S02525 Summary:

BILL NOS02525
 
SAME ASNo Same As
 
SPONSORHELMING
 
COSPNSRBORRELLO, RHOADS
 
MLTSPNSR
 
Amd §§60.35, 120.05, 135.30, 135.45 & 140.10, add Art 261 §§261.00 - 261.40, Pen L
 
Establishes criminal offenses committed against the elderly or disabled persons.
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S02525 Actions:

BILL NOS02525
 
01/23/2023REFERRED TO CODES
01/03/2024REFERRED TO CODES
03/04/2024NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
05/08/2024REPORTED AND COMMITTED TO CRIME VICTIMS, CRIME AND CORRECTION
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S02525 Committee Votes:

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S02525 Floor Votes:

There are no votes for this bill in this legislative session.
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S02525 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2525
 
                               2023-2024 Regular Sessions
 
                    IN SENATE
 
                                    January 23, 2023
                                       ___________
 
        Introduced  by  Sen. HELMING -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes
 
        AN ACT to amend the penal law, in relation to establishing  a  mandatory
          senior  anti-violence services fee imposed upon conviction of a crimi-
          nal offense and offenses against the elderly and disabled

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The section heading and subdivision 1 of section 60.35 of
     2  the penal law, as amended by section 1 of part E of chapter  56  of  the
     3  laws  of  2004,  subparagraphs  (i),  (ii) and (iii) of paragraph (a) of
     4  subdivision 1 as amended by section 1 of part DD of chapter  56  of  the
     5  laws  of  2008  and paragraph (b) of subdivision 1 as amended by chapter
     6  320 of the laws of 2006, are amended to read as follows:
     7    Mandatory surcharge, sex offender registration fee, DNA databank  fee,
     8  supplemental  sex offender victim fee [and], crime victim assistance and
     9  a senior anti-violence services fee required in certain cases.
    10    1. (a) Except as provided in section  eighteen  hundred  nine  of  the
    11  vehicle  and  traffic law and section 27.12 of the parks, recreation and
    12  historic preservation law, whenever  proceedings  in  an  administrative
    13  tribunal or a court of this state result in a conviction for a felony, a
    14  misdemeanor, or a violation, as these terms are defined in section 10.00
    15  of  this  chapter,  there  shall  be  levied  at  sentencing a mandatory
    16  surcharge, sex offender registration fee,  DNA  databank  fee  [and],  a
    17  crime  victim  assistance fee and a senior anti-violence services fee in
    18  addition to any sentence required or permitted  by  law,  in  accordance
    19  with the following schedule:
    20    (i)  a person convicted of a felony shall pay a mandatory surcharge of
    21  three hundred dollars [and], a crime victim assistance  fee  of  twenty-
    22  five dollars, and a senior anti-violence services fee of fifty dollars;
    23    (ii)  a  person  convicted  of  a  misdemeanor  shall  pay a mandatory
    24  surcharge of one hundred seventy-five  dollars  [and],  a  crime  victim
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05610-01-3

        S. 2525                             2
 
     1  assistance  fee  of  twenty-five  dollars,  and  a  senior anti-violence
     2  services fee of fifty dollars;
     3    (iii)  a  person  convicted  of  a  violation  shall  pay  a mandatory
     4  surcharge of ninety-five dollars [and], a crime victim assistance fee of
     5  twenty-five dollars, and a senior anti-violence services  fee  of  fifty
     6  dollars;
     7    (iv) a person convicted of a sex offense as defined by subdivision two
     8  of section one hundred sixty-eight-a of the correction law or a sexually
     9  violent  offense  as defined by subdivision three of section one hundred
    10  sixty-eight-a of the correction law shall, in addition  to  a  mandatory
    11  surcharge  and crime victim assistance fee, pay a sex offender registra-
    12  tion fee of fifty dollars[.], and a senior anti-violence services fee of
    13  fifty dollars;
    14    (v) a person convicted of a designated offense as defined by  subdivi-
    15  sion  seven  of  section  nine  hundred ninety-five of the executive law
    16  shall, in addition to a mandatory surcharge and crime victim  assistance
    17  fee, pay a DNA databank fee of fifty dollars, and a senior anti-violence
    18  services fee of fifty dollars.
    19    (b)  When  the  felony  or  misdemeanor  conviction in [subparagraphs]
    20  subparagraph (i), (ii) or (iv) of  paragraph  (a)  of  this  subdivision
    21  results  from an offense contained in article one hundred thirty of this
    22  chapter, incest in the third, second  or  first  degree  as  defined  in
    23  sections  255.25,  255.26  and  255.27  of  this  chapter  or an offense
    24  contained in article two hundred sixty-three of this chapter, the person
    25  convicted shall pay a supplemental sex offender victim fee of one  thou-
    26  sand  dollars,  and  a senior anti-violence services fee of five hundred
    27  dollars, in addition to the mandatory surcharge and any other fee.
    28    § 2. The penal law is amended by adding a new article 261 to  read  as
    29  follows:
 
