senate Bill S2598

2011-2012 Legislative Session

Relates to custodial interference; repealer

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to codes
returned to senate
died in assembly
Jun 15, 2011 referred to codes
delivered to assembly
passed senate
Mar 03, 2011 advanced to third reading
Mar 02, 2011 2nd report cal.
Mar 01, 2011 1st report cal.115
Jan 26, 2011 referred to codes

Votes

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S2598 - Bill Details

Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §135.45, rpld & add §135.50, add §§135.51, 135.52 & 135.53, Pen L

S2598 - Bill Texts

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Expands provisions relating to custodial interference; provides for affirmative defense and special provisions relating to sentencing; establishes certain duties of law enforcement officers relating thereto.

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BILL NUMBER:S2598

TITLE OF BILL:
An act
to amend the penal law, in relation to custodial interference and
repealing certain provisions of such law relating thereto

PURPOSE:
With increasing recognition of the seriousness of parental abduction,
this bill is designed to overcome some of the significant obstacles
to the recovery and return of missing children.

SUMMARY OF PROVISIONS:
Section 1 amends subdivision 1 of section 135.45 of the Penal Law,
custodial interference in the second degree, by removing the
requirement to show that the abductor intended to hold the child
permanently or for a protracted period, therefore making the focus of
the statute the actual "taking" or "enticing" of the child.

Section 1 also amends subdivision 2 of section 135.45 of the Penal Law
to define custodial interference in the second degree as the taking
or enticing of a child, in the absence of a court order determining
the rights of custody or visitation, with intent to deny access,
custody or visitation rights of another to that child or for the
purpose of evading the courts of this State.

Section 1 also amends subdivision 3 of section 135.45 of the Penal Law
to include within the definition of custodial interference in the
second degree the wrongful withholding or failure to return such
child or incompetent person after expiration of any authorized
visitation period with intent to either intimidate or harass another
who has lawful custody or to prevent the other person from regaining
custody.

Section 2 repeals section 135.50 of the Penal Law and adds a new
section 135.50 dealing with custodial interference in the first
degree and states that a person would be guilty of such offense when
he or she commits the crime of custodial interference in the second
degree and either:
detains or conceals a child or incompetent person from his or her
lawful custodian with intent to hold the child permanently or for a
protracted period of time; or exposes the child or incompetent person
to a risk in which his or her safety will be endangered or his or her
health materially impaired; or removes the child or incompetent
person from the state.

Section 3 adds three new sections (135.51, 135.52 and 135.53) to the
Penal Law. Section 135.51 provides that it shall be an affirmative
defense to a prosecution if the child or incompetent person has been
abandoned, threatened with or subjected to violence or was fleeing a
domestic violence situation. Section 135.52 provides that the court
may assess any reasonable expenses incurred by the lawful custodian
or governmental unit searching for the child against any person
convicted under this section and may require such person to undergo
counseling at his or her own expense. Section 135.53 provides that
law enforcement officers conducting investigations in these matters


shall enter the case into the National Crime Information Center
(NCIC) Computer and shall take the child or incompetent person into
protective custody and return such child or incompetent person to his
or her lawful custodian, to the institution from which he or she is
entrusted or to the court in which a custody proceeding is pending.

Section 4 provides that this act shall take effect on the first day of
November after enactment.

EXISTING LAW:
Existing law requires that the abductor intends to hold the child
permanently, which is almost impossible to prove and assumes that the
whereabouts of the abducted child are known.
Additionally, existing law does not make it a crime for one parent to
conceal a child from his or her other parent in the absence of a
court order.

JUSTIFICATION:
According to the federal Office of Juvenile Justice and Delinquency
Prevention in its National Incidence Studies on Missing, Abducted,
Runaway and Thrownaway Children in America (NISMART), there are as
many as 354,100 children abducted by a family member each year.
These cases account for nearly 75% of all abductions.

There is increasing recognition among experts of the seriousness of
parental abduction and its long-term negative consequences. Many
children suffer permanent physical and/or psychological trauma as a
result of the abduction. The left-behind parent, who is suffering
with anxiety and loss, must also shoulder the financial burden of
conducting a search for the child.

