Amd §§260.31, 260.32, 260.34 & 70.02, add Part 4 Title Y-3 Art 497 §§497.00 & 497.05, Pen L; amd §200.50, CP
L
Relates to vulnerable elderly or disabled persons; deletes references to caregiver to make any person who endangers the welfare of an elderly or disabled person guilty of provisions of the penal law.
STATE OF NEW YORK
________________________________________________________________________
93
2023-2024 Regular Sessions
IN SENATE(Prefiled)
January 4, 2023
___________
Introduced by Sen. TEDISCO -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to crimes against vulnerable elderly or disabled persons
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 260.31 of the penal law, as added by chapter 381 of
2 the laws of 1998, subdivision 1 as amended, subdivision 4 as added and
3 such section as renumbered by chapter 14 of the laws of 2010, and subdi-
4 vision 2 as amended by chapter 193 of the laws of 2010, is amended to
5 read as follows:
6 § 260.31 Vulnerable elderly persons; definitions.
7 For the purpose of sections 260.32 and 260.34 of this article, the
8 following definitions shall apply:
9 1. ["Caregiver" means a person who (i) assumes responsibility for the
10 care of a vulnerable elderly person, or an incompetent or physically
11 disabled person pursuant to a court order; or (ii) receives monetary or
12 other valuable consideration for providing care for a vulnerable elderly
13 person, or an incompetent or physically disabled person.
14 2.] "Sexual contact" means any touching of the sexual or other inti-
15 mate parts of a person for the purpose of gratifying sexual desire of
16 either party. It includes the touching of the actor by the victim, as
17 well as the touching of the victim by the actor, whether directly or
18 through clothing, as well as the emission of ejaculate by the actor upon
19 any part of the victim, clothed or unclothed.
20 [3.] 2. "Vulnerable elderly person" means a person sixty years of age
21 or older who is suffering from a disease or infirmity associated with
22 advanced age and manifested by demonstrable physical, mental or
23 emotional dysfunction to the extent that the person is incapable of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00244-01-3
S. 93 2
1 adequately providing for his or her own health or personal care or a
2 person seventy years of age or older.
3 [4.] 3. "Incompetent or physically disabled person" means an individ-
4 ual who is unable to care for himself or herself because of physical
5 disability, mental disease or defect.
6 § 2. The opening paragraph and subdivision 4 of section 260.32 of the
7 penal law, as amended by chapter 14 of the laws of 2010, are amended to
8 read as follows:
9 A person is guilty of endangering the welfare of a vulnerable elderly
10 person, or an incompetent or physically disabled person in the second
11 degree when[, being a caregiver for a vulnerable elderly person, or an
12 incompetent or physically disabled person]:
13 4. He or she subjects such person to sexual contact without the
14 latter's consent. Lack of consent under this subdivision results from
15 forcible compulsion or incapacity to consent, as those terms are defined
16 in article one hundred thirty of this [chapter] part, or any other
17 circumstances in which the vulnerable elderly person, or an incompetent
18 or physically disabled person does not expressly or impliedly acquiesce
19 [in the caregiver's conduct]. In any prosecution under this subdivision
20 in which the victim's alleged lack of consent results solely from inca-
21 pacity to consent because of the victim's mental disability or mental
22 incapacity, the provisions of section 130.16 of this [chapter] part
23 shall apply. In addition, in any prosecution under this subdivision in
24 which the victim's lack of consent is based solely upon his or her inca-
25 pacity to consent because he or she was mentally disabled, mentally
26 incapacitated or physically helpless, it is an affirmative defense that
27 the defendant, at the time he or she engaged in the conduct constituting
28 the offense, did not know of the facts or conditions responsible for
29 such incapacity to consent.
