NY State Senate Bill 2017-S741

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to codes
Jan 04, 2017	referred to codes

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2017-S741 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §135.45, rpld §135.50, add §§135.50, 135.51, 135.52 & 135.53, Pen L
Versions Introduced in 2015-2016 Legislative Session:: S4680

2017-S741 (ACTIVE) - Summary

Relates to custodial interference.

2017-S741 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S741

 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 § 135.45 of the Penal Law, related to custodial
interference in the second degree, and removes the requirement that
the abductor intended to hold the child permanently or for a
protracted period. This section also defines custodial interference in
the second degree.

Section 2 repeals § 135.50 of the Penal Law and adds a new section
135.50 dealing with custodial interference in the first degree.

Section 3 adds three new sections (135.51, 135.52 and 135.53) to the
Penal Law pertaining to the affirmative defenses, special provisions

of sentences, and the duties of law enforcement officers related to
the crime of custodial interference.

Section 4 provides the effective date.

 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 report, the National Incidence Studies on Missing,
Abducted, Runaway and Thrown-away 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, and
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, as
compared to similarly-situated parents in other states, because of the
threshold needed to secure a felony warrant under the New York law is
so high.

This bill lessens that burden. This is critical because the
classification of a family abduction as a felony triggers federal
assistance for the victimized child and parent. It is extremely
difficult to prove the child's whereabouts because 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.

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. Furthermore, family violence is increasingly
recognized as a factor of abduction. This legislation broadens the
existing defense provisions to protect victims of domestic violence.
For all the aforementioned reasons it is essential that this bill is
enacted.

 LEGISLATIVE HISTORY :

2016: S.4680 referred to Codes/ A.1980 Referred to Codes.
2013: A8300 (Mayer) referred to codes
2011: No Assembly Sponsor/ S. Passed Senate
2008: No Assembly Sponsor/S.1077 - Referred to Codes/ No Assembly
Sponsor
2007: No Assembly Sponsor/S.1077 - Passed Senate
2005-06: No Assembly Sponsor/S. 465 - Passed Senate
2003-04: A. 6286- Referred to Codes, S.1924- Passed Senate
2001-02: A.1856/S.4235A - Held in Assembly Codes Committee, Passed
Senate
1999-00: A.7236/ S.4332 -Held in Assembly, Passed Senate

 FISCAL IMPLICATIONS :

None.

 LOCAL FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect on the first of November after enactment.

2017-S741 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    741
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sens.  RITCHIE,  AMEDORE,  O'MARA, SERINO, YOUNG -- 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:
 § 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02501-01-7

 S. 741                              2
 
   § 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.

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Senate Bill S741

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

co-Sponsors

2017-S741 (ACTIVE) - Details

2017-S741 (ACTIVE) - Summary

2017-S741 (ACTIVE) - Sponsor Memo

2017-S741 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S741

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Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

co-Sponsors

2017-S741 (ACTIVE) - Details

2017-S741 (ACTIVE) - Summary

2017-S741 (ACTIVE) - Sponsor Memo

2017-S741 (ACTIVE) - Bill Text download pdf

Comments