S T A T E   O F   N E W   Y O R K
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                                  6728

                            I N  S E N A T E

                            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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15373-02-0
              

S. 6728                             2

  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.