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

                                  5208

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced  by Sens. HUNTLEY, BRESLIN -- 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 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
              

S. 5208                             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.