic law, as
    27  separately amended by section 10-b of chapter 222 of the laws  of  2015,
    28  is amended to read as follows:
    29    1.  Whenever  proceedings  in an administrative tribunal or a court of
    30  this state result in a conviction for a crime under this  chapter  or  a
    31  traffic  infraction  under  this chapter other than a traffic infraction
    32  involving standing, stopping, parking  or  motor  vehicle  equipment  or
    33  violations  by  pedestrians or bicyclists, or other than an adjudication
    34  in accordance with section eleven hundred eleven-c of this chapter for a
    35  violation of a bus lane restriction as defined in such section, or other
    36  than an adjudication of liability of an owner for a violation of  subdi-
    37  vision  (d)  of section eleven hundred eleven of this chapter in accord-
    38  ance with section eleven hundred eleven-d of this chapter, or other than
    39  an adjudication of liability of an owner for a violation of  subdivision
    40  (b), (c), (d), (f) or (g) of section eleven hundred eighty of this chap-
    41  ter  in accordance with section eleven hundred eighty-b of this chapter,
    42  or other than an adjudication of liability of an owner for  a  violation
    43  of  subdivision  (b),  (c),  (d),  (f)  or (g) of section eleven hundred
    44  eighty of this chapter in accordance with section eleven hundred  eight-
    45  y-c  of  this  chapter, or other than an adjudication of liability of an
    46  owner for a violation of subdivision (d) of section eleven hundred elev-
    47  en of this chapter in accordance with section eleven hundred eleven-e of
    48  this chapter, there shall be levied a mandatory surcharge,  in  addition
    49  to any sentence required or permitted by law, in the amount of seventeen
    50  dollars, and a senior anti-violence services fee of twenty-five dollars.
    51    §  8. Subdivision 1 of section 1809 of the vehicle and traffic law, as
    52  separately amended by section 10-c of chapter 222 of the laws  of  2015,
    53  is amended to read as follows:
    54    1.  Whenever  proceedings  in an administrative tribunal or a court of
    55  this state result in a conviction for a crime under this  chapter  or  a
    56  traffic  infraction  under  this chapter other than a traffic infraction

        A. 6555--B                         25
 
     1  involving standing, stopping, parking  or  motor  vehicle  equipment  or
     2  violations  by  pedestrians or bicyclists, or other than an adjudication
     3  of liability of an owner for a violation of subdivision (b),  (c),  (d),
     4  (f)  or  (g) of section eleven hundred eighty of this chapter in accord-
     5  ance with section eleven hundred eighty-b of this chapter, or other than
     6  an adjudication of liability of an owner for a violation of  subdivision
     7  (b), (c), (d), (f) or (g) of section eleven hundred eighty of this chap-
     8  ter  in accordance with section eleven hundred eighty-c of this chapter,
     9  or other than an adjudication of liability of an owner for  a  violation
    10  of  subdivision  (d) of section eleven hundred eleven of this chapter in
    11  accordance with section eleven hundred  eleven-d  of  this  chapter,  or
    12  other  than  an adjudication of liability of an owner for a violation of
    13  subdivision (d) of section eleven hundred  eleven  of  this  chapter  in
    14  accordance  with  section eleven hundred eleven-e of this chapter, there
    15  shall be levied a mandatory  surcharge,  in  addition  to  any  sentence
    16  required  or permitted by law, in the amount of seventeen dollars, and a
    17  senior anti-violence services fee of twenty-five dollars.
    18    § 9. Subdivision 1 of section 1809 of the vehicle and traffic law,  as
    19  separately  amended  by section 10-d of chapter 222 of the laws of 2015,
    20  is amended to read as follows:
    21    1. Whenever proceedings in an administrative tribunal or  a  court  of
    22  this  state  result  in a conviction for a crime under this chapter or a
    23  traffic infraction under this chapter other than  a  traffic  infraction
    24  involving  standing,  stopping,  parking  or  motor vehicle equipment or
    25  violations by pedestrians or bicyclists, or other than  an  adjudication
    26  of  liability  of an owner for a violation of subdivision (b), (c), (d),
    27  (f) or (g) of section eleven hundred eighty of this chapter  in  accord-
    28  ance with section eleven hundred eighty-c of this chapter, or other than
    29  an  adjudication of liability of an owner for a violation of subdivision
    30  (d) of section eleven hundred eleven of this chapter in accordance  with
    31  section  eleven hundred eleven-d of this chapter, or other than an adju-
    32  dication of liability of an owner for a violation of subdivision (d)  of
    33  section eleven hundred eleven of this chapter in accordance with section
    34  eleven  hundred eleven-e of this chapter, there shall be levied a manda-
    35  tory surcharge, in addition to any sentence  required  or  permitted  by
    36  law,  in  the  amount  of  seventeen dollars, and a senior anti-violence
    37  services fee of twenty-five dollars.
    38    § 10. Subdivision 1 of section 1809 of the vehicle and traffic law, as
    39  separately amended by section 10-e of chapter 222 of the laws  of  2015,
    40  is amended to read as follows:
    41    1.  Whenever  proceedings  in an administrative tribunal or a court of
    42  this state result in a conviction for a crime under this  chapter  or  a
    43  traffic  infraction  under  this chapter other than a traffic infraction
    44  involving standing, stopping, parking  or  motor  vehicle  equipment  or
    45  violations  by  pedestrians or bicyclists, or other than an adjudication
    46  of liability of an owner for a violation of subdivision (d)  of  section
    47  eleven  hundred eleven of this chapter in accordance with section eleven
    48  hundred eleven-d of this chapter,  or  other  than  an  adjudication  of
    49  liability  of  an  owner  for  a violation of subdivision (d) of section
    50  eleven hundred eleven of this chapter in accordance with section  eleven
    51  hundred  eleven-e  of  this  chapter,  there shall be levied a mandatory
    52  surcharge, in addition to any sentence required or permitted by law,  in
    53  the amount of seventeen dollars, and a senior anti-violence services fee
    54  of twenty-five dollars.

