Bill S2945-2011

Makes the inability to pay child support an affirmative defense to non-support of child offenses, rather than an element of such offenses

Makes the inability to pay child support an affirmative defense to non-support of child offenses, rather than an element of such offenses.

Details

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

Votes

VOTE: COMMITTEE VOTE: - Codes - May 24, 2011
Ayes (15): Saland, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, Nozzolio, O'Mara, Gianaris, Huntley, Parker, Perkins, Squadron, Espaillat
Ayes W/R (1): Duane
VOTE: COMMITTEE VOTE: - Codes - Mar 20, 2012
Ayes (15): Saland, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, Nozzolio, O'Mara, Gianaris, Duane, Huntley, Perkins, Squadron, Espaillat
Nays (1): Parker

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 2945 2011-2012 Regular Sessions IN 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
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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