NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9102
SPONSOR: Hevesi TITLE OF BILL:
An act to amend the penal law, in relation to establishing the crime of
endangering the welfare of a child in the first degree; and to amend the
penal law and the vehicle and traffic law, in relation to making techni-
cal corrections thereto
PURPOSE OR GENERAL IDEA OF BILL:
To address forms of child abuse that cannot be adequately addressed
under existing law, including risk of serious injury, protracted impair-
ment, conduct that results in physical injury to young children, and
repeat abusers.
SUMMARY OF PROVISIONS:
Section 1 adds section 260.09 to the Penal Code to establish the crime
of endangering the welfare of a child in the first degree.
Section 2 amends section 260.10 of the Penal Code to establish the crime
of endangering the welfare of a child in the second degree.
Section 3 amends subdivision 5 of section 120.40 of the Penal Code to
include endangering the welfare of a child in both the first and second
degree.
Section 4 amends section 260.15 of the Penal Code to include a reference
to the new section 260.09 in the defense for endangering the welfare of
a child.
Section 5 amends paragraph (c) of subdivision 4 of section 509-cc of the
vehicle and traffic law to include a reference to the new section
260.09.
Section 6 sets forth the effective date.
JUSTIFICATION:
Unlike 37 other states, New York does not have a felony-level crime for
endangering the welfare of a child. The existing misdemeanor charge for
endangering the welfare of a child is often inadequate to capture the
severity of particularly egregious cases. This legislation establishes
the crime of endangering the welfare of a child in the first degree to
address those situations. It reclassifies the existing misdemeanor
crime of endangering the welfare of a child as the second degree version
of that crime.
There are numerous examples of child abuse cases across New York State
that could not be adequately addressed by the existing misdemeanor
charge. For instance, in Suffolk County, a four year old child with
cancer was denied treatment by her parents. Although she received the
initial surgery she needed, her parents never brought her back for
chemotherapy and other treatments that doctors believed were necessary
for her survival. Eight months later, her parents rushed her to the
hospital paralyzed from the waist down due to her cancer having spread
to other organs. Her parent's negligence almost resulted in her death
and required her to receive months of intensive medical care. Prosecu-
tors, however, did not have sufficient evidence to charge her parents
with reckless endangerment in the first degree or felony assault. They
could only charge them with the existing misdemeanor of child endanger-
ment, which failed to adequately address the harm done to this child.
Similarly, in Schenectady County, a parent of a 21-month old child
repeatedly bound and gagged their child and locked them in the back of a
dark closet for an extended period of time. Although the child did not
sustain any physical injury, they are likely emotionally scarred from
the abuse. Under current statue, the parent can only be charged with
misdemeanor child endangerment. If the parent had abused a mentally or
physically disabled person in the same way, they could be charged with a
felony. The child in question should have the same protection from abuse
as a mentally or physically disabled adult.
This new charge would also help prosecutors address abuse that happens
overtime or repeatedly. Unfortunately, children often show signs of
abuse that cannot be dated or tied to a particular individual. Prosecu-
tors often cannot make a felony charge in cases where a baby has multi-
ple bone fractures or skull fractures. Although the child has obviously
experienced extreme pain and suffering, if they cannot tie the injuries
to a specific adult, there is no existing felony level charge to address
the failure of the child's parents or guardian to address the obvious
suffering of the child in question. Additionally, the statute for
endangering the welfare of a child does not have a "bump-up" provision.
Other statutes, for instance Penal Code 120.40-120.60 which addresses
stalking, raises the penalty in cases where a past offender repeats the
crime. Creating a felony level endangering the welfare of a child charge
would help prosecutors address cases where an offender has repeatedly
harmed children.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect 180 days after it is signed into law.
STATE OF NEW YORK
________________________________________________________________________
9102
IN ASSEMBLY
January 21, 2020
___________
Introduced by M. of A. HEVESI -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, in relation to establishing the crime of
endangering the welfare of a child in the first degree; and to amend
the penal law and the vehicle and traffic law, in relation to making
technical corrections thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding a new section 260.09 to
2 read as follows:
3 § 260.09 Endangering the welfare of a child in the first degree.
4 A person is guilty of endangering the welfare of a child in the first
5 degree when:
6 1. he or she knowingly or recklessly acts in a manner which creates a
7 risk of either serious physical injury or protracted impairment of the
8 physical, mental or moral welfare of a child less than seventeen years
9 old; or
10 2. he or she commits the crime of endangering the welfare of a child
11 in the second degree, and:
12 a. being eighteen years old or more he or she knowingly or recklessly
13 acts in a manner likely to be injurious to the physical, mental or moral
14 welfare of a child less than seven years old and causes physical injury
15 to that child, or
16 b. he or she has previously been convicted of a crime or an attempt to
17 commit a crime pursuant to the provisions of articles 120, 121, 125,
18 130, 135, 150, 160, 230, 235, 260 and 263 of the penal law or section
19 155.40, 155.42, 215.00, 215.10, 215.15, 215.16, 215.17, 215.50, 215.51,
20 215.52, 220.28, 220.31, 220.34, 220.39, 220.41, 220.43, 220.44, 220.48,
21 221.50, 240.75, 245.00, 245.03, 245.11, 250.45, 250.50, 250.55, 250.60,
22 255.25, 255.26, 255.27, 265.01-a, subdivision two of section 265.01,
23 subdivision one of section 265.02, subdivision one of section 265.03,
24 subdivision one of section 265.04, subdivision five of section 265.10,
25 subdivision one of section 265.11, 265.12, 265.13, 265.14, 265.16,
26 265.17, or 265.26 of the penal law and the victim of the crime was less
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14250-01-9
A. 9102 2
1 than seventeen years old or if there was more than one victim at least
2 one of the victims was less than seventeen years old.
