Expands provisions relating to custodial interference; provides for affirmative defense and special provisions relating to sentencing; establishes certain duties of law enforcement officers relating thereto.
Ayes (62): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Krueger, Kruger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
TITLE OF BILL: An act to amend the penal law, in relation to custodial interference and repealing certain provisions of such law relating thereto
PURPOSE: With increasing recognition of the seriousness of parental abduction, this bill is designed to overcome some of the significant obstacles to the recovery and return of missing children.
SUMMARY OF PROVISIONS: Section 1 amends subdivision 1 of section 135.45 of the Penal Law, custodial interference in the second degree, by removing the requirement to show that the abductor intended to hold the child permanently or for a protracted period, therefore making the focus of the statute the actual "taking" or "enticing" of the child.
Section 1 also amends subdivision 2 of section 135.45 of the Penal Law to define custodial interference in the second degree as the taking or enticing of a child, in the absence of a court order determining the rights of custody or visitation, with intent to deny access, custody or visitation rights of another to that child or for the purpose of evading the courts of this State.
Section 1 also amends subdivision 3 of section 135.45 of the Penal Law to include within the definition of custodial interference in the second degree the wrongful withholding or failure to return such child or incompetent person after expiration of any authorized visitation period with intent to either intimidate or harass another who has lawful custody or to prevent the other person from regaining custody.
Section 2 repeals section 135.50 of the Penal Law and adds a new section 135.50 dealing with custodial interference in the first degree and states that a person would be guilty of such offense when he or she commits the crime of custodial interference in the second degree and either: detains or conceals a child or incompetent person from his or her lawful custodian with intent to hold the child permanently or for a protracted period of time; or exposes the child or incompetent person to a risk in which his or her safety will be endangered or his or her health materially impaired; or removes the child or incompetent person from the state.
Section 3 adds three new sections (135.51, 135.52 and 135.53) to the Penal Law. Section 135.51 provides that it shall be an affirmative defense to a prosecution if the child or incompetent person has been abandoned, threatened with or subjected to violence or was fleeing a domestic violence situation. Section 135.52 provides that the court may assess any reasonable expenses incurred by the lawful custodian or governmental unit searching for the child against any person convicted under this section and may require such person to undergo counseling at his or her own expense. Section 135.53 provides that law enforcement officers conducting investigations in these matters
shall enter the case into the National Crime Information Center (NCIC) Computer and shall take the child or incompetent person into protective custody and return such child or incompetent person to his or her lawful custodian, to the institution from which he or she is entrusted or to the court in which a custody proceeding is pending.
Section 4 provides that this act shall take effect on the first day of November after enactment.
EXISTING LAW: Existing law requires that the abductor intends to hold the child permanently, which is almost impossible to prove and assumes that the whereabouts of the abducted child are known. Additionally, existing law does not make it a crime for one parent to conceal a child from his or her other parent in the absence of a court order.
JUSTIFICATION: According to the federal Office of Juvenile Justice and Delinquency Prevention in its National Incidence Studies on Missing, Abducted, Runaway and Thrownaway Children in America (NISMART), there are as many as 354,100 children abducted by a family member each year. These cases account for nearly 75% of all abductions.
There is increasing recognition among experts of the seriousness of parental abduction and its long-term negative consequences. Many children suffer permanent physical and/or psychological trauma as a result of the abduction. The left-behind parent, who is suffering with anxiety and loss, must also shoulder the financial burden of conducting a search for the child.
Unlike other state statutes, (e.g. California, N.J., Florida, Washington), the New York Statute is not comprehensive and only minimally effective. A New York citizen whose child was abducted by a family member is frequently placed at a terrible disadvantage in comparison to a parent facing the same problem in another state, because of the difficult threshold needed to secure a felony warrant under the New York law. This is critical because the classification of a family abduction as a felony triggers federal assistance for the victimized child and parent. Because it is extremely difficult to prove the child's whereabouts, it is virtually impossible to establish that the child has been taken out of the state. Unless a felony warrant is issued, the FBI and other authorities will not intervene in the location effort. The National Center for Missing and Exploited Children, for example, will not conduct a well renowned national picture campaign or "ADVO" which has achieved a 7 out of 10 child recovery rate.
Additionally, the current statute fails to encompass all scenarios of abduction. Conditioning the definition on the existence of a custody decree excludes large numbers of victimized parents and leaves many children vulnerable since abductions often occur during separation or prior to issuance of any order.
Finally, family violence is increasingly recognized as a factor of abduction. This proposal broadens the existing defense provisions to protect victims of domestic violence.
LEGISLATIVE HISTORY: 2008: S.1077 - Referred to Codes 2007: S.1077 - Passed Senate 2005-06: S.465 - Passed Senate 2003-04: S.1924 - Passed Senate 2001-02: S.4235/A.1856A - Passed Senate, Held in Assembly Codes Committee 1999-00: S.4332/A.7236 - Passed Senate, Held in Assembly Codes Committee 1997-98: S.3249- Referred to Codes
FISCAL IMPLICATIONS: None.
LOCAL FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: First day of November after enactment.
