S T A T E   O F   N E W   Y O R K
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                                 6059--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             March 11, 2015
                               ___________

Introduced by M. of A. JAFFEE -- read once and referred to the Committee
  on  Codes  -- recommitted to the Committee on Codes in accordance with
  Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the penal law, establishing a mandatory senior anti-vio-
  lence services fee imposed upon conviction of a criminal  offense  and
  offenses against the elderly and disabled

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  The section heading and subdivision 1 of section 60.35  of
the  penal  law,  as amended by section 1 of part E of chapter 56 of the
laws of 2004, subparagraphs (i), (ii) and  (iii)  of  paragraph  (a)  of
subdivision  1  as  amended by section 1 of part DD of chapter 56 of the
laws of 2008 and paragraph (b) of subdivision 1 as  amended  by  chapter
320 of the laws of 2006, are amended to read as follows:
  Mandatory  surcharge, sex offender registration fee, DNA databank fee,
supplemental sex offender victim fee [and], crime victim assistance  AND
A SENIOR ANTI-VIOLENCE SERVICES fee required in certain cases.
  1.  (a)  Except  as  provided  in section eighteen hundred nine of the
vehicle and traffic law and section 27.12 of the parks,  recreation  and
historic  preservation  law,  whenever  proceedings in an administrative
tribunal or a court of this state result in a conviction for a felony, a
misdemeanor, or a violation, as these terms are defined in section 10.00
of this chapter,  there  shall  be  levied  at  sentencing  a  mandatory
surcharge,  sex  offender  registration  fee,  DNA databank fee [and], a
crime victim assistance fee AND A SENIOR ANTI-VIOLENCE SERVICES  FEE  in
addition  to  any  sentence  required or permitted by law, in accordance
with the following schedule:
  (i) a person convicted of a felony shall pay a mandatory surcharge  of
three  hundred  dollars  [and], a crime victim assistance fee of twenty-
five dollars, AND A SENIOR ANTI-VIOLENCE SERVICES FEE OF FIFTY DOLLARS;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06468-03-6
              

A. 6059--A                          2

  (ii) a person  convicted  of  a  misdemeanor  shall  pay  a  mandatory
surcharge  of  one  hundred  seventy-five  dollars [and], a crime victim
assistance fee  of  twenty-five  dollars,  AND  A  SENIOR  ANTI-VIOLENCE
SERVICES FEE OF FIFTY DOLLARS;
  (iii)  a  person  convicted  of  a  violation  shall  pay  a mandatory
surcharge of ninety-five dollars [and], a crime victim assistance fee of
twenty-five dollars, AND A SENIOR ANTI-VIOLENCE SERVICES  FEE  OF  FIFTY
DOLLARS;
  (iv) a person convicted of a sex offense as defined by subdivision two
of section one hundred sixty-eight-a of the correction law or a sexually
violent  offense  as defined by subdivision three of section one hundred
sixty-eight-a of the correction law shall, in addition  to  a  mandatory
surcharge  and crime victim assistance fee, pay a sex offender registra-
tion fee of fifty dollars[.], AND A SENIOR ANTI-VIOLENCE SERVICES FEE OF
FIFTY DOLLARS;
  (v) a person convicted of a designated offense as defined by  subdivi-
sion  seven  of  section  nine  hundred ninety-five of the executive law
shall, in addition to a mandatory surcharge and crime victim  assistance
fee, pay a DNA databank fee of fifty dollars, AND A SENIOR ANTI-VIOLENCE
SERVICES FEE OF FIFTY DOLLARS.
  (b)  When  the  felony  or  misdemeanor  conviction in [subparagraphs]
SUBPARAGRAPH (i), (ii) or (iv) of  paragraph  (a)  of  this  subdivision
results  from an offense contained in article one hundred thirty of this
chapter, incest in the third, second  or  first  degree  as  defined  in
sections  255.25,  255.26  and  255.27  of  this  chapter  or an offense
contained in article two hundred sixty-three of this chapter, the person
convicted shall pay a supplemental sex offender victim fee of one  thou-
sand  dollars,  AND  A SENIOR ANTI-VIOLENCE SERVICES FEE OF FIVE HUNDRED
DOLLARS, in addition to the mandatory surcharge and any other fee.
  S 2. The penal law is amended by adding a new article 261 to  read  as
follows:

                               ARTICLE 261
                OFFENSES AGAINST THE ELDERLY AND DISABLED
SECTION 261.00 ELDERLY,  VULNERABLE  ELDERLY AND DISABLED PERSONS; DEFI-
                 NITIONS.
        261.05 CRIMES AGAINST THE ELDERLY AND DISABLED; PRESUMPTION.
        261.10 ABANDONMENT OF AN ELDERLY OR DISABLED PERSON.
        261.15 ABANDONMENT OF AN ELDERLY OR DISABLED PERSON; DEFENSE.
        261.20 ENDANGERING THE WELFARE OF AN ELDERLY OR DISABLED PERSON.
        261.25 ENDANGERING THE WELFARE OF AN ELDERLY OR DISABLED PERSON;
                 CORROBORATION.
        261.30 ENDANGERING THE WELFARE OF AN ELDERLY OR DISABLED PERSON;
                 DEFENSE.
        261.35 ENDANGERING THE WELFARE OF A VULNERABLE ELDERLY PERSON OR
                 A DISABLED PERSON IN THE SECOND DEGREE.
        261.40 ENDANGERING THE WELFARE OF A VULNERABLE ELDERLY PERSON OR
                 A DISABLED PERSON IN THE FIRST DEGREE.

S 261.00 ELDERLY, VULNERABLE ELDERLY AND DISABLED PERSONS; DEFINITIONS.
  FOR THE PURPOSE OF  THIS  ARTICLE,  THE  FOLLOWING  DEFINITIONS  SHALL
APPLY:
  1.  "CAREGIVER"  MEANS A PERSON WHO (A) ASSUMES RESPONSIBILITY FOR THE
CARE OF A VULNERABLE ELDERLY PERSON PURSUANT TO A COURT  ORDER;  OR  (B)
RECEIVES MONETARY OR OTHER VALUABLE CONSIDERATION FOR PROVIDING CARE FOR
A VULNERABLE ELDERLY PERSON.

A. 6059--A                          3

  2. "SEXUAL CONTACT" MEANS ANY TOUCHING OF THE SEXUAL OR OTHER INTIMATE
PARTS OF A PERSON NOT MARRIED TO THE ACTOR FOR THE PURPOSE OF GRATIFYING
SEXUAL DESIRE OF EITHER PARTY.  IT INCLUDES THE TOUCHING OF THE ACTOR BY
THE  VICTIM, AS WELL AS THE TOUCHING OF THE VICTIM BY THE ACTOR, WHETHER
DIRECTLY OR THROUGH CLOTHING.
  3.  "VULNERABLE  ELDERLY  PERSON" MEANS A PERSON SIXTY YEARS OF AGE OR
OLDER WHO IS SUFFERING FROM  A  DISEASE  OR  INFIRMITY  ASSOCIATED  WITH
ADVANCED   AGE  AND  MANIFESTED  BY  DEMONSTRABLE  PHYSICAL,  MENTAL  OR
EMOTIONAL DYSFUNCTION TO THE EXTENT THAT  THE  PERSON  IS  INCAPABLE  OF
ADEQUATELY PROVIDING FOR HIS OR HER OWN HEALTH OR PERSONAL CARE.
  4. "ELDERLY PERSON" MEANS A PERSON SIXTY YEARS OF AGE OR OLDER.
  5.  "DISABLED  PERSON"  MEANS  A  PERSON  WHO HAS A PHYSICAL OR MENTAL
IMPAIRMENT THAT SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY.
S 261.05 CRIMES AGAINST THE ELDERLY AND DISABLED; PRESUMPTION.
  IN ANY CASE IN WHICH IT SHALL BE  SHOWN  THAT  A  PERSON  INTENDED  TO
COMMIT  A  SPECIFIED OFFENSE PURSUANT TO SECTION 485.05 OF THIS CHAPTER,
IT SHALL BE A REBUTTAL PRESUMPTION THAT THE PERSON SELECTED  THE  VICTIM
OR  COMMITTED  OR  INTENDED  TO  COMMIT THE ACT OR ACTS CONSTITUTING THE
OFFENSE IN WHOLE OR IN SUBSTANTIAL PART BECAUSE OF A  BELIEF  THAT  SUCH
VICTIM IS ELDERLY OR DISABLED.
S 261.10 ABANDONMENT OF AN ELDERLY OR DISABLED PERSON.
  A  PERSON  IS  GUILTY  OF ABANDONMENT OF AN ELDERLY OR DISABLED PERSON
WHEN, BEING A PERSON LEGALLY CHARGED WITH THE  CARE  OR  CUSTODY  OF  AN
ELDERLY  OR  DISABLED PERSON, HE OR SHE DESERTS SUCH PERSON IN ANY PLACE
WITH INTENT TO WHOLLY ABANDON HIM OR HER.
  ABANDONMENT OF AN ELDERLY OR DISABLED PERSON IS A CLASS E FELONY.
S 261.15 ABANDONMENT OF AN ELDERLY OR DISABLED PERSON; DEFENSE.
  IN ANY PROSECUTION FOR ABANDONMENT OF AN ELDERLY OR  DISABLED  PERSON,
PURSUANT  TO  SECTION  261.10  OF  THIS  ARTICLE,  BASED UPON AN ALLEGED
DESERTION OF AN ELDERLY OR DISABLED PERSON  WITH  AN  INTENT  TO  WHOLLY
ABANDON SUCH AN ELDERLY OR DISABLED PERSON, IT IS AN AFFIRMATIVE DEFENSE
THAT,  WITH  THE INTENT THAT THE ELDERLY OR DISABLED PERSON BE SAFE FROM
PHYSICAL INJURY AND CARED FOR IN AN APPROPRIATE  MANNER,  THE  DEFENDANT
LEFT  THE  ELDERLY OR DISABLED PERSON WITH AN APPROPRIATE PERSON OR IN A
SUITABLE LOCATION AND PROMPTLY NOTIFIED AN  APPROPRIATE  PERSON  OF  THE
ELDERLY OR DISABLED PERSON'S LOCATION.
S 261.20 ENDANGERING THE WELFARE OF AN ELDERLY OR DISABLED PERSON.
  A  PERSON  IS GUILTY OF ENDANGERING THE WELFARE OF AN ELDERLY OR DISA-
BLED PERSON WHEN BEING A PERSON LEGALLY CHARGED WITH THE CARE OR CUSTODY
OF AN ELDERLY OR DISABLED PERSON:
  1. HE OR SHE KNOWINGLY ACTS IN A MANNER LIKELY TO BE INJURIOUS TO  THE
PHYSICAL,  MENTAL  OR MORAL WELFARE OF AN ELDERLY OR DISABLED PERSON, OR
DIRECTS OR AUTHORIZES SUCH AN ELDERLY OR DISABLED PERSON, TO  ENGAGE  IN
AN  OCCUPATION INVOLVING A SUBSTANTIAL RISK OF DANGER TO HIS OR HER LIFE
OR HEALTH; OR
  2. HE OR SHE FAILS OR REFUSES TO EXERCISE REASONABLE DILIGENCE IN  THE
CONTROL  OF  SUCH  ELDERLY OR DISABLED PERSON TO PREVENT HIM OR HER FROM
PHYSICAL, MENTAL OR MORAL INJURY, OR FROM ENGAGING IN ACTS  INVOLVING  A
SUBSTANTIAL RISK OF DANGER TO HIS OR HER LIFE OR HEALTH.
  ENDANGERING  THE WELFARE OF AN ELDERLY OR DISABLED PERSON IS A CLASS A
MISDEMEANOR.
S 261.25 ENDANGERING THE WELFARE  OF  AN  ELDERLY  OR  DISABLED  PERSON;
           CORROBORATION.
  A  PERSON  SHALL  NOT  BE  CONVICTED  OF ENDANGERING THE WELFARE OF AN
ELDERLY OR DISABLED PERSON, OR OF AN ATTEMPT TO COMMIT  THE  SAME,  UPON
THE  TESTIMONY OF A VICTIM WHO IS INCAPABLE OF CONSENT BECAUSE OF MENTAL

