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A06059 Summary:

BILL NO    A06059 

SAME AS    SAME AS S03646

SPONSOR    Jaffee

COSPNSR    

MLTSPNSR   

Amd SS60.35, 120.05, 135.30, 135.45 & 140.10, add Art 261 SS261.00 - 261.40,
Pen L

Establishes criminal offenses committed against the elderly or disabled
persons.
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A06059 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         6059

                              2015-2016 Regular Sessions

                                 I N  A S S E M B L Y

                                    March 11, 2015
                                      ___________

       Introduced by M. of A. JAFFEE -- read once and referred to the Committee
         on Codes

       AN ACT to amend the penal law, establishing a mandatory senior anti-vio-
         lence  services  fee imposed upon conviction of a criminal offense and
         offenses against the elderly and disabled

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section  1.  The section heading and subdivision 1 of section 60.35 of
    2  the penal law, as amended by section 1 of part E of chapter  56  of  the
    3  laws  of  2004,  subparagraphs  (i),  (ii) and (iii) of paragraph (a) of
    4  subdivision 1 as amended by section 1 of part DD of chapter  56  of  the
    5  laws  of  2008  and paragraph (b) of subdivision 1 as amended by chapter
    6  320 of the laws of 2006, are amended to read as follows:
    7    Mandatory surcharge, sex offender registration fee, DNA databank  fee,
    8  supplemental  sex offender victim fee [and], crime victim assistance AND
    9  A SENIOR ANTI-VIOLENCE SERVICES fee required in certain cases.
   10    1. (a) Except as provided in section  eighteen  hundred  nine  of  the
   11  vehicle  and  traffic law and section 27.12 of the parks, recreation and
   12  historic preservation law, whenever  proceedings  in  an  administrative
   13  tribunal or a court of this state result in a conviction for a felony, a
   14  misdemeanor, or a violation, as these terms are defined in section 10.00
   15  of  this  chapter,  there  shall  be  levied  at  sentencing a mandatory
   16  surcharge, sex offender registration fee,  DNA  databank  fee  [and],  a
   17  crime  victim  assistance fee AND A SENIOR ANTI-VIOLENCE SERVICES FEE in
   18  addition to any sentence required or permitted  by  law,  in  accordance
   19  with the following schedule:
   20    (i)  a person convicted of a felony shall pay a mandatory surcharge of
   21  three hundred dollars [and], a crime victim assistance  fee  of  twenty-
   22  five dollars, AND A SENIOR ANTI-VIOLENCE SERVICES FEE OF FIFTY DOLLARS;
   23    (ii)  a  person  convicted  of  a  misdemeanor  shall  pay a mandatory
   24  surcharge of one hundred seventy-five  dollars  [and],  a  crime  victim

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06468-01-5
       A. 6059                             2

    1  assistance  fee  of  twenty-five  dollars,  AND  A  SENIOR ANTI-VIOLENCE
    2  SERVICES FEE OF FIFTY DOLLARS;
    3    (iii)  a  person  convicted  of  a  violation  shall  pay  a mandatory
    4  surcharge of ninety-five dollars [and], a crime victim assistance fee of
    5  twenty-five dollars, AND A SENIOR ANTI-VIOLENCE SERVICES  FEE  OF  FIFTY
    6  DOLLARS;
    7    (iv) a person convicted of a sex offense as defined by subdivision two
    8  of section one hundred sixty-eight-a of the correction law or a sexually
    9  violent  offense  as defined by subdivision three of section one hundred
   10  sixty-eight-a of the correction law shall, in addition  to  a  mandatory
   11  surcharge  and crime victim assistance fee, pay a sex offender registra-
   12  tion fee of fifty dollars[.], AND A SENIOR ANTI-VIOLENCE SERVICES FEE OF
   13  FIFTY DOLLARS;
   14    (v) a person convicted of a designated offense as defined by  subdivi-
   15  sion  seven  of  section  nine  hundred ninety-five of the executive law
   16  shall, in addition to a mandatory surcharge and crime victim  assistance
   17  fee, pay a DNA databank fee of fifty dollars, AND A SENIOR ANTI-VIOLENCE
   18  SERVICES FEE OF FIFTY DOLLARS.
   19    (b)  When  the  felony  or  misdemeanor  conviction in [subparagraphs]
   20  SUBPARAGRAPH (i), (ii) or (iv) of  paragraph  (a)  of  this  subdivision
   21  results  from an offense contained in article one hundred thirty of this
   22  chapter, incest in the third, second  or  first  degree  as  defined  in
   23  sections  255.25,  255.26  and  255.27  of  this  chapter  or an offense
   24  contained in article two hundred sixty-three of this chapter, the person
   25  convicted shall pay a supplemental sex offender victim fee of one  thou-
   26  sand  dollars,  AND  A SENIOR ANTI-VIOLENCE SERVICES FEE OF FIVE HUNDRED
   27  DOLLARS, in addition to the mandatory surcharge and any other fee.
   28    S 2. The penal law is amended by adding a new article 261 to  read  as
   29  follows:

