S T A T E O F N E W Y O R K
2011-2012 Regular Sessions
I N S E N A T E
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
S 135.45 Custodial interference in the second degree.
A person is guilty of custodial interference in the second degree
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-
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 Section 135.50 of the penal law is REPEALED and a new section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.
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
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
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.