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

                                  4509

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 3, 2011
                               ___________

Introduced  by M. of A. TITONE, TOBACCO -- read once and referred to the
  Committee on Codes

AN ACT to amend the penal law, in relation to the crime  of  endangering
  the  welfare  of  a child and to create a new crime of endangering the
  welfare of a child in the first degree

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

  Section 1.  Section 260.10 of the penal law, as amended by chapter 447
of the laws of 2010, is amended to read as follows:
S 260.10 Endangering the welfare of a child IN THE SECOND DEGREE.
  A person is guilty of endangering the welfare of a child IN THE SECOND
DEGREE when:
  1.  He or she knowingly acts in a manner likely to be injurious to the
physical, mental or moral welfare of a child less than  seventeen  years
old  or  directs  or  authorizes  such  child to engage in an occupation
involving a substantial risk of danger to his or her life or health; or
  2. Being a parent, guardian or other person legally charged  with  the
care or custody of a child less than eighteen years old, he or she fails
or refuses to exercise reasonable diligence in the control of such child
to  prevent  him  or  her  from becoming an "abused child," a "neglected
child," a "juvenile delinquent" or a "person in need of supervision," as
those terms are defined in articles ten, three and seven of  the  family
court act.
  3. A person is not guilty of the provisions of this section when he or
she  engages  in  the  conduct  described  in subdivision one of section
260.00 of this article: (a) with the intent to wholly abandon the  child
by relinquishing responsibility for and right to the care and custody of
such  child;  (b)  with  the intent that the child be safe from physical
injury and cared for in an appropriate manner; (c)  the  child  is  left
with an appropriate person, or in a suitable location and the person who

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01942-01-1

              

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leaves  the child promptly notifies an appropriate person of the child's
location; and (d) the child is not more than thirty days old.
  Endangering  the  welfare of a child IN THE SECOND DEGREE is a class A
misdemeanor.
  S 2. Section 260.11 of the penal law is renumbered section 260.12.
  S 3. The penal law is amended by adding a new section 260.11  to  read
as follows:
S 260.11 ENDANGERING THE WELFARE OF A CHILD IN THE FIRST DEGREE.
  A  PERSON IS GUILTY OF ENDANGERING THE WELFARE OF A CHILD IN THE FIRST
DEGREE WHEN:
  1. HE OR SHE KNOWINGLY ACTS IN A MANNER WHICH CREATES A RISK OF EITHER
SERIOUS PHYSICAL  INJURY  OR  PROLONGED  IMPAIRMENT  OF  THE  MENTAL  OR
EMOTIONAL CONDITION OF A CHILD LESS THAN SEVENTEEN YEARS OLD; OR
  2. HE OR SHE COMMITS THE OFFENSE OF ENDANGERING THE WELFARE OF A CHILD
IN THE SECOND DEGREE, WHEN:
  (A) THE CHILD IS LESS THAN ELEVEN YEARS OLD; OR
  (B) THE CHILD SUFFERED PHYSICAL INJURY; OR
  (C)  HE  OR  SHE HAS PREVIOUSLY BEEN CONVICTED OF ANY OF THE FOLLOWING
OFFENSES:  ENDANGERING THE WELFARE OF A CHILD IN THE  SECOND  DEGREE  AS
DEFINED  IN  SECTION  260.10;  ENDANGERING THE WELFARE OF A CHILD IN THE
FIRST DEGREE AS DEFINED IN THIS  SECTION;  ABANDONMENT  OF  A  CHILD  AS
DEFINED  IN  SECTION  260.00; ASSAULT IN THE SECOND DEGREE AS DEFINED IN
SUBDIVISION EIGHT OR NINE OF SECTION 120.05; AGGRAVATED ASSAULT  UPON  A
PERSON  LESS  THAN  ELEVEN  YEARS  OLD  AS  DEFINED  IN  SECTION 120.12;
MANSLAUGHTER IN THE FIRST DEGREE  AS  DEFINED  IN  SUBDIVISION  FOUR  OF
SECTION  125.20;  MURDER  IN THE SECOND DEGREE AS DEFINED IN SUBDIVISION
FOUR OF SECTION 125.25; RAPE IN THE THIRD DEGREE AS DEFINED IN  SUBDIVI-
SION  TWO  OF  SECTION  130.25;  RAPE IN THE SECOND DEGREE AS DEFINED IN
SECTION 130.30; RAPE IN THE FIRST DEGREE AS DEFINED IN SUBDIVISION THREE
OF SECTION 130.35; CRIMINAL SEXUAL ACT IN THE THIRD DEGREE AS DEFINED IN
SUBDIVISION TWO OF SECTION 130.40; CRIMINAL SEXUAL  ACT  IN  THE  SECOND
DEGREE  AS  DEFINED  IN SECTION 130.45; CRIMINAL SEXUAL ACT IN THE FIRST
DEGREE AS DEFINED IN SUBDIVISION THREE OF SECTION 130.50;  SEXUAL  ABUSE
IN  THE  SECOND  DEGREE AS DEFINED IN SUBDIVISION TWO OF SECTION 130.60;
SEXUAL ABUSE IN THE FIRST DEGREE AS  DEFINED  IN  SUBDIVISION  THREE  OF
SECTION  130.65;  AGGRAVATED SEXUAL ABUSE IN THE THIRD DEGREE AS DEFINED
IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 130.66; AGGRAVATED SEXUAL
ABUSE IN THE SECOND DEGREE AS DEFINED IN PARAGRAPH  (C)  OF  SUBDIVISION
ONE  OF  SECTION  130.67; AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE AS
DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 130.70; COURSE OF
SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST DEGREE AS DEFINED IN SECTION
130.75; COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE SECOND DEGREE AS
DEFINED IN SECTION 130.80; DISSEMINATING INDECENT MATERIAL TO MINORS  IN
THE  SECOND  DEGREE AS DEFINED IN SECTION 235.21; DISSEMINATING INDECENT
MATERIAL TO MINORS IN THE FIRST DEGREE AS DEFINED IN SECTION 235.22; USE
OF A CHILD IN A SEXUAL PERFORMANCE AS DEFINED IN SECTION 263.05; PROMOT-
ING AN OBSCENE SEXUAL PERFORMANCE BY  A  CHILD  AS  DEFINED  IN  SECTION
263.10;  POSSESSING  AN OBSCENE SEXUAL PERFORMANCE BY A CHILD AS DEFINED
IN SECTION 263.11; PROMOTING A SEXUAL PERFORMANCE BY A CHILD AS  DEFINED
IN SECTION 263.15; POSSESSING A SEXUAL PERFORMANCE BY A CHILD AS DEFINED
IN  SECTION  263.16;  OR  A SIMILAR OFFENSE AGAINST A CHILD IN ANY OTHER
JURISDICTION.
  ENDANGERING THE WELFARE OF A CHILD IN THE FIRST DEGREE IS  A  CLASS  D
FELONY.

