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

                                  1505

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 10, 2011
                               ___________

Introduced  by  M. of A. TEDISCO, RAIA, TOBACCO, BOYLE, HAWLEY -- Multi-
  Sponsored by -- M. of A. AMEDORE, BARCLAY, BURLING,  BUTLER,  CALHOUN,
  CONTE,  CROUCH,  DUPREY,  FINCH,  FITZPATRICK,  GIGLIO, HAYES, JORDAN,
  KOLB,  P. LOPEZ,  McDONOUGH,  McKEVITT,  J. MILLER,  MOLINARO,   OAKS,
  RABBITT,  REILICH,  SALADINO,  SAYWARD, SPANO, THIELE -- read once and
  referred to the Committee on Codes

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation to crimes against vulnerable elderly or disabled persons

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 260.31 of the penal law, as added by chapter 381 of
the laws of 1998, subdivision 1 as amended, subdivision 4 as  added  and
such section as renumbered by chapter 14 of the laws of 2010, and subdi-
vision  2  as  amended by chapter 193 of the laws of 2010, is amended to
read as follows:
 S 260.31 Vulnerable elderly 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 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.
  2.] "Sexual contact" means any touching of the sexual or  other  inti-
mate  parts  of  a person 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, as well as the emission of ejaculate by the actor upon
any part of the victim, clothed or unclothed.
  [3.] 2. "Vulnerable elderly person" means a person sixty years of  age
or  older  who  is suffering from a disease or infirmity associated with

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02035-01-1
              

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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  OR  A
PERSON SEVENTY YEARS OF AGE OR OLDER.
  [4.]  3. "Incompetent or physically disabled person" means an individ-
ual who is unable to care for himself or  herself  because  of  physical
disability, mental disease or defect.
  S  2. The opening paragraph and subdivision 4 of section 260.32 of the
penal law, as amended by chapter 14 of the laws of 2010, are amended  to
read as follows:
  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]:
  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]  PART,  or  any  other
circumstances  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  inca-
pacity  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 inca-
pacity 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.
  S  3.  The  opening  paragraph  of section 260.34 of the penal law, as
amended by chapter 14 of the  laws  of  2010,  is  amended  to  read  as
follows:
  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]:
  S 4. Paragraphs (c) and (d) of subdivision 1 of section 70.02  of  the
penal  law,  paragraph (c) as amended by chapter 405 of the laws of 2010
and paragraph (d) as amended by chapter 7  of  the  laws  of  2007,  are
amended to read as follows:
  (c)  Class  D violent felony offenses: an attempt to commit any of the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section 120.18, stalking in the first degree, as defined in  subdivision
one  of section 120.60, strangulation in the second degree as defined in
section 121.12, rape in the second degree as defined in section  130.30,
criminal  sexual  act in the second degree as defined in section 130.45,
sexual abuse in the first degree as defined in section 130.65, course of
sexual conduct against a child  in  the  second  degree  as  defined  in
section  130.80,  aggravated sexual abuse in the third degree as defined
in  section  130.66,  facilitating  a  sex  offense  with  a  controlled
substance  as defined in section 130.90, criminal possession of a weapon
in the third degree as defined in subdivision five, six, seven or  eight

