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

                                  6349

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              March 2, 2009
                               ___________

Introduced by M. of A. GORDON -- read once and referred 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 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.
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06395-01-9
              

A. 6349                             2

  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 first of November next succeed-
ing the date on which it shall have become a law.