3 Endangering the welfare of a child in the first degree is a class E
4 felony.
5 § 2. Section 260.10 of the penal law, as amended by chapter 447 of the
6 laws of 2010, is amended to read as follows:
7 § 260.10 Endangering the welfare of a child in the second degree.
8 A person is guilty of endangering the welfare of a child in the second
9 degree when:
10 1. He or she knowingly acts in a manner likely to be injurious to the
11 physical, mental or moral welfare of a child less than seventeen years
12 old or directs or authorizes such child to engage in an occupation
13 involving a substantial risk of danger to his or her life or health; or
14 2. Being a parent, guardian or other person legally charged with the
15 care or custody of a child less than eighteen years old, he or she fails
16 or refuses to exercise reasonable diligence in the control of such child
17 to prevent him or her from becoming an "abused child," a "neglected
18 child," a "juvenile delinquent" or a "person in need of supervision," as
19 those terms are defined in articles ten, three and seven of the family
20 court act.
21 3. A person is not guilty of the provisions of this section when he or
22 she engages in the conduct described in subdivision one of section
23 260.00 of this article: (a) with the intent to wholly abandon the child
24 by relinquishing responsibility for and right to the care and custody of
25 such child; (b) with the intent that the child be safe from physical
26 injury and cared for in an appropriate manner; (c) the child is left
27 with an appropriate person, or in a suitable location and the person who
28 leaves the child promptly notifies an appropriate person of the child's
29 location; and (d) the child is not more than thirty days old.
30 Endangering the welfare of a child in the second degree is a class A
31 misdemeanor.
32 § 3. Paragraph c of subdivision 5 of section 120.40 of the penal law,
33 as amended by section 7 of part NN of chapter 55 of the laws of 2018, is
34 amended to read as follows:
35 c. assault in the third degree, as defined in section 120.00; menacing
36 in the first degree, as defined in section 120.13; menacing in the
37 second degree, as defined in section 120.14; coercion in the first
38 degree, as defined in section 135.65; coercion in the second degree, as
39 defined in section 135.61; coercion in the third degree, as defined in
40 section 135.60; aggravated harassment in the second degree, as defined
41 in section 240.30; harassment in the first degree, as defined in section
42 240.25; menacing in the third degree, as defined in section 120.15;
43 criminal mischief in the third degree, as defined in section 145.05;
44 criminal mischief in the second degree, as defined in section 145.10,
45 criminal mischief in the first degree, as defined in section 145.12;
46 criminal tampering in the first degree, as defined in section 145.20;
47 arson in the fourth degree, as defined in section 150.05; arson in the
48 third degree, as defined in section 150.10; criminal contempt in the
49 first degree, as defined in section 215.51; endangering the welfare of a
50 child in the first degree, as defined in section 260.09; endangering the
51 welfare of a child in the second degree, as defined in section 260.10;
52 or
53 § 4. Section 260.15 of the penal law, as amended by chapter 447 of the
54 laws of 2010, is amended to read as follows:
55 § 260.15 Endangering the welfare of a child; defense.
A. 9102 3
1 In any prosecution for endangering the welfare of a child, pursuant to
2 section 260.09 or section 260.10 of this article, based upon an alleged
3 failure or refusal to provide proper medical care or treatment to an ill
4 child, it is an affirmative defense that the defendant (a) is a parent,
5 guardian or other person legally charged with the care or custody of
6 such child; and (b) is a member or adherent of an organized church or
7 religious group the tenets of which prescribe prayer as the principal
8 treatment for illness; and (c) treated or caused such ill child to be
9 treated in accordance with such tenets.
10 § 5. Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
11 and traffic law, as amended by chapter 368 of the laws of 2015, is
12 amended to read as follows:
13 (c) The offenses referred to in subparagraph (i) of paragraph (b) of
14 subdivision one and subparagraph (i) of paragraph (c) of subdivision two
15 of this section that result in disqualification for a period of five
16 years shall include a conviction under sections 100.10, 105.13, 115.05,
17 120.03, 120.04, 120.04-a, 120.05, 120.10, 120.25, 121.12, 121.13,
18 [125.40, 125.45,] 130.20, 130.25, 130.52, 130.55, 135.10, 135.55,
19 140.17, 140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06,
20 220.09, 220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55,
21 230.00, 230.05, 230.06, 230.11, 230.12, 230.13, 230.19, 230.20, 235.05,
22 235.06, 235.07, 235.21, 240.06, 245.00, 260.09, 260.10, subdivision two
23 of section 260.20 and sections 260.25, 265.02, 265.03, 265.08, 265.09,
24 265.10, 265.12, 265.35 of the penal law or an attempt to commit any of
25 the aforesaid offenses under section 110.00 of the penal law, or any
26 similar offenses committed under a former section of the penal law, or
27 any offenses committed under a former section of the penal law which
28 would constitute violations of the aforesaid sections of the penal law,
29 or any offenses committed outside this state which would constitute
30 violations of the aforesaid sections of the penal law.
31 § 6. This act shall take effect on the one hundred eightieth day after
32 it shall have become a law.