    30                                 ARTICLE 261
    31                  OFFENSES AGAINST THE ELDERLY AND DISABLED
    32  Section 261.00 Elderly,  vulnerable  elderly and disabled persons; defi-
    33                   nitions.
    34          261.05 Crimes against the elderly and disabled; presumption.
    35          261.10 Abandonment of an elderly or disabled person.
    36          261.15 Abandonment of an elderly or disabled person; defense.
    37          261.20 Endangering the welfare of an elderly or disabled person.
    38          261.25 Endangering the welfare of an elderly or disabled person;
    39                   corroboration.
    40          261.30 Endangering the welfare of an elderly or disabled person;
    41                   defense.
    42          261.35 Endangering the welfare of a vulnerable elderly person or
    43                   a disabled person in the second degree.
    44          261.40 Endangering the welfare of a vulnerable elderly person or
    45                   a disabled person in the first degree.
 
    46  § 261.00 Elderly, vulnerable elderly and disabled persons; definitions.
    47    For the purpose of  this  article,  the  following  definitions  shall
    48  apply:
    49    1.  "Caregiver"  means a person who (a) assumes responsibility for the
    50  care of a vulnerable elderly person pursuant to a court  order;  or  (b)
    51  receives monetary or other valuable consideration for providing care for
    52  a vulnerable elderly person.
    53    2. "Sexual contact" means any touching of the sexual or other intimate
    54  parts of a person not married to the actor for the purpose of gratifying