   30                                 ARTICLE 261
   31                  OFFENSES AGAINST THE ELDERLY AND DISABLED
   32  SECTION 261.00 ELDERLY,  VULNERABLE  ELDERLY AND DISABLED PERSONS; DEFI-
   33                   NITIONS.
   34          261.05 CRIMES AGAINST THE ELDERLY AND DISABLED; PRESUMPTION.
   35          261.10 ABANDONMENT OF AN ELDERLY OR DISABLED PERSON.
   36          261.15 ABANDONMENT OF AN ELDERLY OR DISABLED PERSON; DEFENSE.
   37          261.20 ENDANGERING THE WELFARE OF AN ELDERLY OR DISABLED PERSON.
   38          261.25 ENDANGERING THE WELFARE OF AN ELDERLY OR DISABLED PERSON;
   39                   CORROBORATION.
   40          261.30 ENDANGERING THE WELFARE OF AN ELDERLY OR DISABLED PERSON;
   41                   DEFENSE.
   42          261.35 ENDANGERING THE WELFARE OF A VULNERABLE ELDERLY PERSON OR
   43                   A DISABLED PERSON IN THE SECOND DEGREE.
   44          261.40 ENDANGERING THE WELFARE OF A VULNERABLE ELDERLY PERSON OR
   45                   A DISABLED PERSON IN THE FIRST DEGREE.

   46  S 261.00 ELDERLY, VULNERABLE ELDERLY AND DISABLED PERSONS; DEFINITIONS.
   47    FOR THE PURPOSE OF  THIS  ARTICLE,  THE  FOLLOWING  DEFINITIONS  SHALL
   48  APPLY:
   49    1.  "CAREGIVER"  MEANS A PERSON WHO (A) ASSUMES RESPONSIBILITY FOR THE
   50  CARE OF A VULNERABLE ELDERLY PERSON PURSUANT TO A COURT  ORDER;  OR  (B)
   51  RECEIVES MONETARY OR OTHER VALUABLE CONSIDERATION FOR PROVIDING CARE FOR
   52  A VULNERABLE ELDERLY PERSON.
   53    2. "SEXUAL CONTACT" MEANS ANY TOUCHING OF THE SEXUAL OR OTHER INTIMATE
   54  PARTS OF A PERSON NOT MARRIED TO THE ACTOR FOR THE PURPOSE OF GRATIFYING
       A. 6059                             3