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of  section  265.02,  criminal  sale of a firearm in the third degree as
defined in section 265.11, intimidating  a  victim  or  witness  in  the
second degree as defined in section 215.16, ENDANGERING THE WELFARE OF A
VULNERABLE  ELDERLY  PERSON  IN  THE  FIRST DEGREE AS DEFINED IN SECTION
260.34, soliciting or providing support for an act of terrorism  in  the
second  degree  as  defined  in section 490.10, and making a terroristic
threat as defined in section 490.20, falsely reporting  an  incident  in
the  first  degree as defined in section 240.60, placing a false bomb or
hazardous substance in the first degree as defined  in  section  240.62,
placing  a  false  bomb  or  hazardous  substance in a sports stadium or
arena, mass transportation facility or enclosed shopping mall as defined
in section 240.63, and aggravated unpermitted use of indoor pyrotechnics
in the first degree as defined in section 405.18.
  (d) Class E violent felony offenses:   ENDANGERING THE  WELFARE  OF  A
VULNERABLE  ELDERLY  PERSON  IN  THE SECOND DEGREE AS DEFINED IN SECTION
260.32, an attempt to commit any of the felonies of criminal  possession
of  a  weapon  in  the third degree as defined in subdivision five, six,
seven or eight of section 265.02 as a lesser included  offense  of  that
section  as  defined  in  section  220.20 of the criminal procedure law,
persistent sexual abuse as defined in section 130.53, aggravated  sexual
abuse  in  the  fourth  degree  as  defined in section 130.65-a, falsely
reporting an incident in the second degree as defined in section  240.55
and  placing a false bomb or hazardous substance in the second degree as
defined in section 240.61.
  S 5. Part 4 of the penal law is amended by adding a new title  Y-2  to
read as follows:
                                TITLE Y-2
                           CRIMES AGAINST THE
                           ELDERLY OR DISABLED
                               ARTICLE 495
                           CRIMES AGAINST THE
                           ELDERLY OR DISABLED
SECTION 495.00 CRIMES AGAINST THE ELDERLY OR DISABLED.
        495.05 SENTENCING.
S 495.00 CRIMES AGAINST THE ELDERLY OR DISABLED.
  1. A PERSON COMMITS A CRIME AGAINST THE ELDERLY OR DISABLED WHEN HE OR
SHE COMMITS A SPECIFIED OFFENSE AND EITHER:
  (A)  INTENTIONALLY  SELECTS  THE  PERSON  AGAINST  WHOM THE OFFENSE IS
COMMITTED OR INTENDED TO BE COMMITTED IN WHOLE OR  IN  SUBSTANTIAL  PART
BECAUSE OF A BELIEF OR PERCEPTION REGARDING THE DISABILITY STATUS OR AGE
RELATED  INFIRMITY  OR  DISEASE  OF  A PERSON, REGARDLESS OF WHETHER THE
BELIEF OR PERCEPTION IS CORRECT; OR
  (B) INTENTIONALLY COMMITS THE ACT OR ACTS CONSTITUTING THE OFFENSE  IN
WHOLE OR IN SUBSTANTIAL PART BECAUSE OF A BELIEF OR PERCEPTION REGARDING
DISABILITY  STATUS  OR  AGE  RELATED  INFIRMITY  OR DISEASE OF A PERSON,
REGARDLESS OF WHETHER THE BELIEF OR PERCEPTION IS CORRECT.
  2. FOR THE PURPOSE OF THIS  SECTION:  (A)  WHEN  A  PERSON  REASONABLY
APPEARS  TO  HAVE  A  DISABILITY OR AN AGE RELATED INFIRMITY OR DISEASE,
THERE SHALL BE A  REBUTTABLE  PRESUMPTION  THE  DEFENDANT  SELECTED  THE
PERSON  AGAINST  WHOM  THE OFFENSE OR ACT IS COMMITTED OR INTENDED TO BE
COMMITTED, IN WHOLE OR IN PART BECAUSE OF A BELIEF OR PERCEPTION REGARD-
ING THE DISABILITY STATUS OR AGE RELATED INFIRMITY OR  DISEASE  OF  SUCH
PERSON;  AND (B) WHEN A PERSON IS SEVENTY YEARS OLD OR MORE, THERE SHALL
BE A REBUTTABLE PRESUMPTION THAT SUCH PERSON APPEARS TO HAVE A DISABILI-
TY OR AN AGE RELATED INFIRMITY.