        S. 2525                             3
 
     1  sexual desire of either party.  It includes the touching of the actor by
     2  the  victim, as well as the touching of the victim by the actor, whether
     3  directly or through clothing.
     4    3.  "Vulnerable  elderly  person" means a person sixty years of age or
     5  older who is suffering from  a  disease  or  infirmity  associated  with
     6  advanced   age  and  manifested  by  demonstrable  physical,  mental  or
     7  emotional dysfunction to the extent that  the  person  is  incapable  of
     8  adequately providing for his or her own health or personal care.
     9    4. "Elderly person" means a person sixty years of age or older.
    10    5.  "Disabled  person"  means  a  person  who has a physical or mental
    11  impairment that substantially limits a major life activity.
    12  § 261.05 Crimes against the elderly and disabled; presumption.
    13    In any case in which it shall be  shown  that  a  person  intended  to
    14  commit  a  specified offense pursuant to section 485.05 of this chapter,
    15  it shall be a rebuttal presumption that the person selected  the  victim
    16  or  committed  or  intended  to  commit the act or acts constituting the
    17  offense in whole or in substantial part because of a  belief  that  such
    18  victim is elderly or disabled.
    19  § 261.10 Abandonment of an elderly or disabled person.
    20    A  person  is  guilty  of abandonment of an elderly or disabled person
    21  when, being a person legally charged with the  care  or  custody  of  an
    22  elderly  or  disabled person, he or she deserts such person in any place
    23  with intent to wholly abandon him or her.
    24    Abandonment of an elderly or disabled person is a class E felony.
    25  § 261.15 Abandonment of an elderly or disabled person; defense.
    26    In any prosecution for abandonment of an elderly or  disabled  person,
    27  pursuant  to  section  261.10  of  this  article,  based upon an alleged
    28  desertion of an elderly or disabled person  with  an  intent  to  wholly
    29  abandon such an elderly or disabled person, it is an affirmative defense
    30  that,  with  the intent that the elderly or disabled person be safe from
    31  physical injury and cared for in an appropriate  manner,  the  defendant
    32  left  the  elderly or disabled person with an appropriate person or in a
    33  suitable location and promptly notified an  appropriate  person  of  the
    34  elderly or disabled person's location.
    35  § 261.20 Endangering the welfare of an elderly or disabled person.
    36    A  person  is guilty of endangering the welfare of an elderly or disa-
    37  bled person when being a person legally charged with the care or custody
    38  of an elderly or disabled person:
    39    1. He or she knowingly acts in a manner likely to be injurious to  the
    40  physical,  mental  or moral welfare of an elderly or disabled person, or
    41  directs or authorizes such an elderly or disabled person, to  engage  in
    42  an  occupation involving a substantial risk of danger to his or her life
    43  or health; or
    44    2. He or she fails or refuses to exercise reasonable diligence in  the
    45  control  of  such  elderly or disabled person to prevent him or her from
    46  physical, mental or moral injury, or from engaging in acts  involving  a
    47  substantial risk of danger to his or her life or health.
    48    Endangering  the welfare of an elderly or disabled person is a class A
    49  misdemeanor.
    50  § 261.25 Endangering the welfare  of  an  elderly  or  disabled  person;
    51             corroboration.
    52    A  person  shall  not  be  convicted  of endangering the welfare of an
    53  elderly or disabled person, or of an attempt to commit  the  same,  upon
    54  the  testimony of a victim who is incapable of consent because of mental
    55  defect or mental incapacity as to conduct that constitutes an offense or
    56  an attempt to commit an offense referred to in section  130.16  of  this

        S. 2525                             4
 
     1  part,  without additional evidence sufficient pursuant to section 130.16
     2  of this part to sustain a  conviction  of  an  offense  referred  to  in
     3  section 130.16 of this part, or of an attempt to commit the same.
     4  §  261.30 Endangering  the  welfare  of  an  elderly or disabled person;
     5             defense.
     6    In any prosecution for endangering the welfare of an elderly or  disa-
     7  bled person, pursuant to section 261.20 of this article:
     8    1.  based upon an alleged failure or refusal to provide proper medical
     9  care or treatment to an elderly or disabled person, who is ill, it is an
    10  affirmative defense that the elderly or disabled person is a  member  or
    11  adherent  of  an organized church or religious group the tenets of which
    12  prescribe prayer as the principal treatment for illness,  and  that  the
    13  elderly  or  disabled person was treated in accordance with such tenets;
    14  or
    15    2. based upon an alleged desertion of an elderly or  disabled  person,
    16  it  is  an  affirmative defense that, with the intent that the person be
    17  safe from physical injury and cared for in an  appropriate  manner,  the
    18  defendant  left  the  person with an appropriate person or in a suitable
    19  location and promptly notified an appropriate  person  of  the  person's
    20  location.
    21  §  261.35 Endangering  the  welfare  of a vulnerable elderly person or a
    22             disabled person in the second degree.
    23    A person is guilty of endangering the welfare of a vulnerable  elderly
    24  person or a disabled person in the second degree when, being a caregiver
    25  for a vulnerable elderly person or a disabled person:
    26    1.  With  intent  to  cause  physical injury to such person, he or she
    27  causes such injury to such person; or
    28    2. He or she recklessly causes physical injury to such person; or
    29    3. With criminal negligence, he or she causes physical injury to  such
    30  person by means of a deadly weapon or a dangerous instrument; or
    31    4.  He  or  she  subjects  such  person  to sexual contact without the
    32  latter's consent. Lack of consent under this  subdivision  results  from
    33  forcible compulsion or incapacity to consent, as those terms are defined
    34  in  article  one hundred thirty of this part, or any other circumstances
    35  in which the vulnerable elderly  person  or  disabled  person  does  not
    36  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 part shall apply. In  addition,  in
    41  any  prosecution  under  this  subdivision in which the victim's lack of
    42  consent is based solely upon his or her incapacity to consent because he
    43  or she was mentally disabled, mentally incapacitated or physically help-
    44  less, it is an affirmative defense that the defendant, at the time he or
    45  she engaged in the conduct constituting the offense, did not know of the
    46  facts or conditions responsible for such incapacity to consent.
    47    Endangering the welfare of a vulnerable elderly person or  a  disabled
    48  person in the second degree is a class E felony.
    49  §  261.40  Endangering  the  welfare of a vulnerable elderly person or a
    50             disabled person in the first degree.
    51    A person is guilty of endangering the welfare of a vulnerable  elderly
    52  person  or a disabled person in the first degree when, being a caregiver
    53  for a vulnerable elderly person or disabled person:
    54    1. With intent to cause physical injury to  such  person,  he  or  she
    55  causes serious physical injury to such person; or
    56    2. He or she recklessly causes serious physical injury to such person.

