S T A T E O F N E W Y O R K
________________________________________________________________________
1447
2015-2016 Regular Sessions
I N A S S E M B L Y
January 12, 2015
___________
Introduced by M. of A. TEDISCO, RAIA, HAWLEY -- Multi-Sponsored by -- M.
of A. BARCLAY, BUTLER, CERETTO, CROUCH, DUPREY, FINCH, FITZPATRICK,
GIGLIO, KOLB, LOPEZ, McDONOUGH, McKEVITT, OAKS, SALADINO, 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
advanced age and manifested by demonstrable physical, mental or
emotional dysfunction to the extent that the person is incapable of
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02609-01-5
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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 1 of the laws of 2013 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, eight,
nine or ten 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
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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-3 to
read as follows:
TITLE Y-3
CRIMES AGAINST THE
ELDERLY OR DISABLED
ARTICLE 497
CRIMES AGAINST THE
ELDERLY OR DISABLED
SECTION 497.00 CRIMES AGAINST THE ELDERLY OR DISABLED.
497.05 SENTENCING.
S 497.00 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.
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
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(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
(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
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RELATED TO SUCH CRIME, OR PROVIDING EVIDENCE TO AID IN THE INVESTIGATION
OR PROSECUTION OF SUCH CRIME.
S 497.05 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, subdivision 4 as amended by section 15 of subpart A of part H of
chapter 55 of the laws of 2014 and subdivision 7 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 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 PROVIDED FURTHER THAT IN ANY PROSECUTION UNDER SECTION 497.00 OF THE
PENAL LAW, THE DESIGNATED OFFENSE SHALL BE THE SPECIFIED OFFENSE, AS
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DEFINED IN SUBDIVISION THREE OF SECTION 497.00 OF THE PENAL LAW,
FOLLOWED BY THE PHRASE "AS A CRIME AGAINST THE ELDERLY OR DISABLED"; and
provided further that in any prosecution under section 496.06 of the
penal law, the designated offense shall be the specified offense, as
defined in subdivision two of such section, followed by the phrase "as a
public corruption crime"; 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 497.00 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.