STATE OF NEW YORK ________________________________________________________________________ 2598 2011-2012 Regular Sessions IN SENATE January 26, 2011 ___________Introduced by Sen. SALAND -- 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 custodial interference and repealing certain provisions of such law relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 135.45 of the penal law is amended to read as follows: S 135.45 Custodial interference in the second degree. A person is guilty of custodial interference in the second degree when: 1. Being a relative of a child less than sixteen years old,
[intend- ing to hold such child permanently or for a protracted period,]and knowing that he OR SHE has no legal right to do so, he OR SHE takes or entices such child from his OR HER lawful custodian; or 2. IN THE ABSENCE OF A COURT ORDER DETERMINING THE RIGHTS OF CUSTODY OR VISITATION TO A CHILD LESS THAN SIXTEEN YEARS OLD, A RELATIVE OF SUCH CHILD TAKES OR ENTICES SUCH CHILD WITH INTENT TO DENY ACCESS FROM, CUSTODY OR VISITATION RIGHTS OF, ANOTHER TO THAT CHILD OR FOR THE PURPOSE OF EVADING THE JURISDICTION OF THE COURTS OF THIS STATE; OR 3. HE OR SHE RETAINS A CHILD LESS THAN SIXTEEN YEARS OLD OR AN INCOM- PETENT PERSON AFTER EXPIRATION OF ANY AUTHORIZED VISITATION PERIOD WITH INTENT TO EITHER INTIMIDATE OR HARASS ANOTHER WHO HAS LAWFUL CUSTODY OR TO PREVENT THE OTHER PERSON FROM REGAINING CUSTODY; OR 4. Knowing that he OR SHE has no legal right to do so, he OR SHE takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or insti- tution. Custodial interference in the second degree is a class A misdemeanor. S 2. Section 135.50 of the penal law is REPEALED and a new section 135.50 is added to read as follows:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05324-01-1 S. 2598 2
S 135.50 CUSTODIAL INTERFERENCE IN THE FIRST DEGREE. A PERSON IS GUILTY OF CUSTODIAL INTERFERENCE IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME OF CUSTODIAL INTERFERENCE IN THE SECOND DEGREE AND: 1. DETAINS OR CONCEALS THE CHILD OR INCOMPETENT PERSON FROM HIS OR HER LAWFUL CUSTODIAN WITH INTENT TO HOLD THE CHILD OR INCOMPETENT PERSON PERMANENTLY OR FOR A PROTRACTED PERIOD OF TIME; OR 2. EXPOSES THE CHILD OR INCOMPETENT PERSON TO A RISK THAT HIS OR HER SAFETY WILL BE ENDANGERED OR HIS OR HER HEALTH MATERIALLY IMPAIRED; OR 3. REMOVES THE CHILD OR INCOMPETENT PERSON FROM THE STATE. CUSTODIAL INTERFERENCE IN THE FIRST DEGREE IS A CLASS E FELONY. S 3. The penal law is amended by adding three new sections 135.51, 135.52 and 135.53 to read as follows: S 135.51 AFFIRMATIVE DEFENSE. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A PROSECUTION UNDER SECTION 135.45 OR UNDER SUBDIVISION ONE OR THREE OF SECTION 135.50 OF THIS ARTI- CLE THAT THE VICTIM HAD BEEN ABANDONED OR THAT THE TAKING WAS NECESSARY IN AN EMERGENCY TO PROTECT THE VICTIM BECAUSE HE OR SHE HAS BEEN SUBJECTED TO OR THREATENED WITH MISTREATMENT OR ABUSE OR THE PERSON WAS FLEEING AN INCIDENCE OR PATTERN OF DOMESTIC VIOLENCE. S 135.52 SPECIAL PROVISIONS RELATING TO SENTENCING. 1. IN ADDITION TO ANY SENTENCE IMPOSED AGAINST ANY PERSON CONVICTED OF VIOLATING SECTION 135.45 OR 135.50 OF THIS ARTICLE, THE COURT MAY ASSESS ANY REASONABLE EXPENSES INCURRED BY THE LAWFUL CUSTODIAN AND/OR STATE OR OTHER UNIT OF GOVERNMENT IN SEARCHING FOR AND/OR RECOVERING THE CHILD OR INCOMPETENT PERSON. 2. AS A CONDITION OF ANY SENTENCE IMPOSED AGAINST ANY PERSON CONVICTED OF VIOLATING SECTION 135.45 OR 135.50 OF THIS ARTICLE, THE COURT MAY IN ADDITION, REQUIRE THE DEFENDANT TO RECEIVE COUNSELING AT THE EXPENSE OF THE DEFENDANT, BASED ON HIS OR HER ABILITY TO PAY. S 135.53 DUTIES OF LAW ENFORCEMENT OFFICERS. 1. A LAW ENFORCEMENT OFFICER WHO IS CONDUCTING AN INVESTIGATION FOR A VIOLATION OF SECTION 135.45 OR 135.50 OF THIS ARTICLE SHALL ENTER SUCH CASE IN THE FEDERAL NATIONAL CRIME INFORMATION CENTER COMPUTER OR ANY SIMILAR SUCCESSOR COMPILATION. 2. A LAW ENFORCEMENT OFFICER WHO IS CONDUCTING AN INVESTIGATION OR MAKING AN ARREST FOR A VIOLATION OF SECTION 135.45 OR 135.50 OF THIS ARTICLE SHALL TAKE THE CHILD OR INCOMPETENT PERSON INTO PROTECTIVE CUSTODY. SUCH OFFICER SHALL RETURN SUCH CHILD OR INCOMPETENT PERSON TAKEN INTO PROTECTIVE CUSTODY TO HIS OR HER LAWFUL CUSTODIAN OR TO THE INSTITUTION FROM WHICH HE OR SHE IS ENTRUSTED OR TO THE COURT IN WHICH A CUSTODY PROCEEDING IS PENDING. S 4. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.