30 § 3. The opening paragraph of section 260.34 of the penal law, as
31 amended by chapter 14 of the laws of 2010, is amended to read as
32 follows:
33 A person is guilty of endangering the welfare of a vulnerable elderly
34 person, or an incompetent or physically disabled person in the first
35 degree when[, being a caregiver for a vulnerable elderly person, or an
36 incompetent or physically disabled person]:
37 § 4. Paragraphs (c) and (d) of subdivision 1 of section 70.02 of the
38 penal law, paragraph (c) as amended by chapter 134 of the laws of 2019
39 and paragraph (d) as amended by chapter 7 of the laws of 2007, are
40 amended to read as follows:
41 (c) Class D violent felony offenses: an attempt to commit any of the
42 class C felonies set forth in paragraph (b); reckless assault of a child
43 as defined in section 120.02, assault in the second degree as defined in
44 section 120.05, menacing a police officer or peace officer as defined in
45 section 120.18, stalking in the first degree, as defined in subdivision
46 one of section 120.60, strangulation in the second degree as defined in
47 section 121.12, rape in the second degree as defined in section 130.30,
48 criminal sexual act in the second degree as defined in section 130.45,
49 sexual abuse in the first degree as defined in section 130.65, course of
50 sexual conduct against a child in the second degree as defined in
51 section 130.80, aggravated sexual abuse in the third degree as defined
52 in section 130.66, facilitating a sex offense with a controlled
53 substance as defined in section 130.90, labor trafficking as defined in
54 paragraphs (a) and (b) of subdivision three of section 135.35, criminal
55 possession of a weapon in the third degree as defined in subdivision
56 five, six, seven, eight, nine or ten of section 265.02, criminal sale of
S. 93 3
1 a firearm in the third degree as defined in section 265.11, intimidating
2 a victim or witness in the second degree as defined in section 215.16,
3 endangering the welfare of a vulnerable elderly person, or an incompe-
4 tent or physically disabled person in the first degree as defined in
5 section 260.34, soliciting or providing support for an act of terrorism
6 in the second degree as defined in section 490.10, and making a terror-
7 istic threat as defined in section 490.20, falsely reporting an incident
8 in the first degree as defined in section 240.60, placing a false bomb
9 or hazardous substance in the first degree as defined in section 240.62,
10 placing a false bomb or hazardous substance in a sports stadium or
11 arena, mass transportation facility or enclosed shopping mall as defined
12 in section 240.63, aggravated unpermitted use of indoor pyrotechnics in
13 the first degree as defined in section 405.18, and criminal manufacture,
14 sale, or transport of an undetectable firearm, rifle or shotgun as
15 defined in section 265.50.
16 (d) Class E violent felony offenses: endangering the welfare of a
17 vulnerable elderly person, or an incompetent or physically disabled
18 person in the second degree as defined in section 260.32, an attempt to
19 commit any of the felonies of criminal possession of a weapon in the
20 third degree as defined in subdivision five, six, seven or eight of
21 section 265.02 as a lesser included offense of that section as defined
22 in section 220.20 of the criminal procedure law, persistent sexual abuse
23 as defined in section 130.53, aggravated sexual abuse in the fourth
24 degree as defined in section 130.65-a, falsely reporting an incident in
25 the second degree as defined in section 240.55 and placing a false bomb
26 or hazardous substance in the second degree as defined in section
27 240.61.
28 § 5. Part 4 of the penal law is amended by adding a new title Y-3 to
29 read as follows:
30 TITLE Y-3
31 CRIMES AGAINST THE
32 ELDERLY OR DISABLED
33 ARTICLE 497
34 CRIMES AGAINST THE
35 ELDERLY OR DISABLED
36 Section 497.00 Crimes against the elderly or disabled.
37 497.05 Sentencing.
38 § 497.00 Crimes against the elderly or disabled.
39 1. A person commits a crime against the elderly or disabled when he or
40 she commits a specified offense and either:
41 (a) intentionally selects the person against whom the offense is
42 committed or intended to be committed in whole or in substantial part
43 because of a belief or perception regarding the disability status or age
44 related infirmity or disease of a person, regardless of whether the
45 belief or perception is correct; or
46 (b) intentionally commits the act or acts constituting the offense in
47 whole or in substantial part because of a belief or perception regarding
48 disability status or age related infirmity or disease of a person,
49 regardless of whether the belief or perception is correct.
50 2. For the purpose of this section: (a) when a person reasonably
51 appears to have a disability or an age related infirmity or disease,
52 there shall be a rebuttable presumption the defendant selected the
53 person against whom the offense or act is committed or intended to be
54 committed, in whole or in part because of a belief or perception regard-
55 ing the disability status or age related infirmity or disease of such
56 person; and (b) when a person is seventy years old or more, there shall
S. 93 4
1 be a rebuttable presumption that such person appears to have a disabili-
2 ty or an age related infirmity.