Unlike other state statutes, (e.g. California, N.J., Florida,
Washington), the New York Statute is not comprehensive and only
minimally effective. A New York citizen whose child was abducted by a
family member is frequently placed at a terrible disadvantage in
comparison to a parent facing the same problem in another state,
because of the difficult threshold needed to secure a felony warrant
under the New York law. This is critical because the classification
of a family abduction as a felony triggers federal assistance for the
victimized child and parent. Because it is extremely difficult to
prove the child's whereabouts, it is virtually impossible to
establish that the child has been taken out of the state. Unless a
felony warrant is issued, the FBI and other authorities will not
intervene in the location effort. The National Center for Missing and
Exploited Children, for example, will not conduct a well renowned
national picture campaign or "ADVO" which has achieved a 7 out of 10
child recovery rate.

Additionally, the current statute fails to encompass all scenarios of
abduction. Conditioning the definition on the existence of a custody
decree excludes large numbers of victimized parents and leaves many
children vulnerable since abductions often occur during separation or
prior to issuance of any order.

Finally, family violence is increasingly recognized as a factor of
abduction. This proposal broadens the existing defense provisions to
protect victims of domestic violence.


LEGISLATIVE HISTORY:
2008: S.1077 - Referred to Codes
2007: S.1077 - Passed Senate
2005-06: S.465 - Passed Senate
2003-04: S.1924 - Passed Senate
2001-02: S.4235/A.1856A - Passed Senate, Held in Assembly
Codes Committee
1999-00: S.4332/A.7236 - Passed Senate, Held in Assembly
Codes Committee
1997-98: S.3249- Referred to Codes

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
First day of November after enactment.

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

                                  2598

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 26, 2011
                               ___________

Introduced  by  Sen.  SALAND -- 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 custodial interference and
  repealing certain provisions of such law relating thereto

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

  Section  1.  Section  135.45  of  the  penal law is amended to read as
follows:
S 135.45  Custodial interference in the second degree.
  A person is guilty of custodial  interference  in  the  second  degree
when:
  1.   Being a relative of a child less than sixteen years old, [intend-
ing to hold such child permanently or  for  a  protracted  period,]  and
knowing  that  he OR SHE has no legal right to do so, he OR SHE takes or
entices such child from his OR HER lawful custodian; or
  2. IN THE ABSENCE OF A COURT ORDER DETERMINING THE RIGHTS  OF  CUSTODY
OR VISITATION TO A CHILD LESS THAN SIXTEEN YEARS OLD, A RELATIVE OF SUCH
CHILD  TAKES  OR  ENTICES  SUCH  CHILD  WITH INTENT TO DENY ACCESS FROM,
CUSTODY OR VISITATION RIGHTS OF,  ANOTHER  TO  THAT  CHILD  OR  FOR  THE
PURPOSE OF EVADING THE JURISDICTION OF THE COURTS OF THIS STATE; OR
  3.  HE OR SHE RETAINS A CHILD LESS THAN SIXTEEN YEARS OLD OR AN INCOM-
PETENT PERSON AFTER EXPIRATION OF ANY AUTHORIZED VISITATION PERIOD  WITH
INTENT  TO EITHER INTIMIDATE OR HARASS ANOTHER WHO HAS LAWFUL CUSTODY OR
TO PREVENT THE OTHER PERSON FROM REGAINING CUSTODY; OR
  4. Knowing that he OR SHE has no legal right to do so, he OR SHE takes
or entices from lawful custody any incompetent person  or  other  person
entrusted by authority of law to the custody of another person or insti-
tution.
  Custodial interference in the second degree is a class A misdemeanor.
  S  2.  Section  135.50  of the penal law is REPEALED and a new section
135.50 is added to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05324-01-1

