|SAME AS||SAME AS S07249|
|Add §260.09, amd §§260.10, 120.40 & 260.15, Pen L; amd §509-cc, V & T L|
|Establishes the crime of endangering the welfare of a child in the first degree; makes technical corrections.|
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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.
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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. LBD14250-01-9A. 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.