S T A T E   O F   N E W   Y O R K
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                                  5295

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 15, 2011
                               ___________

Introduced  by M. of A. P. RIVERA, MARKEY, SPANO, CASTRO, ARROYO, HOOPER
  -- Multi-Sponsored by -- M. of A. BURLING, CROUCH,  GABRYSZAK,  GALEF,
  GIGLIO,  MAYERSOHN,  MURRAY, TITONE, TOBACCO -- read once and referred
  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:
S 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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04788-01-1
              

A. 5295                             2

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 second degree is a class A misdemeanor.
  S 2. Section 260.06 of the penal law, as amended by chapter 70 of  the
laws of 2008, is amended to read as follows:
S 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.
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.