        S. 2525                             5
 
     1    Endangering  the  welfare of a vulnerable elderly person or a disabled
     2  person in the first degree is a class D felony.
     3    §  3.  Subdivision  14 of section 120.05 of the penal law, as added by
     4  chapter 268 of the laws of 2016, is amended and a new subdivision 15  is
     5  added to read as follows:
     6    14. With intent to prevent or obstruct a process server, as defined in
     7  section  eighty-nine-t  of  the  general business law, from performing a
     8  lawful duty pursuant to article three of  the  civil  practice  law  and
     9  rules,  or  intentionally,  as retaliation against such a process server
    10  for the performance of the process  server's  duties  pursuant  to  such
    11  article, including by means of releasing or failing to control an animal
    12  evincing  the  actor's  intent  that  the animal prevent or obstruct the
    13  lawful duty of the process server or as retaliation against the  process
    14  server, he or she causes physical injury to such process server[.]; or
    15    15. Being eighteen years old or more and with intent to cause physical
    16  injury  to  a  person sixty years old or older, or to a person who has a
    17  physical or mental impairment that substantially  limits  a  major  life
    18  activity, the defendant causes such injury to such person.
    19    § 4. Section 135.30 of the penal law is amended to read as follows:
    20  § 135.30 Kidnapping; defense.
    21    In  any  prosecution for kidnapping, it is an affirmative defense that
    22  (a) the defendant was a relative of the person abducted, and (b) his  or
    23  her sole purpose was to assume control of such person.
    24    This  section  shall  not  apply  in  the  case when the person who is
    25  abducted is sixty years old or older, or to a person who has a  physical
    26  or  mental  impairment  that substantially limits a major life activity,
    27  and the kidnapping was done with the intention of compelling such person
    28  to transfer an asset to the defendant or to a third party.
    29    § 5. Section 135.45 of the penal law is amended by adding a new subdi-
    30  vision 3 to read as follows:
    31    3. Knowing that he or she has no legal right to do so, he or she takes
    32  or entices any person sixty years of age or older, or a person who has a
    33  physical or mental impairment that substantially  limits  a  major  life
    34  activity, from the custody of another person or institution.
    35    § 6. Subdivision (g) of section 140.10 of the penal law, as amended by
    36  chapter 176 of the laws of 2011, is amended and a new subdivision (h) is
    37  added to read as follows:
    38    (g)  where  the property consists of a right-of-way or yard of a rail-
    39  road or rapid transit railroad which has been designated  and  conspicu-
    40  ously posted as a no-trespass railroad zone[.]; or
    41    (h)  which  is  a  dwelling occupied by a person sixty years of age or
    42  older, or a person who has a physical or mental impairment that substan-
    43  tially limits a major life activity.
    44    § 7. Severability. If any provision of this  act  or  the  application
    45  thereof  to  any  person  or  circumstances  is  held to be invalid, the
    46  remainder of the act and the application  of  such  provision  to  other
    47  persons or circumstances shall not be affected thereby.
    48    § 8. This act shall take effect immediately.
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