    1  SEXUAL DESIRE OF EITHER PARTY.  IT INCLUDES THE TOUCHING OF THE ACTOR BY
    2  THE  VICTIM, AS WELL AS THE TOUCHING OF THE VICTIM BY THE ACTOR, WHETHER
    3  DIRECTLY OR THROUGH CLOTHING.
    4    3.  "VULNERABLE  ELDERLY  PERSON" MEANS A PERSON SIXTY YEARS OF AGE OR
    5  OLDER WHO IS SUFFERING FROM  A  DISEASE  OR  INFIRMITY  ASSOCIATED  WITH
    6  ADVANCED   AGE  AND  MANIFESTED  BY  DEMONSTRABLE  PHYSICAL,  MENTAL  OR
    7  EMOTIONAL DYSFUNCTION TO THE EXTENT THAT  THE  PERSON  IS  INCAPABLE  OF
    8  ADEQUATELY PROVIDING FOR HIS OR HER OWN HEALTH OR PERSONAL CARE.
    9    4. "ELDERLY PERSON" MEANS A PERSON SIXTY YEARS OF AGE OR OLDER.
   10    5.  "DISABLED  PERSON"  MEANS  A  PERSON  WHO HAS A PHYSICAL OR MENTAL
   11  IMPAIRMENT THAT SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY.
   12  S 261.05 CRIMES AGAINST THE ELDERLY AND DISABLED; PRESUMPTION.
   13    IN ANY CASE IN WHICH IT SHALL BE  SHOWN  THAT  A  PERSON  INTENDED  TO
   14  COMMIT  A  SPECIFIED OFFENSE PURSUANT TO SECTION 485.05 OF THIS CHAPTER,
   15  IT SHALL BE A REBUTTAL PRESUMPTION THAT THE PERSON SELECTED  THE  VICTIM
   16  OR  COMMITTED  OR  INTENDED  TO  COMMIT THE ACT OR ACTS CONSTITUTING THE
   17  OFFENSE IN WHOLE OR IN SUBSTANTIAL PART BECAUSE OF A  BELIEF  THAT  SUCH
   18  VICTIM IS ELDERLY OR DISABLED.
   19  S 261.10 ABANDONMENT OF AN ELDERLY OR DISABLED PERSON.
   20    A  PERSON  IS  GUILTY  OF ABANDONMENT OF AN ELDERLY OR DISABLED PERSON
   21  WHEN, BEING A PERSON LEGALLY CHARGED WITH THE  CARE  OR  CUSTODY  OF  AN
   22  ELDERLY  OR  DISABLED PERSON, HE OR SHE DESERTS SUCH PERSON IN ANY PLACE
   23  WITH INTENT TO WHOLLY ABANDON HIM OR HER.
   24    ABANDONMENT OF AN ELDERLY OR DISABLED PERSON IS A CLASS E FELONY.
   25  S 261.15 ABANDONMENT OF AN ELDERLY OR DISABLED PERSON; DEFENSE.
   26    IN ANY PROSECUTION FOR ABANDONMENT OF AN ELDERLY OR  DISABLED  PERSON,
   27  PURSUANT  TO  SECTION  261.10  OF  THIS  ARTICLE,  BASED UPON AN ALLEGED
   28  DESERTION OF AN ELDERLY OR DISABLED PERSON  WITH  AN  INTENT  TO  WHOLLY