        A. 6555--B                         26
 
     1    § 11. Subdivision 1 of section 1809 of the vehicle and traffic law, as
     2  amended  by  section 10-f of chapter 222 of the laws of 2015, is amended
     3  to read as follows:
     4    1.  Whenever  proceedings  in an administrative tribunal or a court of
     5  this state result in a conviction for a crime under this  chapter  or  a
     6  traffic  infraction  under  this chapter other than a traffic infraction
     7  involving standing, stopping, parking  or  motor  vehicle  equipment  or
     8  violations  by  pedestrians or bicyclists, or other than an adjudication
     9  of liability of an owner for a violation of subdivision (d)  of  section
    10  eleven  hundred eleven of this chapter in accordance with section eleven
    11  hundred eleven-e of this chapter, there  shall  be  levied  a  mandatory
    12  surcharge,  in addition to any sentence required or permitted by law, in
    13  the amount of seventeen dollars, and a senior anti-violence services fee
    14  of twenty-five dollars.
    15    § 12. Subdivision 3 of section 4 of the banking  law,  as  amended  by
    16  chapter 601 of the laws of 2007, is amended to read as follows:
    17    3.  No  financial  institution which discloses information pursuant to
    18  subdivision two of this section, or discloses any  financial  record  to
    19  the  state  office  of  temporary  and  disability assistance or a child
    20  support enforcement unit of a social services district for  the  purpose
    21  of  enforcing a child support obligation of such person, shall be liable
    22  under any law to any person for such disclosure, or for any other action
    23  taken in good faith to comply with subdivision two of this section.   No
    24  banking  organization  which  reports  instances  of  suspected abuse or
    25  mistreatment of seniors to the state office for  the  aging,  designated
    26  agencies  and  SAVS  units, as such terms are defined in article four of
    27  the elder law, shall be liable under any law  to  any  person  for  such
    28  disclosure,  or  for any other action taken in good faith to comply with
    29  the requirements of such article.
    30    § 13. The penal law is amended by adding a new article 261 to read  as
    31  follows:
 
    32                                 ARTICLE 261
    33                  OFFENSES AGAINST THE ELDERLY AND DISABLED
    34  Section 261.00 Elderly,  vulnerable  elderly and disabled persons; defi-
    35                   nitions.
    36          261.01 Crimes against the elderly and disabled; presumption.
    37          261.02 Abandonment of an elderly or disabled person.
    38          261.03 Abandonment of an elderly or disabled person; defense.
    39          261.04 Endangering the welfare of an elderly or disabled person.
    40          261.05 Endangering the welfare of an elderly or disabled person;
    41                   corroboration.
    42          261.06 Endangering the welfare of an elderly or disabled person;
    43                   defense.
    44          261.07 Endangering the welfare of a vulnerable elderly person or
    45                   a disabled person in the second degree.
    46          261.08 Endangering the welfare of a vulnerable elderly person or
    47                   a disabled person in the first degree.
 
