Senate Bill S2118

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

                                  2118

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 11, 2009
                               ___________

Introduced  by  Sen.  GOLDEN -- 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
  a care dependent 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 and amended to read as
follows:
S 260.31 Vulnerable elderly OR CARE DEPENDENT persons; definitions.
  For the purpose of sections 260.32 and 260.34  of  this  article,  the
following definitions shall apply:
  1.  "Caregiver"  means a person who (i) assumes responsibility for the
care of a vulnerable elderly OR CARE  DEPENDENT  person  pursuant  to  a
court  order;  or (ii) receives monetary or other valuable consideration
for providing care for a vulnerable elderly OR CARE DEPENDENT person.
  2. "Sexual contact" means any touching of the sexual or other intimate
parts of a person not married to the actor for the purpose of gratifying
sexual desire of either party. It includes the touching of the actor  by
the  victim, as well as the touching of the victim by the actor, whether
directly or through clothing.
  3. "Vulnerable elderly person" means a person sixty years  of  age  or
older  who  is  suffering  from  a disease or infirmity [associated with
advanced  age]  and  manifested  by  demonstrable  physical,  mental  or
emotional  dysfunction  to  the  extent  that the person is incapable of
adequately providing for his or her own health or personal care.
  4. "CARE DEPENDENT PERSON" MEANS ANY PERSON WHO IS A PATIENT OR  RESI-
DENT  OF ANY HOSPITAL, NURSING HOME OR RESIDENTIAL HEALTH CARE FACILITY,
AS THOSE TERMS ARE DEFINED IN SECTION TWENTY-EIGHT HUNDRED  ONE  OF  THE
PUBLIC HEALTH LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04926-01-9

              

S. 2118                             2

  S  2.  Section 260.32 of the penal law, as added by chapter 381 of the
laws of 1998 and subdivision 4 as amended by chapter 1 of  the  laws  of
2000, is amended to read as follows:
S 260.32 Endangering the welfare of a vulnerable elderly OR CARE DEPEND-
             ENT person in the second degree.
  A  person is guilty of endangering the welfare of a vulnerable elderly
OR CARE DEPENDENT person in the second degree when,  being  a  caregiver
for a vulnerable elderly 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 OR CARE  DEPENDENT  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  incapacity  to  consent  because  of  the
victim's  mental  disability  or  mental  incapacity,  the provisions of
section 130.16 of this [chapter] PART 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  OR  CARE  DEPENDENT
person in the second degree is a class E felony.
  S  3.  Section 260.34 of the penal law, as added by chapter 381 of the
laws of 1998, is amended to read as follows:
S 260.34 Endangering the welfare of a vulnerable elderly OR CARE DEPEND-
           ENT person in the first degree.
  A person is guilty of endangering the welfare of a vulnerable  elderly
OR CARE DEPENDENT person in the first degree when, being a caregiver for
a vulnerable elderly OR CARE DEPENDENT 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  OR  CARE  DEPENDENT
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.