   29  ABANDON SUCH AN ELDERLY OR DISABLED PERSON, IT IS AN AFFIRMATIVE DEFENSE
   30  THAT,  WITH  THE INTENT THAT THE ELDERLY OR DISABLED PERSON BE SAFE FROM
   31  PHYSICAL INJURY AND CARED FOR IN AN APPROPRIATE  MANNER,  THE  DEFENDANT
   32  LEFT  THE  ELDERLY OR DISABLED PERSON WITH AN APPROPRIATE PERSON OR IN A
   33  SUITABLE LOCATION AND PROMPTLY NOTIFIED AN  APPROPRIATE  PERSON  OF  THE
   34  ELDERLY OR DISABLED PERSON'S LOCATION.
   35  S 261.20 ENDANGERING THE WELFARE OF AN ELDERLY OR DISABLED PERSON.
   36    A  PERSON  IS GUILTY OF ENDANGERING THE WELFARE OF AN ELDERLY OR DISA-
   37  BLED PERSON WHEN BEING A PERSON LEGALLY CHARGED WITH THE CARE OR CUSTODY
   38  OF AN ELDERLY OR DISABLED PERSON:
   39    1. HE OR SHE KNOWINGLY ACTS IN A MANNER LIKELY TO BE INJURIOUS TO  THE
   40  PHYSICAL,  MENTAL  OR MORAL WELFARE OF AN ELDERLY OR DISABLED PERSON, OR
   41  DIRECTS OR AUTHORIZES SUCH AN ELDERLY OR DISABLED PERSON, TO  ENGAGE  IN
   42  AN  OCCUPATION INVOLVING A SUBSTANTIAL RISK OF DANGER TO HIS OR HER LIFE
   43  OR HEALTH; OR
   44    2. HE OR SHE FAILS OR REFUSES TO EXERCISE REASONABLE DILIGENCE IN  THE
   45  CONTROL  OF  SUCH  ELDERLY OR DISABLED PERSON TO PREVENT HIM OR HER FROM
   46  PHYSICAL, MENTAL OR MORAL INJURY, OR FROM ENGAGING IN ACTS  INVOLVING  A
   47  SUBSTANTIAL RISK OF DANGER TO HIS OR HER LIFE OR HEALTH.
   48    ENDANGERING  THE WELFARE OF AN ELDERLY OR DISABLED PERSON IS A CLASS A
   49  MISDEMEANOR.
   50  S 261.25 ENDANGERING THE WELFARE  OF  AN  ELDERLY  OR  DISABLED  PERSON;
   51             CORROBORATION.
   52    A  PERSON  SHALL  NOT  BE  CONVICTED  OF ENDANGERING THE WELFARE OF AN
   53  ELDERLY OR DISABLED PERSON, OR OF AN ATTEMPT TO COMMIT  THE  SAME,  UPON
   54  THE  TESTIMONY OF A VICTIM WHO IS INCAPABLE OF CONSENT BECAUSE OF MENTAL
   55  DEFECT OR MENTAL INCAPACITY AS TO CONDUCT THAT CONSTITUTES AN OFFENSE OR
   56  AN ATTEMPT TO COMMIT AN OFFENSE REFERRED TO IN SECTION  130.16  OF  THIS
       A. 6059                             4