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  S 4. Paragraph (c) of subdivision 1 of section 70.02 of the penal law,
as  amended  by  chapter  405 of the laws of 2010, is 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, ENDANGERING THE WELFARE OF A
CHILD IN THE  FIRST  DEGREE  AS  DEFINED  IN  SECTION  260.11,  criminal
possession  of  a  weapon  in the third degree as defined in subdivision
five, six, seven or eight 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, 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.
  S  5. Section 260.12 of the penal law, as amended by chapter 89 of the
laws of 1984 and as renumbered by section two of this act, is amended to
read as follows:
S 260.12 Endangering the welfare of a child; corroboration.
  A person shall not be convicted of endangering the welfare of a  child
AS DEFINED IN SECTION 260.10 OR 260.11 OF THIS ARTICLE, or of an attempt
to  commit  the same, upon the testimony of a victim who is incapable of
consent because of mental defect or mental incapacity as to conduct that
constitutes an offense or an attempt to commit an offense referred to in
section 130.16,  without  additional  evidence  sufficient  pursuant  to
section  130.16  to  sustain  a  conviction of an offense referred to in
section 130.16, or of an attempt to commit the same.
  S 6. Section 260.15 of the penal law, as amended by chapter 447 of the
laws of 2010, is amended to read as follows:
S 260.15 Endangering the welfare of a child; defense.
  In any prosecution for endangering the welfare of a child, pursuant to
section 260.10 OR 260.11 of this article, based upon an alleged  failure
or  refusal to provide proper medical care or treatment to an ill child,
it is an affirmative defense that the defendant (a) is a parent, guardi-
an or other person legally charged with the  care  or  custody  of  such
child;  and  (b) is a member or adherent of an organized church or reli-
gious group the tenets of which prescribe prayer as the principal treat-
ment for illness; and (c) treated or caused such ill child to be treated
in accordance with such tenets.
  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.