NY State Senate Bill 2021-S4631

Senate Bill S4631

2021-2022 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

download bill text pdf

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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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to codes
Feb 08, 2021	referred to codes

2021-S4631 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§260.05 & 260.06, Pen L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S7004
2011-2012: S2945
2013-2014: S3847
2015-2016: S2819
2017-2018: S6301
2019-2020: S1759
2023-2024: S4089

2021-S4631 (ACTIVE) - Summary

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

2021-S4631 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S4631

SPONSOR: LANZA
 
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 subjec-
tive 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 parent, who alone possesses the
necessary information inability to pay on the to Codes/A.7052 - Referred
to Codes to answer that question.

 
LEGISLATIVE HISTORY:

2020: S.1759 - Referred to Codes

2019: S.1759 - Referred to Codes

2018: S.6301- Referred to Codes/A.7052 - Referred to Codes

2017:S.6301-Passed Senate/A.7052-Referred to Codes

2016:S.2819-Passed Senate/A.3162-Referred to Codes

2015:S.2819-Passed Senate/A.3162-Referred to Codes

2014:S.3847-Passed Senate/A.7968-Referred to Codes

2012:S.2945 - Passed Senate

2011:S.2945 - Passed Senate

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

2021-S4631 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4631
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 8, 2021
                                ___________
 
 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:
 § 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.

                                                            LBD06326-01-1

 S. 4631                             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.
   §  2. Section 260.06 of the penal law, as amended by chapter 70 of the
 laws of 2008, is amended to read as follows:
 § 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.
   § 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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