senate Bill S2945

2011-2012 Legislative Session

Makes the inability to pay child support an affirmative defense to non-support of child offenses, rather than an element of such offenses

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Archive: Last Bill Status - Passed Senate


  • 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
Mar 29, 2012 referred to codes
delivered to assembly
passed senate
Mar 22, 2012 advanced to third reading
Mar 21, 2012 2nd report cal.
Mar 20, 2012 1st report cal.419
Jan 04, 2012 referred to codes
returned to senate
died in assembly
Jun 15, 2011 referred to codes
delivered to assembly
passed senate
Jun 01, 2011 advanced to third reading
May 25, 2011 2nd report cal.
May 24, 2011 1st report cal.803
Feb 03, 2011 referred to codes

Votes

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Mar 20, 2012 - Codes committee Vote

S2945
15
1
committee
15
Aye
1
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Codes committee vote details

May 24, 2011 - Codes committee Vote

S2945
15
0
committee
15
Aye
0
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Codes committee vote details

Co-Sponsors

S2945 - Bill Details

Current Committee:
Law Section:
Penal Law
Laws Affected:
Amd ยงยง260.05 & 260.06, Pen L
Versions Introduced in 2009-2010 Legislative Session:
S7004

S2945 - Bill Texts

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Makes the inability to pay child support an affirmative defense to non-support of child offenses, rather than an element of such offenses.

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BILL NUMBER:S2945

TITLE OF BILL:
An act
to amend the penal law, in relation to non-support of a child

PURPOSE:
Requires a delinquent parent to demonstrate as an affirmative defense
that the inability to pay excuses his or her failure to provide child
support for their minor child.

SUMMARY OF PROVISION:
Section one amends sections 260.05 & 260.06 of the penal law by
deleting the defendant's ability to pay from the definition of the
offense found in such sections and adds to both sections a new
provision that allows a defendant to show inability to pay as an
affirmative defense.

JUSTIFICATION:
Persons who are legally obligated to provide child support should not
be permitted to escape criminal prosecution where they have
deliberately taken action to avoid paying child support by engaging
in wasteful personal spending and concealment of funds. Currently,
parents guilty of the crime of non-support of a child may escape
criminal liability simply because the prosecutor is tasked with
proving the unknowable, that is, the parent's ability to pay. The
ability to pay is an inherently subjective question which requires
that the prosecutor submit evidence not only of the parent's income
and spending but proof which distinguishes between legitimate
expenses and wasteful spending. This amendment will rightly place the
burden of proving inability to pay on the parent, who alone possesses
the necessary information to answer that question.

LEGISLATIVE HISTORY:
2010: S.7004 - Referred to Codes/A.10169 - Referred to Codes

FISCAL IMPLICATION:
None.

EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding
the date on which it shall have become a law.

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

                                  2945

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 3, 2011
                               ___________

Introduced  by  Sen.  LANZA  -- 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 non-support of a child

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

  Section  1. Section 260.05 of the penal law, as amended by chapter 397
of the laws of 1997, the opening paragraph and subdivision 1 as  amended
and subdivision 2 as added by chapter 70 of the laws of 2008, is amended
to read as follows:
S 260.05 Non-support of a child in the second degree.
  A person is guilty of non-support of a child when:
  1.  being  a parent, guardian or other person legally charged with the
care or custody of a child less than sixteen years old, he or she  fails
or refuses without lawful excuse to provide support for such child [when
he  or  she  is  able to do so, or becomes unable to do so, when, though
employable, he or she voluntarily  terminates  his  or  her  employment,
voluntarily  reduces his or her earning capacity, or fails to diligently
seek employment]; or
  2. being a parent, guardian or other person obligated  to  make  child
support  payments  by  an  order  of child support entered by a court of
competent jurisdiction for a child less than eighteen years old,  he  or
she  knowingly fails or refuses without lawful excuse to provide support
for such child [when he or she is able to do so, or becomes unable to do
so, when, though employable, he or she voluntarily terminates his or her
employment, voluntarily reduces his or her earning capacity, or fails to
diligently seek employment].
  IN ANY PROSECUTION UNDER THIS SECTION, IT IS  AN  AFFIRMATIVE  DEFENSE
THAT THE DEFENDANT IS UNABLE TO PROVIDE SUPPORT FOR THE CHILD.  PROVIDED
THAT  NOTHING  IN  THIS PARAGRAPH SHALL CONSTITUTE A DEFENSE TO A PROSE-
CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION
WHERE THE DEFENDANT BECOMES  UNABLE  TO  PROVIDE  SUPPORT  WHEN,  THOUGH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04788-01-1

S. 2945                             2

EMPLOYABLE,  HE  OR  SHE  VOLUNTARILY  TERMINATES HIS OR HER EMPLOYMENT,
VOLUNTARILY REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO  DILIGENTLY
SEEK EMPLOYMENT.
  Non-support of a child in the second degree is a class A misdemeanor.
  S  2. Section 260.06 of the penal law, as amended by chapter 70 of the
laws of 2008, is amended to read as follows:
S 260.06 Non-support of a child in the first degree.
  A person is guilty of non-support of a child in the first degree when:
  1. (a) being a parent, guardian or other person legally  charged  with
the  care  or  custody of a child less than sixteen years old, he or she
fails or refuses without lawful excuse to provide support for such child
[when he or she is able to do so]; or
  (b) being a parent, guardian or other person obligated to  make  child
support  payments  by  an  order  of child support entered by a court of
competent jurisdiction for a child less than eighteen years old,  he  or
she  fails  or refuses without lawful excuse to provide support for such
child [when he or she is able to do so]; and
  2. he or she has previously been convicted in the preceding five years
of a [crime defined in] VIOLATION OF section 260.05 of this  article  or
[a crime defined by the provisions] of this section.
  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT IS AN AFFIRMATIVE DEFENSE
THAT THE DEFENDANT IS UNABLE TO PROVIDE SUPPORT FOR THE CHILD.  PROVIDED
THAT NOTHING IN THIS PARAGRAPH SHALL CONSTITUTE A DEFENSE  TO  A  PROSE-
CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION
WHERE  THE  DEFENDANT  BECOMES  UNABLE  TO  PROVIDE SUPPORT WHEN, THOUGH
EMPLOYABLE, HE OR SHE VOLUNTARILY  TERMINATES  HIS  OR  HER  EMPLOYMENT,
VOLUNTARILY  REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO DILIGENTLY
SEEK EMPLOYMENT.
  Non-support of a child in the first degree is a class E felony.
  S 3. 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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