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  3. A "SPECIFIED OFFENSE" IS AN OFFENSE DEFINED BY ANY OF THE FOLLOWING
PROVISIONS OF  THIS  CHAPTER:  SECTION  120.00  (ASSAULT  IN  THE  THIRD
DEGREE);  SECTION  120.05 (ASSAULT IN THE SECOND DEGREE); SECTION 120.10
(ASSAULT IN THE FIRST DEGREE); SECTION 120.12 (AGGRAVATED ASSAULT UPON A
PERSON  LESS  THAN  ELEVEN  YEARS  OLD); SECTION 120.13 (MENACING IN THE
FIRST DEGREE); SECTION 120.14 (MENACING IN THE SECOND  DEGREE);  SECTION
120.15  (MENACING  IN THE THIRD DEGREE); SECTION 120.20 (RECKLESS ENDAN-
GERMENT IN THE SECOND DEGREE); SECTION 120.25 (RECKLESS ENDANGERMENT  IN
THE  FIRST  DEGREE);  SECTION  120.45  (STALKING  IN THE FOURTH DEGREE);
SECTION 120.50 (STALKING IN THE THIRD DEGREE); SECTION 120.55  (STALKING
IN  THE  SECOND  DEGREE); SECTION 120.60 (STALKING IN THE FIRST DEGREE);
SUBDIVISION ONE OF SECTION 125.15 (MANSLAUGHTER IN THE  SECOND  DEGREE);
SUBDIVISION  ONE,  TWO  OR  FOUR  OF SECTION 125.20 (MANSLAUGHTER IN THE
FIRST DEGREE); SECTION 125.25 (MURDER IN THE SECOND DEGREE); SUBDIVISION
ONE OF SECTION 130.35 (RAPE IN THE FIRST  DEGREE);  SUBDIVISION  ONE  OF
SECTION  130.50  (CRIMINAL  SEXUAL ACT IN THE FIRST DEGREE); SUBDIVISION
ONE OF SECTION 130.65 (SEXUAL ABUSE IN THE FIRST DEGREE); PARAGRAPH  (A)
OF  SUBDIVISION  ONE  OF  SECTION 130.67 (AGGRAVATED SEXUAL ABUSE IN THE
SECOND DEGREE); PARAGRAPH (A)  OF  SUBDIVISION  ONE  OF  SECTION  130.70
(AGGRAVATED  SEXUAL ABUSE IN THE FIRST DEGREE); SECTION 135.05 (UNLAWFUL
IMPRISONMENT IN THE SECOND DEGREE); SECTION 135.10  (UNLAWFUL  IMPRISON-
MENT  IN  THE  FIRST  DEGREE);  SECTION 135.20 (KIDNAPPING IN THE SECOND
DEGREE); SECTION 135.25 (KIDNAPPING IN THE FIRST DEGREE); SECTION 135.60
(COERCION IN THE SECOND DEGREE); SECTION 135.65 (COERCION IN  THE  FIRST
DEGREE); SECTION 140.10 (CRIMINAL TRESPASS IN THE THIRD DEGREE); SECTION
140.15  (CRIMINAL TRESPASS IN THE SECOND DEGREE); SECTION 140.17 (CRIMI-
NAL TRESPASS IN THE FIRST DEGREE); SECTION 140.20 (BURGLARY IN THE THIRD
DEGREE); SECTION 140.25 (BURGLARY IN THE SECOND DEGREE); SECTION  140.30
(BURGLARY IN THE FIRST DEGREE); SECTION 145.00 (CRIMINAL MISCHIEF IN THE
FOURTH  DEGREE); SECTION 145.05 (CRIMINAL MISCHIEF IN THE THIRD DEGREE);
SECTION 145.10 (CRIMINAL MISCHIEF IN THE SECOND DEGREE); SECTION  145.12
(CRIMINAL  MISCHIEF  IN  THE FIRST DEGREE); SECTION 150.05 (ARSON IN THE
FOURTH DEGREE); SECTION 150.10 (ARSON  IN  THE  THIRD  DEGREE);  SECTION
150.15  (ARSON IN THE SECOND DEGREE); SECTION 150.20 (ARSON IN THE FIRST
DEGREE); SECTION 155.25 (PETIT LARCENY); SECTION 155.30  (GRAND  LARCENY
IN  THE  FOURTH  DEGREE);  SECTION  155.35  (GRAND  LARCENY IN THE THIRD
DEGREE); SECTION 155.40 (GRAND LARCENY IN THE  SECOND  DEGREE);  SECTION
155.42  (GRAND  LARCENY IN THE FIRST DEGREE); SECTION 160.05 (ROBBERY IN
THE THIRD DEGREE);  SECTION  160.10  (ROBBERY  IN  THE  SECOND  DEGREE);
SECTION 160.15 (ROBBERY IN THE FIRST DEGREE); SECTION 240.25 (HARASSMENT
IN  THE  FIRST  DEGREE);  SUBDIVISION ONE, TWO OR FOUR OF SECTION 240.30
(AGGRAVATED HARASSMENT IN THE SECOND DEGREE); OR ANY ATTEMPT OR CONSPIR-
ACY TO COMMIT ANY OF THE FOREGOING OFFENSES.
  4. FOR THE PURPOSES OF THIS SECTION:
  (A) A PERSON HAS AN AGE RELATED INFIRMITY OR DISEASE WHEN, BEING SIXTY
YEARS OLD OR MORE, SUCH PERSON HAS  A  PHYSICAL  OR  MENTAL  DISEASE  OR
INFIRMITY,  TYPICALLY  ASSOCIATED WITH ADVANCED AGE, WHICH SUBSTANTIALLY
LIMITS A MAJOR LIFE ACTIVITY;
  (B) THE TERM "SUBSTANTIAL PART" INCLUDES BUT IS NOT LIMITED TO CIRCUM-
STANCES IN WHICH A DEFENDANT SELECTS A PERSON AGAINST WHOM TO COMMIT  OR
ATTEMPT TO COMMIT A CRIME DUE TO A BELIEF OR PERCEPTION THAT SUCH PERSON
IS  LESS  LIKELY  TO RESIST OR BE ABLE TO RESIST SUCH CRIME DUE TO THEIR
DISABILITY OR AGE RELATED INFIRMITY OR DISEASE,  REGARDLESS  OF  WHETHER
SUCH BELIEF OR PERCEPTION IS CORRECT;
  (C)  THE  TERM "DISABILITY" MEANS A PHYSICAL OR MENTAL IMPAIRMENT THAT
SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY; AND