    1  CHAPTER,  WITHOUT  ADDITIONAL  EVIDENCE  SUFFICIENT  PURSUANT TO SECTION
    2  130.16 OF THIS CHAPTER TO SUSTAIN A CONVICTION OF AN OFFENSE REFERRED TO
    3  IN SECTION 130.16 OF THIS CHAPTER, OR OF AN ATTEMPT TO COMMIT THE SAME.
    4  S  261.30 ENDANGERING  THE  WELFARE  OF  AN  ELDERLY OR DISABLED PERSON;
    5             DEFENSE.
    6    IN ANY PROSECUTION FOR ENDANGERING THE WELFARE OF AN ELDERLY OR  DISA-
    7  BLED PERSON, PURSUANT TO SECTION 261.20 OF THIS ARTICLE:
    8    1.  BASED UPON AN ALLEGED FAILURE OR REFUSAL TO PROVIDE PROPER MEDICAL
    9  CARE OR TREATMENT TO AN ELDERLY OR DISABLED PERSON, WHO IS ILL, IT IS AN
   10  AFFIRMATIVE DEFENSE THAT THE ELDERLY OR DISABLED PERSON IS A  MEMBER  OR
   11  ADHERENT  OF  AN ORGANIZED CHURCH OR RELIGIOUS GROUP THE TENETS OF WHICH
   12  PRESCRIBE PRAYER AS THE PRINCIPAL TREATMENT FOR ILLNESS,  AND  THAT  THE
   13  ELDERLY  OR  DISABLED PERSON WAS TREATED IN ACCORDANCE WITH SUCH TENETS;
   14  OR
   15    2. BASED UPON AN ALLEGED DESERTION OF AN ELDERLY OR  DISABLED  PERSON,
   16  IT  IS  AN  AFFIRMATIVE DEFENSE THAT, WITH THE INTENT THAT THE PERSON BE
   17  SAFE FROM PHYSICAL INJURY AND CARED FOR IN AN  APPROPRIATE  MANNER,  THE
   18  DEFENDANT  LEFT  THE  PERSON WITH AN APPROPRIATE PERSON OR IN A SUITABLE
   19  LOCATION AND PROMPTLY NOTIFIED AN APPROPRIATE  PERSON  OF  THE  PERSON'S
   20  LOCATION.
   21  S  261.35 ENDANGERING  THE  WELFARE  OF A VULNERABLE ELDERLY PERSON OR A
   22             DISABLED PERSON IN THE SECOND DEGREE.
   23    A PERSON IS GUILTY OF ENDANGERING THE WELFARE OF A VULNERABLE  ELDERLY
   24  PERSON OR A DISABLED PERSON IN THE SECOND DEGREE WHEN, BEING A CAREGIVER
   25  FOR A VULNERABLE ELDERLY PERSON OR A DISABLED PERSON:
   26    1.  WITH  INTENT  TO  CAUSE  PHYSICAL INJURY TO SUCH PERSON, HE OR SHE
   27  CAUSES SUCH INJURY TO SUCH PERSON; OR
   28    2. HE OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO SUCH PERSON; OR
   29    3. WITH CRIMINAL NEGLIGENCE, HE OR SHE CAUSES PHYSICAL INJURY TO  SUCH
   30  PERSON BY MEANS OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; OR
   31    4.  HE  OR  SHE  SUBJECTS  SUCH  PERSON  TO SEXUAL CONTACT WITHOUT THE
   32  LATTER'S CONSENT. LACK OF CONSENT UNDER THIS  SUBDIVISION  RESULTS  FROM
   33  FORCIBLE COMPULSION OR INCAPACITY TO CONSENT, AS THOSE TERMS ARE DEFINED
   34  IN  ARTICLE  ONE  HUNDRED  THIRTY  OF THIS CHAPTER, OR ANY OTHER CIRCUM-
   35  STANCES IN WHICH THE VULNERABLE ELDERLY PERSON OR DISABLED  PERSON  DOES
   36  NOT EXPRESSLY OR IMPLIEDLY ACQUIESCE IN THE CAREGIVER'S CONDUCT.
   37    IN  ANY  PROSECUTION  UNDER  THIS  SUBDIVISION  IN  WHICH THE VICTIM'S
   38  ALLEGED LACK OF  CONSENT  RESULTS  SOLELY  FROM  INCAPACITY  TO  CONSENT
   39  BECAUSE  OF  THE  VICTIM'S  MENTAL  DISABILITY OR MENTAL INCAPACITY, THE
   40  PROVISIONS OF SECTION 130.16 OF THIS CHAPTER SHALL APPLY.  IN  ADDITION,
   41  IN  ANY PROSECUTION UNDER THIS SUBDIVISION IN WHICH THE VICTIM'S LACK OF
   42  CONSENT IS BASED SOLELY UPON HIS OR HER INCAPACITY TO CONSENT BECAUSE HE
   43  OR SHE WAS MENTALLY DISABLED, MENTALLY INCAPACITATED OR PHYSICALLY HELP-
   44  LESS, IT IS AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT, AT THE TIME HE OR
   45  SHE ENGAGED IN THE CONDUCT CONSTITUTING THE OFFENSE, DID NOT KNOW OF THE
   46  FACTS OR CONDITIONS RESPONSIBLE FOR SUCH INCAPACITY TO CONSENT.
   47    ENDANGERING THE WELFARE OF A VULNERABLE ELDERLY PERSON OR  A  DISABLED
   48  PERSON IN THE SECOND DEGREE IS A CLASS E FELONY.
   49  S  261.40  ENDANGERING  THE  WELFARE OF A VULNERABLE ELDERLY PERSON OR A
   50             DISABLED PERSON IN THE FIRST DEGREE.
   51    A PERSON IS GUILTY OF ENDANGERING THE WELFARE OF A VULNERABLE  ELDERLY
   52  PERSON  OR A DISABLED PERSON IN THE FIRST DEGREE WHEN, BEING A CAREGIVER
   53  FOR A VULNERABLE ELDERLY PERSON OR DISABLED PERSON:
   54    1. WITH INTENT TO CAUSE PHYSICAL INJURY TO  SUCH  PERSON,  HE  OR  SHE
   55  CAUSES SERIOUS PHYSICAL INJURY TO SUCH PERSON; OR
   56    2. HE OR SHE RECKLESSLY CAUSES SERIOUS PHYSICAL INJURY TO SUCH PERSON.
       A. 6059                             5