3 3. A "specified offense" is an offense defined by any of the following
4 provisions of this chapter: section 120.00 (assault in the third
5 degree); section 120.05 (assault in the second degree); section 120.10
6 (assault in the first degree); section 120.12 (aggravated assault upon a
7 person less than eleven years old); section 120.13 (menacing in the
8 first degree); section 120.14 (menacing in the second degree); section
9 120.15 (menacing in the third degree); section 120.20 (reckless endan-
10 germent in the second degree); section 120.25 (reckless endangerment in
11 the first degree); section 120.45 (stalking in the fourth degree);
12 section 120.50 (stalking in the third degree); section 120.55 (stalking
13 in the second degree); section 120.60 (stalking in the first degree);
14 subdivision one of section 125.15 (manslaughter in the second degree);
15 subdivision one, two or four of section 125.20 (manslaughter in the
16 first degree); section 125.25 (murder in the second degree); subdivision
17 one of section 130.35 (rape in the first degree); subdivision one of
18 section 130.50 (criminal sexual act in the first degree); subdivision
19 one of section 130.65 (sexual abuse in the first degree); paragraph (a)
20 of subdivision one of section 130.67 (aggravated sexual abuse in the
21 second degree); paragraph (a) of subdivision one of section 130.70
22 (aggravated sexual abuse in the first degree); section 135.05 (unlawful
23 imprisonment in the second degree); section 135.10 (unlawful imprison-
24 ment in the first degree); section 135.20 (kidnapping in the second
25 degree); section 135.25 (kidnapping in the first degree); section 135.60
26 (coercion in the second degree); section 135.65 (coercion in the first
27 degree); section 140.10 (criminal trespass in the third degree); section
28 140.15 (criminal trespass in the second degree); section 140.17 (crimi-
29 nal trespass in the first degree); section 140.20 (burglary in the third
30 degree); section 140.25 (burglary in the second degree); section 140.30
31 (burglary in the first degree); section 145.00 (criminal mischief in the
32 fourth degree); section 145.05 (criminal mischief in the third degree);
33 section 145.10 (criminal mischief in the second degree); section 145.12
34 (criminal mischief in the first degree); section 150.05 (arson in the
35 fourth degree); section 150.10 (arson in the third degree); section
36 150.15 (arson in the second degree); section 150.20 (arson in the first
37 degree); section 155.25 (petit larceny); section 155.30 (grand larceny
38 in the fourth degree); section 155.35 (grand larceny in the third
39 degree); section 155.40 (grand larceny in the second degree); section
40 155.42 (grand larceny in the first degree); section 160.05 (robbery in
41 the third degree); section 160.10 (robbery in the second degree);
42 section 160.15 (robbery in the first degree); section 240.25 (harassment
43 in the first degree); subdivision one, two or four of section 240.30
44 (aggravated harassment in the second degree); or any attempt or conspir-
45 acy to commit any of the foregoing offenses.
46 4. For the purposes of this section:
47 (a) A person has an age related infirmity or disease when, being sixty
48 years old or more, such person has a physical or mental disease or
49 infirmity, typically associated with advanced age, which substantially
50 limits a major life activity;
51 (b) The term "substantial part" includes but is not limited to circum-
52 stances in which a defendant selects a person against whom to commit or
53 attempt to commit a crime due to a belief or perception that such person
54 is less likely to resist or be able to resist such crime due to their
55 disability or age related infirmity or disease, regardless of whether
56 such belief or perception is correct;
S. 93 5
1 (c) The term "disability" means a physical or mental impairment that
2 substantially limits a major life activity; and
3 (d) The term "resist" includes, in addition to its regular meaning,
4 reporting such crime to law enforcement, observing, recalling, or
5 reporting key features of any act or characteristic of a defendant
6 related to such crime, or providing evidence to aid in the investigation
7 or prosecution of such crime.
8 § 497.05 Sentencing.
9 1. When a person is convicted of a crime against the elderly or disa-
10 bled pursuant to this article, and the specified offense is a violent
11 felony offense, as defined in section 70.02 of this chapter, the crime
12 against the elderly or disabled shall be deemed a violent felony
13 offense.
14 2. When a person is convicted of a crime against the elderly or disa-
15 bled pursuant to this article and the specified offense is a misdemeanor
16 or a class C, D or E felony, the crime against the elderly or disabled
17 shall be deemed to be one category higher than the specified offense the
18 defendant committed, or one category higher than the offense level
19 applicable to the defendant's conviction for an attempt or conspiracy to
20 commit a specified offense, whichever is applicable.