S. 2598                             2

S 135.50 CUSTODIAL INTERFERENCE IN THE FIRST DEGREE.
  A  PERSON IS GUILTY OF CUSTODIAL INTERFERENCE IN THE FIRST DEGREE WHEN
HE OR SHE COMMITS THE CRIME OF  CUSTODIAL  INTERFERENCE  IN  THE  SECOND
DEGREE AND:
  1. DETAINS OR CONCEALS THE CHILD OR INCOMPETENT PERSON FROM HIS OR HER
LAWFUL  CUSTODIAN  WITH  INTENT  TO HOLD THE CHILD OR INCOMPETENT PERSON
PERMANENTLY OR FOR A PROTRACTED PERIOD OF TIME; OR
  2. EXPOSES THE CHILD OR INCOMPETENT PERSON TO A RISK THAT HIS  OR  HER
SAFETY WILL BE ENDANGERED OR HIS OR HER HEALTH MATERIALLY IMPAIRED; OR
  3. REMOVES THE CHILD OR INCOMPETENT PERSON FROM THE STATE.
  CUSTODIAL INTERFERENCE IN THE FIRST DEGREE IS A CLASS E FELONY.
  S  3.  The  penal  law is amended by adding three new sections 135.51,
135.52 and 135.53 to read as follows:
S 135.51 AFFIRMATIVE DEFENSE.
  IT SHALL BE AN AFFIRMATIVE DEFENSE  TO  A  PROSECUTION  UNDER  SECTION
135.45 OR UNDER SUBDIVISION ONE OR THREE OF SECTION 135.50 OF THIS ARTI-
CLE  THAT THE VICTIM HAD BEEN ABANDONED OR THAT THE TAKING WAS NECESSARY
IN AN EMERGENCY TO PROTECT  THE  VICTIM  BECAUSE  HE  OR  SHE  HAS  BEEN
SUBJECTED  TO OR THREATENED WITH MISTREATMENT OR ABUSE OR THE PERSON WAS
FLEEING AN INCIDENCE OR PATTERN OF DOMESTIC VIOLENCE.
S 135.52 SPECIAL PROVISIONS RELATING TO SENTENCING.
  1. IN ADDITION TO ANY SENTENCE IMPOSED AGAINST ANY PERSON CONVICTED OF
VIOLATING SECTION 135.45 OR 135.50 OF THIS ARTICLE, THE COURT MAY ASSESS
ANY REASONABLE EXPENSES INCURRED BY THE LAWFUL CUSTODIAN AND/OR STATE OR
OTHER UNIT OF GOVERNMENT IN SEARCHING FOR AND/OR RECOVERING THE CHILD OR
INCOMPETENT PERSON.
  2. AS A CONDITION OF ANY SENTENCE IMPOSED AGAINST ANY PERSON CONVICTED
OF VIOLATING SECTION 135.45 OR 135.50 OF THIS ARTICLE, THE COURT MAY  IN
ADDITION,  REQUIRE THE DEFENDANT TO RECEIVE COUNSELING AT THE EXPENSE OF
THE DEFENDANT, BASED ON HIS OR HER ABILITY TO PAY.
S 135.53 DUTIES OF LAW ENFORCEMENT OFFICERS.
  1. A LAW ENFORCEMENT OFFICER WHO IS CONDUCTING AN INVESTIGATION FOR  A
VIOLATION  OF  SECTION 135.45 OR 135.50 OF THIS ARTICLE SHALL ENTER SUCH
CASE IN THE FEDERAL NATIONAL CRIME INFORMATION CENTER  COMPUTER  OR  ANY
SIMILAR SUCCESSOR COMPILATION.
  2.  A  LAW  ENFORCEMENT  OFFICER WHO IS CONDUCTING AN INVESTIGATION OR
MAKING AN ARREST FOR A VIOLATION OF SECTION 135.45  OR  135.50  OF  THIS
ARTICLE  SHALL  TAKE  THE  CHILD  OR  INCOMPETENT PERSON INTO PROTECTIVE
CUSTODY. SUCH OFFICER SHALL RETURN  SUCH  CHILD  OR  INCOMPETENT  PERSON
TAKEN  INTO  PROTECTIVE CUSTODY TO HIS OR HER LAWFUL CUSTODIAN OR TO THE
INSTITUTION FROM WHICH HE OR SHE IS ENTRUSTED OR TO THE COURT IN WHICH A
CUSTODY PROCEEDING IS PENDING.
  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.

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