    1    ENDANGERING  THE  WELFARE OF A VULNERABLE ELDERLY PERSON OR A DISABLED
    2  PERSON IN THE FIRST DEGREE IS A CLASS D FELONY.
    3    S 3. Section 120.05 of the penal law is amended by adding a new subdi-
    4  vision 13 to read as follows:
    5    13. BEING EIGHTEEN YEARS OLD OR MORE AND WITH INTENT TO CAUSE PHYSICAL
    6  INJURY  TO  A  PERSON SIXTY YEARS OLD OR OLDER, OR TO A PERSON WHO HAS A
    7  PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY  LIMITS  A  MAJOR  LIFE
    8  ACTIVITY, THE DEFENDANT CAUSES SUCH INJURY TO SUCH PERSON.
    9    S 4. Section 135.30 of the penal law is amended to read as follows:
   10  S 135.30 Kidnapping; defense.
   11    In  any  prosecution for kidnapping, it is an affirmative defense that
   12  (a) the defendant was a relative of the person abducted, and (b) his  OR
   13  HER sole purpose was to assume control of such person.
   14    THIS  SECTION  SHALL  NOT  APPLY  IN  THE  CASE WHEN THE PERSON WHO IS
   15  ABDUCTED IS SIXTY YEARS OLD OR OLDER, OR TO A PERSON WHO HAS A  PHYSICAL
   16  OR  MENTAL  IMPAIRMENT  THAT SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY,
   17  AND THE KIDNAPPING WAS DONE WITH THE INTENTION OF COMPELLING SUCH PERSON
   18  TO TRANSFER AN ASSET TO THE DEFENDANT OR TO A THIRD PARTY.
   19    S 5. Section 135.45 of the penal law is amended by adding a new subdi-
   20  vision 3 to read as follows:
   21    3. KNOWING THAT HE OR SHE HAS NO LEGAL RIGHT TO DO SO, HE OR SHE TAKES
   22  OR ENTICES ANY PERSON SIXTY YEARS OF AGE OR OLDER, OR A PERSON WHO HAS A
   23  PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY  LIMITS  A  MAJOR  LIFE
   24  ACTIVITY, FROM THE CUSTODY OF ANOTHER PERSON OR INSTITUTION.
   25    S 6. Section 140.10 of the penal law is amended by adding a new subdi-
   26  vision (h) to read as follows:
   27    (H)  WHICH  IS  A  DWELLING OCCUPIED BY A PERSON SIXTY YEARS OF AGE OR
   28  OLDER, OR A PERSON WHO HAS A PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTAN-
   29  TIALLY LIMITS A MAJOR LIFE ACTIVITY.
   30    S 7. Severability. If any provision of this  act  or  the  application
   31  thereof  to  any  person  or  circumstances  is  held to be invalid, the
   32  remainder of the act and the application  of  such  provision  to  other
   33  persons or circumstances shall not be affected thereby.
   34    S 8. This act shall take effect immediately.
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