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S2945-2011 Actions

• Mar 29, 2012: referred to codes
• Mar 29, 2012: DELIVERED TO ASSEMBLY
• Mar 29, 2012: PASSED SENATE
• Mar 22, 2012: ADVANCED TO THIRD READING
• Mar 21, 2012: 2ND REPORT CAL.
• Mar 20, 2012: 1ST REPORT CAL.419
• Jan 4, 2012: REFERRED TO CODES
• Jan 4, 2012: returned to senate
• Jan 4, 2012: died in assembly
• Jun 15, 2011: referred to codes
• Jun 15, 2011: DELIVERED TO ASSEMBLY
• Jun 15, 2011: PASSED SENATE
• Jun 1, 2011: ADVANCED TO THIRD READING
• May 25, 2011: 2ND REPORT CAL.
• May 24, 2011: 1ST REPORT CAL.803
• Feb 3, 2011: REFERRED TO CODES

S2945-2011 Meetings

Codes: Mar 20, 2012, Codes: May 24, 2011

S2945-2011 Calendars

Active List: Mar 29, 2012 , Active List: Jun 15, 2011 , Floor Calendar: Mar 21, 2012 , Floor Calendar: Mar 22, 2012 , Floor Calendar: Mar 26, 2012 , Floor Calendar: Mar 27, 2012 , Floor Calendar: Mar 28, 2012 , Floor Calendar: Mar 29, 2012 , Floor Calendar: May 25, 2011 , Floor Calendar: Jun 1, 2011 , Floor Calendar: Jun 2, 2011 , Floor Calendar: Jun 6, 2011 , Floor Calendar: Jun 7, 2011 , Floor Calendar: Jun 13, 2011 , Floor Calendar: Jun 14, 2011 , Floor Calendar: Jun 15, 2011

S2945-2011 Votes

S2945-2011 Memo

BILL NUMBER:S2945

TITLE OF BILL:
An act
to amend the penal law, in relation to non-support of a child

PURPOSE:
Requires a delinquent parent to demonstrate as an affirmative defense
that the inability to pay excuses his or her failure to provide child
support for their minor child.

SUMMARY OF PROVISION:
Section one amends sections 260.05 & 260.06 of the penal law by
deleting the defendant's ability to pay from the definition of the
offense found in such sections and adds to both sections a new
provision that allows a defendant to show inability to pay as an
affirmative defense.

JUSTIFICATION:
Persons who are legally obligated to provide child support should not
be permitted to escape criminal prosecution where they have
deliberately taken action to avoid paying child support by engaging
in wasteful personal spending and concealment of funds. Currently,
parents guilty of the crime of non-support of a child may escape
criminal liability simply because the prosecutor is tasked with
proving the unknowable, that is, the parent's ability to pay. The
ability to pay is an inherently subjective question which requires
that the prosecutor submit evidence not only of the parent's income
and spending but proof which distinguishes between legitimate
expenses and wasteful spending. This amendment will rightly place the
burden of proving inability to pay on the parent, who alone possesses
the necessary information to answer that question.

LEGISLATIVE HISTORY:
2010: S.7004 - Referred to Codes/A.10169 - Referred to Codes

FISCAL IMPLICATION:
None.

EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding
the date on which it shall have become a law.

S2945-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         2945
 2011-2012 Regular Sessions
 I N  SENATE
 February 3, 2011
 
 Introduced  by  Sen.  LANZA  -- 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 non-support of a child
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.

Section 260.05 of the penal law, as amended by chapter 397
 of the laws of 1997, the opening paragraph and subdivision 1 as  amended
 and subdivision 2 as added by chapter 70 of the laws of 2008, is amended
 to read as follows:

 

S 260.05 Non-support of a child in the second degree.
 A person is guilty of non-support of a child when:

 1.  being  a parent, guardian or other person legally charged with the
 care or custody of a child less than sixteen years old, he or she  fails
 or refuses without lawful excuse to provide support for such child [when
 he  or  she  is  able to do so, or becomes unable to do so, when, though
 employable, he or she voluntarily  terminates  his  or  her  employment,
 voluntarily  reduces his or her earning capacity, or fails to diligently
 seek employment]; or
 2. being a parent, guardian or other person obligated  to  make  child
 support  payments  by  an  order  of child support entered by a court of
 competent jurisdiction for a child less than eighteen years old,  he  or
 she  knowingly fails or refuses without lawful excuse to provide support
 for such child [when he or she is able to do so, or becomes unable to do
 so, when, though employable, he or she voluntarily terminates his or her
 employment, voluntarily reduces his or her earning capacity, or fails to
 diligently seek employment].
 IN ANY PROSECUTION UNDER THIS SECTION, IT IS  AN  AFFIRMATIVE  DEFENSE
 THAT THE DEFENDANT IS UNABLE TO PROVIDE SUPPORT FOR THE CHILD.  PROVIDED
 THAT  NOTHING  IN  THIS PARAGRAPH SHALL CONSTITUTE A DEFENSE TO A PROSE
 CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION
 WHERE THE DEFENDANT BECOMES  UNABLE  TO  PROVIDE  SUPPORT  WHEN,  THOUGH
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD04788-01-1
 
       S. 2945                             2
 EMPLOYABLE,  HE  OR  SHE  VOLUNTARILY  TERMINATES HIS OR HER EMPLOYMENT,
 VOLUNTARILY REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO  DILIGENTLY
 SEEK EMPLOYMENT.
 Non-support of a child in the second degree is a class A misdemeanor.
 

S  2.

Section 260.06 of the penal law, as amended by chapter 70 of the
 laws of 2008, is amended to read as follows:

 

S 260.06 Non-support of a child in the first degree.
 A person is guilty of non-support of a child in the first degree when:

 1. (a) being a parent, guardian or other person legally  charged  with
 the  care  or  custody of a child less than sixteen years old, he or she
 fails or refuses without lawful excuse to provide support for such child
 [when he or she is able to do so]; or
 (b) being a parent, guardian or other person obligated to  make  child
 support  payments  by  an  order  of child support entered by a court of
 competent jurisdiction for a child less than eighteen years old,  he  or
 she  fails  or refuses without lawful excuse to provide support for such
 child [when he or she is able to do so]; and
 2. he or she has previously been convicted in the preceding five years
 of a [crime defined in] VIOLATION OF section 260.05 of this  article  or
 [a crime defined by the provisions] of this section.
 IN  ANY  PROSECUTION  UNDER THIS SECTION, IT IS AN AFFIRMATIVE DEFENSE
 THAT THE DEFENDANT IS UNABLE TO PROVIDE SUPPORT FOR THE CHILD.  PROVIDED
 THAT NOTHING IN THIS PARAGRAPH SHALL CONSTITUTE A DEFENSE  TO  A  PROSE
 CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION
 WHERE  THE  DEFENDANT  BECOMES  UNABLE  TO  PROVIDE SUPPORT WHEN, THOUGH
 EMPLOYABLE, HE OR SHE VOLUNTARILY  TERMINATES  HIS  OR  HER  EMPLOYMENT,
 VOLUNTARILY  REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO DILIGENTLY
 SEEK EMPLOYMENT.
 Non-support of a child in the first degree is a class E felony.
 

S 3. This act shall take effect on the first of November next succeed
 ing the date on which it shall have become a law.

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