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  (D) THE TERM "RESIST" INCLUDES, IN ADDITION TO  ITS  REGULAR  MEANING,
REPORTING  SUCH  CRIME  TO  LAW  ENFORCEMENT,  OBSERVING,  RECALLING, OR
REPORTING KEY FEATURES OF ANY  ACT  OR  CHARACTERISTIC  OF  A  DEFENDANT
RELATED TO SUCH CRIME, OR PROVIDING EVIDENCE TO AID IN THE INVESTIGATION
OR PROSECUTION OF SUCH CRIME.
S 495.05 SENTENCING.
  1.  WHEN A PERSON IS CONVICTED OF A CRIME AGAINST THE ELDERLY OR DISA-
BLED PURSUANT TO THIS ARTICLE, AND THE SPECIFIED OFFENSE  IS  A  VIOLENT
FELONY  OFFENSE,  AS DEFINED IN SECTION 70.02 OF THIS CHAPTER, THE CRIME
AGAINST THE ELDERLY  OR  DISABLED  SHALL  BE  DEEMED  A  VIOLENT  FELONY
OFFENSE.
  2.  WHEN A PERSON IS CONVICTED OF A CRIME AGAINST THE ELDERLY OR DISA-
BLED PURSUANT TO THIS ARTICLE AND THE SPECIFIED OFFENSE IS A MISDEMEANOR
OR A CLASS C, D OR E FELONY, THE CRIME AGAINST THE ELDERLY  OR  DISABLED
SHALL BE DEEMED TO BE ONE CATEGORY HIGHER THAN THE SPECIFIED OFFENSE THE
DEFENDANT  COMMITTED,  OR  ONE  CATEGORY  HIGHER  THAN THE OFFENSE LEVEL
APPLICABLE TO THE DEFENDANT'S CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO
COMMIT A SPECIFIED OFFENSE, WHICHEVER IS APPLICABLE.
  3. NOTWITHSTANDING ANY OTHER  PROVISION  OF  LAW,  WHEN  A  PERSON  IS
CONVICTED  OF  A  CRIME AGAINST THE ELDERLY OR DISABLED PURSUANT TO THIS
ARTICLE AND THE SPECIFIED OFFENSE IS A CLASS B FELONY OFFENSE:
  (A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST  BE  AT  LEAST
SIX  YEARS  IF  THE  DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.00 OF
THIS CHAPTER;
  (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT  YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
  (C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
  (D)  THE  MAXIMUM  TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO  SECTION  70.05  OF
THIS CHAPTER; AND
  (E)  THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
DETERMINATE SENTENCE MUST BE AT LEAST TEN  YEARS  IF  THE  DEFENDANT  IS
SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
  4.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHEN A PERSON IS
CONVICTED OF CRIME AGAINST THE ELDERLY  OR  DISABLED  PURSUANT  TO  THIS
ARTICLE  AND  THE  SPECIFIED  OFFENSE IS A CLASS A-1 FELONY, THE MINIMUM
PERIOD OF THE INDETERMINATE SENTENCE  SHALL  BE  NOT  LESS  THAN  TWENTY
YEARS.
  S  6. Subdivisions 4 and 7 of section 200.50 of the criminal procedure
law, as amended by chapter 7 of the laws of 2007, are amended to read as
follows:
  4. A statement in each count that the grand jury, or, where the  accu-
satory  instrument  is a superior court information, the district attor-
ney, accuses the  defendant  or  defendants  of  a  designated  offense,
provided  that in any prosecution under article four hundred eighty-five
of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section  485.05  of  the  penal  law,
followed by the phrase "as a hate crime", [and] provided further that in
any  prosecution  under  section 490.25 of the penal law, the designated
offense shall be the specified offense, as defined in subdivision  three
of  section  490.05 of the penal law, followed by the phrase "as a crime
of terrorism"; AND  PROVIDED  FURTHER  THAT  IN  ANY  PROSECUTION  UNDER
SECTION  495.00  OF  THE  PENAL LAW, THE DESIGNATED OFFENSE SHALL BE THE
SPECIFIED OFFENSE, AS DEFINED IN SUBDIVISION THREE OF SECTION 495.00  OF
THE PENAL LAW, FOLLOWED BY THE PHRASE "AS A CRIME AGAINST THE ELDERLY OR

