Bill S6728-2009

Establishes felony offenses relating to endangering the welfare of an incompetent or physically disabled person

Establishes felony offenses relating to endangering the welfare of an incompetent or physically disabled person; defines "incompetent or physically disabled person" to mean an individual who is unable to care for himself or herself because of a physical disability, mental disease or defect.

Details

Actions

  • Mar 8, 2010: SUBSTITUTED BY A9534
  • Mar 4, 2010: ADVANCED TO THIRD READING
  • Mar 3, 2010: 2ND REPORT CAL.
  • Mar 2, 2010: 1ST REPORT CAL.192
  • Feb 1, 2010: REFERRED TO CODES

Votes

VOTE: COMMITTEE VOTE: - Codes - Mar 2, 2010
Ayes (14): Schneiderman, Breslin, Parker, Huntley, Sampson, Klein, Perkins, Squadron, Volker, Saland, DeFrancisco, Bonacic, Lanza, Flanagan
Ayes W/R (2): Duane, Golden

Memo

 BILL NUMBER:  S6728

TITLE OF BILL : An act to amend the penal law, in relation to endangering the welfare of an incompetent or physically disabled person

PURPOSE : The purpose of this legislation is to criminalize endangering the welfare of an incompetent or physically disabled person.

SUMMARY OF PROVISIONS : Section 1 would renumber section 260.30 of the penal law as section 260.31.

Section 2 would amend subdivision 1 of the newly renumbered section 260.31 of the penal law. The section defines caregiver, sexual contact, vulnerable elderly person and incompetent or physically disabled person.

Section 3 would amend sections 260.32 and 260.34 of the penal law to include incompetent or physically disabled persons within that class of persons whose caregivers would be guilty of a class D or E felony if they endanger the welfare of such persons.

EXISTING LAW : Currently, the protections provided in the applicable penal law sections only apply to vulnerable elderly persons. This bill would extend those protections to incompetent or physically disabled persons.

JUSTIFICATION : Under the existing law, a caregiver of a vulnerable elderly person who endangers that person's welfare is guilty of a class E or class D felony, depending upon the nature and seriousness of the offense, but no such protections extend to persons who are not vulnerable elderly persons, but who are, nonetheless, incapable of taking care of themselves and entrusted to the care of others as a result of being incompetent or physically disabled. They are as vulnerable as elderly persons in, such care, and must be afforded similar protections.

The Governor vetoed a version of this legislation in 2009 (A. 6349). To address the core objection of that veto, the bill now clearly defines "incompetent or physically disabled person" using the concepts and language already encompassed in Penal Law § 260.25. The prosecution has had no apparent difficulty in establishing guilt utilizing this definition. See People v. Rolston, 190 A.D.2d 1000, 593 N.Y.S.2d 383 (4t Dept. 1993), leave to appeal denied 81 N.Y.2d 1019 (1993). Case law has interpreted the term "mental disease or defect" in PL 260.25 to encompass persons with developmental disabilities. See People v. Jordal, 294 A.D.2d 953, 742 N.Y.S.2d 760 (4th Dept. 2002), See People v. Novak, 212 A.D.2d 740, 740-741, 622 N.Y.S.2d 783 (2d Dept. 1995) See also People v. Patterson, 165 A.D.2d 886, 886-887, 560 N.Y.S.2d 357(2d Dept 1990).

LEGISLATIVE HISTORY : 2007-2008: A.9309-A Passed Assembly 2009 A.6349 Passed Assembly and Senate; Vetoed at Memo No. 69

FISCAL IMPLICATIONS : None.

EFFECTIVE DATE : This act shall take effect on the sixtieth day after it shall have become a law.

Text

STATE OF NEW YORK ________________________________________________________________________ 6728 IN SENATE February 1, 2010 ___________
Introduced by Sens. HUNTLEY, MORAHAN, ESPADA -- 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 endangering the welfare of an incompetent or physically disabled person THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 260.30 of the penal law, as added by chapter 381 of the laws of 1998, is renumbered section 260.31. S 2. Subdivision 1 of section 260.31 of the penal law, as added by chapter 381 of the laws of 1998, such section as renumbered by section one of this act, is amended and a new subdivision 4 is added to read as follows: 1. "Caregiver" means a person who (i) assumes responsibility for the care of a vulnerable elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON pursuant to a court order; or (ii) receives monetary or other valuable consideration for providing care for a vulnerable elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON. 4. "INCOMPETENT OR PHYSICALLY DISABLED PERSON" MEANS AN INDIVIDUAL WHO IS UNABLE TO CARE FOR HIMSELF OR HERSELF BECAUSE OF PHYSICAL DISABILITY, MENTAL DISEASE OR DEFECT. S 3. Sections 260.32 and 260.34 of the penal law, as added by chapter 381 of the laws of 1998, subdivision 4 of section 260.32 as amended by chapter 1 of the laws of 2000, are amended to read as follows: S 260.32 Endangering the welfare of a vulnerable elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON in the second degree. A person is guilty of endangering the welfare of a vulnerable elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON in the second degree when, being a caregiver for a vulnerable elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON: 1. With intent to cause physical injury to such person, he or she causes such injury to such person; or 2. He or she recklessly causes physical injury to such person; or
3. With criminal negligence, he or she causes physical injury to such person by means of a deadly weapon or a dangerous instrument; or 4. He or she subjects such person to sexual contact without the latter's consent. Lack of consent under this subdivision results from forcible compulsion or incapacity to consent, as those terms are defined in article one hundred thirty of this chapter, or any other circum- stances in which the vulnerable elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON does not expressly or impliedly acquiesce in the caregiver's conduct. In any prosecution under this subdivision in which the victim's alleged lack of consent results solely from incapaci- ty to consent because of the victim's mental disability or mental inca- pacity, the provisions of section 130.16 of this chapter shall apply. In addition, in any prosecution under this subdivision in which the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent. Endangering the welfare of a vulnerable elderly person, OR AN INCOMPE- TENT OR PHYSICALLY DISABLED PERSON in the second degree is a class E felony. S 260.34 Endangering the welfare of a vulnerable elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON in the first degree. A person is guilty of endangering the welfare of a vulnerable elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON in the first degree when, being a caregiver for a vulnerable elderly person, OR AN INCOMPETENT OR PHYSICALLY DISABLED PERSON: 1. With intent to cause physical injury to such person, he or she causes serious physical injury to such person; or 2. He or she recklessly causes serious physical injury to such person. Endangering the welfare of a vulnerable elderly person, OR AN INCOMPE- TENT OR PHYSICALLY DISABLED PERSON in the first degree is a class D felony. S 4. This act shall take effect on the sixtieth day after it shall have become a law.

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