21 3. Notwithstanding any other provision of law, when a person is
22 convicted of a crime against the elderly or disabled pursuant to this
23 article and the specified offense is a class B felony offense:
24 (a) the maximum term of the indeterminate sentence must be at least
25 six years if the defendant is sentenced pursuant to section 70.00 of
26 this chapter;
27 (b) the term of the determinate sentence must be at least eight years
28 if the defendant is sentenced pursuant to section 70.02 of this chapter;
29 (c) the term of the determinate sentence must be at least twelve years
30 if the defendant is sentenced pursuant to section 70.04 of this chapter;
31 (d) the maximum term of the indeterminate sentence must be at least
32 four years if the defendant is sentenced pursuant to section 70.05 of
33 this chapter; and
34 (e) the maximum term of the indeterminate sentence or the term of the
35 determinate sentence must be at least ten years if the defendant is
36 sentenced pursuant to section 70.06 of this chapter.
37 4. Notwithstanding any other provision of law, when a person is
38 convicted of crime against the elderly or disabled pursuant to this
39 article and the specified offense is a class A-1 felony, the minimum
40 period of the indeterminate sentence shall be not less than twenty
41 years.
42 § 6. Subdivisions 4 and 7 of section 200.50 of the criminal procedure
43 law, subdivision 4 as amended by section 15 of subpart A of part H of
44 chapter 55 of the laws of 2014, subdivision 7 as amended by chapter 7 of
45 the laws of 2007, and paragraph (c) of subdivision 7 as amended by chap-
46 ter 8 of the laws of 2019, are amended to read as follows:
47 4. A statement in each count that the grand jury, or, where the accu-
48 satory instrument is a superior court information, the district attor-
49 ney, accuses the defendant or defendants of a designated offense,
50 provided that in any prosecution under article four hundred eighty-five
51 of the penal law, the designated offense shall be the specified offense,
52 as defined in subdivision three of section 485.05 of the penal law,
53 followed by the phrase "as a hate crime", and provided further that in
54 any prosecution under section 490.25 of the penal law, the designated
55 offense shall be the specified offense, as defined in subdivision three
56 of section 490.05 of the penal law, followed by the phrase "as a crime
S. 93 6
1 of terrorism"; and provided further that in any prosecution under
2 section 130.91 of the penal law, the designated offense shall be the
3 specified offense, as defined in subdivision two of section 130.91 of
4 the penal law, followed by the phrase "as a sexually motivated felony";
5 and provided further that in any prosecution under section 497.00 of the
6 penal law, the designated offense shall be the specified offense, as
7 defined in subdivision three of section 497.00 of the penal law,
8 followed by the phrase "as a crime against the elderly or disabled"; and
9 provided further that in any prosecution under section 496.06 of the
10 penal law, the designated offense shall be the specified offense, as
11 defined in subdivision two of such section, followed by the phrase "as a
12 public corruption crime"; and
13 7. A plain and concise factual statement in each count which, without
14 allegations of an evidentiary nature,
15 (a) asserts facts supporting every element of the offense charged and
16 the defendant's or defendants' commission thereof with sufficient preci-
17 sion to clearly apprise the defendant or defendants of the conduct which
18 is the subject of the accusation; and
19 (b) in the case of any armed felony, as defined in subdivision forty-
20 one of section 1.20, states that such offense is an armed felony and
21 specifies the particular implement the defendant or defendants
22 possessed, were armed with, used or displayed or, in the case of an
23 implement displayed, specifies what the implement appeared to be; and
24 (c) in the case of any hate crime, as defined in section 485.05 of the
25 penal law, specifies, as applicable, that the defendant or defendants
26 intentionally selected the person against whom the offense was committed
27 or intended to be committed; or intentionally committed the act or acts
28 constituting the offense, in whole or in substantial part because of a
29 belief or perception regarding the race, color, national origin, ances-
30 try, gender, gender identity or expression, religion, religious prac-
31 tice, age, disability or sexual orientation of a person; and
32 (d) in the case of a crime of terrorism, as defined in section 490.25
33 of the penal law, specifies, as applicable, that the defendant or
34 defendants acted with intent to intimidate or coerce a civilian popu-
35 lation, influence the policy of a unit of government by intimidation or
36 coercion, or affect the conduct of a unit of government by murder,
37 assassination or kidnapping; and
38 (e) in the case of a sexually motivated felony, as defined in section
39 130.91 of the penal law, asserts facts supporting the allegation that
40 the offense was sexually motivated; and
41 (f) in the case of any crime against the elderly or disabled, as
42 defined in section 497.00 of the penal law, specifies, as applicable,
43 that the defendant or defendants intentionally selected the person
44 against whom the offense was committed or intended to be committed; or
45 intentionally committed the act or acts constituting the offense, in
46 whole or in substantial part because of a belief or perception regarding
47 the disability status or age related infirmity or disease of a person;
48 and
49 § 7. This act shall take effect on the first of November next succeed-
50 ing the date on which it shall have become a law.
