S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2105
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2017
                                ___________
 
 Introduced  by  M.  of  A. MAYER, BARRETT, PAULIN, OTIS, MOSLEY, JAFFEE,
   STECK,  GALEF,  CROUCH,  GRAF,  HOOPER,  DINOWITZ,  WEPRIN,  BICHOTTE,
   GUNTHER  --  Multi-Sponsored  by  --  M.  of  A. ABBATE, ARROYO, COOK,
   HIKIND, PERRY, RIVERA -- read once and referred 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:
 § 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02501-01-7

 A. 2105                             2
 
   Custodial interference in the second degree is a class A misdemeanor.
   §  2.  Section  135.50  of the penal law is REPEALED and a new section
 135.50 is added to read as follows:
 § 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.
   § 3. The penal law is amended by adding  three  new  sections  135.51,
 135.52 and 135.53 to read as follows:
 § 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.
 § 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.
 § 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.
   § 4. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.