    48  § 261.00 Elderly, vulnerable elderly and disabled persons; definitions.
    49    For the purpose of  this  article,  the  following  definitions  shall
    50  apply:
    51    1.  "Caregiver"  means a person who (i) assumes responsibility for the
    52  care of a vulnerable elderly person pursuant to a court order;  or  (ii)
    53  receives monetary or other valuable consideration for providing care for
    54  a vulnerable elderly person.

        A. 6555--B                         27
 
     1    2. "Sexual contact" means any touching of the sexual or other intimate
     2  parts of a person not married to the actor for the purpose of gratifying
     3  sexual desire of either party.  It includes the touching of the actor by
     4  the  victim, as well as the touching of the victim by the actor, whether
     5  directly or through clothing.
     6    3.  "Vulnerable  elderly  person" means a person sixty years of age or
     7  older who is suffering from  a  disease  or  infirmity  associated  with
     8  advanced   age  and  manifested  by  demonstrable  physical,  mental  or
     9  emotional dysfunction to the extent that  the  person  is  incapable  of
    10  adequately providing for his or her own health or personal care.
    11    4. "Elderly person" means a person sixty years of age or older.
    12    5.  "Disabled  person"  means  a  person  who has a physical or mental
    13  impairment that substantially limits a major life activity.
    14  § 261.01 Crimes against the elderly and disabled; presumption.
    15    In any case in which it shall be  shown  that  a  person  intended  to
    16  commit  a  specified offense pursuant to section 485.05 of this chapter,
    17  it shall be a rebuttal presumption that the person selected  the  victim
    18  or  committed  or  intended  to  commit the act or acts constituting the
    19  offense in whole or in substantial part because of a  belief  that  such
    20  victim is elderly or disabled.
    21  § 261.02 Abandonment of an elderly or disabled person.
    22    A  person  is  guilty  of abandonment of an elderly or disabled person
    23  when, being a person legally charged with the  care  or  custody  of  an
    24  elderly  or  disabled person, he or she deserts such person in any place
    25  with intent to wholly abandon him or her.
    26    Abandonment of an elderly or disabled person is a class E felony.
    27  § 261.03 Abandonment of an elderly or disabled person; defense.
    28    In any prosecution for abandonment of an elderly or  disabled  person,
    29  pursuant  to  section  261.02  of  this  article,  based upon an alleged
    30  desertion of an elderly or disabled person  with  an  intent  to  wholly
    31  abandon such an elderly or disabled person, it is an affirmative defense
    32  that,  with  the intent that the elderly or disabled person be safe from
    33  physical injury and cared for in an appropriate  manner,  the  defendant
    34  left  the  elderly or disabled person with an appropriate person or in a
    35  suitable location and promptly notified an  appropriate  person  of  the
    36  elderly or disabled person's location.
    37  § 261.04 Endangering the welfare of an elderly or disabled person.
    38    A  person  is guilty of endangering the welfare of an elderly or disa-
    39  bled person when being a person legally charged with the care or custody
    40  of an elderly or disabled person:
    41    1. He or she knowingly acts in a manner likely to be injurious to  the
    42  physical,  mental  or moral welfare of an elderly or disabled person, or
    43  directs or authorizes such an elderly or disabled person, to  engage  in
    44  an  occupation involving a substantial risk of danger to his or her life
    45  or health; or
    46    2. He or she fails or refuses to exercise reasonable diligence in  the
    47  control  of  such  elderly or disabled person to prevent him or her from
    48  physical, mental or moral injury, or from engaging in acts  involving  a
    49  substantial risk of danger to his or her life or health.
    50    Endangering  the welfare of an elderly or disabled person is a class A
    51  misdemeanor.
    52  § 261.05 Endangering the welfare  of  an  elderly  or  disabled  person;
    53             corroboration.
    54    A  person  shall  not  be  convicted  of endangering the welfare of an
    55  elderly or disabled person, or of an attempt to commit  the  same,  upon
    56  the  testimony of a victim who is incapable of consent because of mental