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DISABLED";  and  provided  further that in any prosecution under section
130.91 of the penal law, the designated offense shall be  the  specified
offense,  as  defined  in subdivision two of section 130.91 of the penal
law, followed by the phrase "as a sexually motivated felony"; and
  7.  A plain and concise factual statement in each count which, without
allegations of an evidentiary nature,
  (a) asserts facts supporting every element of the offense charged  and
the defendant's or defendants' commission thereof with sufficient preci-
sion to clearly apprise the defendant or defendants of the conduct which
is the subject of the accusation; and
  (b)  in the case of any armed felony, as defined in subdivision forty-
one of section 1.20, states that such offense is  an  armed  felony  and
specifies   the   particular   implement  the  defendant  or  defendants
possessed, were armed with, used or displayed or,  in  the  case  of  an
implement displayed, specifies what the implement appeared to be; and
  (c) in the case of any hate crime, as defined in section 485.05 of the
penal  law,  specifies,  as applicable, that the defendant or defendants
intentionally selected the person against whom the offense was committed
or intended to be committed; or intentionally committed the act or  acts
constituting  the  offense, in whole or in substantial part because of a
belief or perception regarding the race, color, national origin,  ances-
try,  gender,  religion,  religious  practice, age, disability or sexual
orientation of a person; and
  (d) in the case of a crime of terrorism, as defined in section  490.25
of  the  penal  law,  specifies,  as  applicable,  that the defendant or
defendants acted with intent to intimidate or coerce  a  civilian  popu-
lation,  influence the policy of a unit of government by intimidation or
coercion, or affect the conduct of  a  unit  of  government  by  murder,
assassination or kidnapping; and
  (e)  in the case of a sexually motivated felony, as defined in section
130.91 of the penal law, asserts facts supporting  the  allegation  that
the offense was sexually motivated; and
  (F)  IN  THE  CASE  OF  ANY  CRIME AGAINST THE ELDERLY OR DISABLED, AS
DEFINED IN SECTION 495.00 OF THE PENAL LAW,  SPECIFIES,  AS  APPLICABLE,
THAT  THE  DEFENDANT  OR  DEFENDANTS  INTENTIONALLY  SELECTED THE PERSON
AGAINST WHOM THE OFFENSE WAS COMMITTED OR INTENDED TO BE  COMMITTED;  OR
INTENTIONALLY  COMMITTED  THE  ACT  OR ACTS CONSTITUTING THE OFFENSE, IN
WHOLE OR IN SUBSTANTIAL PART BECAUSE OF A BELIEF OR PERCEPTION REGARDING
THE DISABILITY STATUS OR AGE RELATED INFIRMITY OR DISEASE OF  A  PERSON;
AND
  S 7. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.