        A. 6555--B                         28
 
     1  defect or mental incapacity as to conduct that constitutes an offense or
     2  an attempt to commit an offense referred to in section  130.16  of  this
     3  chapter,  without  additional  evidence  sufficient  pursuant to section
     4  130.16 of this chapter to sustain a conviction of an offense referred to
     5  in section 130.16 of this chapter, or of an attempt to commit the same.
     6  §  261.06 Endangering  the  welfare  of  an  elderly or disabled person;
     7             defense.
     8    In any prosecution for endangering the welfare of an elderly or  disa-
     9  bled person, pursuant to section 261.04 of this article:
    10    1.  based upon an alleged failure or refusal to provide proper medical
    11  care or treatment to an elderly or disabled person, who is ill, it is an
    12  affirmative defense that the elderly or disabled person is a  member  or
    13  adherent  of  an organized church or religious group the tenets of which
    14  prescribe prayer as the principal treatment for illness,  and  that  the
    15  elderly  or  disabled person was treated in accordance with such tenets;
    16  or
    17    2. based upon an alleged desertion of an elderly or  disabled  person,
    18  it  is  an  affirmative defense that, with the intent that the person be
    19  safe from physical injury and cared for in an  appropriate  manner,  the
    20  defendant  left  the  person with an appropriate person or in a suitable
    21  location and promptly notified an appropriate  person  of  the  person's
    22  location.
    23  §  261.07 Endangering  the  welfare  of a vulnerable elderly person or a
    24             disabled person in the second degree.
    25    A person is guilty of endangering the welfare of a vulnerable  elderly
    26  person or a disabled person in the second degree when, being a caregiver
    27  for a vulnerable elderly person or a disabled person:
    28    1.  With  intent  to  cause  physical injury to such person, he or she
    29  causes such injury to such person; or
    30    2. He or she recklessly causes physical injury to such person; or
    31    3. With criminal negligence, he or she causes physical injury to  such
    32  person by means of a deadly weapon or a dangerous instrument; or
    33    4.  He  or  she  subjects  such  person  to sexual contact without the
    34  latter's consent. Lack of consent under this  subdivision  results  from
    35  forcible compulsion or incapacity to consent, as those terms are defined
    36  in  article  one  hundred  thirty  of this chapter, or any other circum-
    37  stances in which the vulnerable elderly person or disabled  person  does
    38  not expressly or impliedly acquiesce in the caregiver's conduct.
    39    In  any  prosecution  under  this  subdivision  in  which the victim's
    40  alleged lack of  consent  results  solely  from  incapacity  to  consent
    41  because  of  the  victim's  mental  disability or mental incapacity, the
    42  provisions of section 130.16 of this chapter shall apply.  In  addition,
    43  in  any prosecution under this subdivision in which the victim's lack of
    44  consent is based solely upon his or her incapacity to consent because he
    45  or she was mentally disabled, mentally incapacitated or physically help-
    46  less, it is an affirmative defense that the defendant, at the time he or
    47  she engaged in the conduct constituting the offense, did not know of the
    48  facts or conditions responsible for such incapacity to consent.
    49    Endangering the welfare of a vulnerable elderly person or  a  disabled
    50  person in the second degree is a class E felony.
    51  §  261.08  Endangering  the  welfare of a vulnerable elderly person or a
    52             disabled person in the first degree.
    53    A person is guilty of endangering the welfare of a vulnerable  elderly
    54  person  or a disabled person in the first degree when, being a caregiver
    55  for a vulnerable elderly person or disabled person:

        A. 6555--B                         29
 
     1    1. With intent to cause physical injury to  such  person,  he  or  she
     2  causes serious physical injury to such person; or
     3    2. He or she recklessly causes serious physical injury to such person.
     4    Endangering  the  welfare of a vulnerable elderly person or a disabled
     5  person in the first degree is a class D felony.
     6    § 14. Section 120.05 of the penal law  is  amended  by  adding  a  new
     7  subdivision 14 to read as follows:
     8    14. Being eighteen years old or more and with intent to cause physical
     9  injury  to  a  person  sixty years old or more, or to a person who has a
    10  physical or mental impairment that substantially  limits  a  major  life
    11  activity, the defendant causes such injury to such person.
    12    § 15. Section 135.30 of the penal law is amended to read as follows:
    13  § 135.30 Kidnapping; defense.
    14    In  any  prosecution for kidnapping, it is an affirmative defense that
    15  (a) the defendant was a relative of the person abducted, and (b) his  or
    16  her sole purpose was to assume control of such person.
    17    This  section  shall  not  apply  in  the  case when the person who is
    18  abducted is sixty years old or more, or to a person who has  a  physical
    19  or  mental  impairment  that substantially limits a major life activity,
    20  and the kidnapping was done with the intention of compelling such person
    21  to transfer an asset to the defendant or to a third party.
    22    § 16. Section 135.45 of the penal law  is  amended  by  adding  a  new
    23  subdivision 3 to read as follows:
    24    3. Knowing that he or she has no legal right to do so, he or she takes
    25  or  entices any person sixty years of age or more, or a person who has a
    26  physical or mental impairment that substantially  limits  a  major  life
    27  activity, from the custody of another person or institution.
    28    §  17.  Subdivision (g) of section 140.10 of the penal law, as amended
    29  by chapter 176 of the laws of 2011, is amended and a new subdivision (h)
    30  is added to read as follows:
    31    (g) where the property consists of a right-of-way or yard of  a  rail-
    32  road  or  rapid transit railroad which has been designated and conspicu-
    33  ously posted as a no-trespass railroad zone[.]; or
    34    (h) which is a dwelling occupied by a person sixty  years  of  age  or
    35  older, or a person who has a physical or mental impairment that substan-
    36  tially limits a major life activity.
    37    §  18.  Severability.  If any provision of this act or the application
    38  thereof to any person or  circumstances  is  held  to  be  invalid,  the
    39  remainder  of  the  act  and  the application of such provision to other
    40  persons or circumstances shall not be affected thereby.
    41    § 19. This act shall take effect immediately; provided, however:
    42    (a) the amendments to subdivision 1 of section 1809 of the vehicle and
    43  traffic law made by section five of this act shall not affect the  expi-
    44  ration  and  reversion of such subdivision and shall be deemed to expire
    45  therewith, when upon such date the provisions of section six of this act
    46  shall take effect;
    47    (b) the amendments to subdivision 1 of section 1809 of the vehicle and
    48  traffic law made by section six of this act shall not affect the expira-
    49  tion and reversion of such subdivision and shall  be  deemed  to  expire
    50  therewith,  when  upon such date the provisions of section seven of this
    51  act shall take effect;
    52    (c) the amendments to subdivision 1 of section 1809 of the vehicle and
    53  traffic law made by section seven of this act shall not affect the expi-
    54  ration and reversion of such subdivision and shall be deemed  to  expire
    55  therewith,  when  upon such date the provisions of section eight of this
    56  act shall take effect;

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     1    (d) the amendments to subdivision 1 of section 1809 of the vehicle and
     2  traffic law made by section eight of this act shall not affect the expi-
     3  ration and reversion of such subdivision and shall be deemed  to  expire
     4  therewith,  when  upon  such date the provisions of section nine of this
     5  act shall take effect;
     6    (e) the amendments to subdivision 1 of section 1809 of the vehicle and
     7  traffic  law made by section nine of this act shall not affect the expi-
     8  ration and reversion of such subdivision and shall be deemed  to  expire
     9  therewith, when upon such date the provisions of section ten of this act
    10  shall take effect;
    11    (f) the amendments to subdivision 1 of section 1809 of the vehicle and
    12  traffic law made by section ten of this act shall not affect the expira-
    13  tion  and  reversion  of  such subdivision and shall be deemed to expire
    14  therewith, when upon such date the provisions of section eleven of  this
    15  act shall take effect; and
    16    (g) the amendments to subdivision 2 of section 1809 of the vehicle and
    17  traffic  law made by section five of this act shall not affect the expi-
    18  ration of such section and shall be deemed to expire therewith.
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