A. 6059--A                          4

DEFECT OR MENTAL INCAPACITY AS TO CONDUCT THAT CONSTITUTES AN OFFENSE OR
AN ATTEMPT TO COMMIT AN OFFENSE REFERRED TO IN SECTION  130.16  OF  THIS
CHAPTER,  WITHOUT  ADDITIONAL  EVIDENCE  SUFFICIENT  PURSUANT TO SECTION
130.16 OF THIS CHAPTER TO SUSTAIN A CONVICTION OF AN OFFENSE REFERRED TO
IN SECTION 130.16 OF THIS CHAPTER, OR OF AN ATTEMPT TO COMMIT THE SAME.
S  261.30 ENDANGERING  THE  WELFARE  OF  AN  ELDERLY OR DISABLED PERSON;
           DEFENSE.
  IN ANY PROSECUTION FOR ENDANGERING THE WELFARE OF AN ELDERLY OR  DISA-
BLED PERSON, PURSUANT TO SECTION 261.20 OF THIS ARTICLE:
  1.  BASED UPON AN ALLEGED FAILURE OR REFUSAL TO PROVIDE PROPER MEDICAL
CARE OR TREATMENT TO AN ELDERLY OR DISABLED PERSON, WHO IS ILL, IT IS AN
AFFIRMATIVE DEFENSE THAT THE ELDERLY OR DISABLED PERSON IS A  MEMBER  OR
ADHERENT  OF  AN ORGANIZED CHURCH OR RELIGIOUS GROUP THE TENETS OF WHICH
PRESCRIBE PRAYER AS THE PRINCIPAL TREATMENT FOR ILLNESS,  AND  THAT  THE
ELDERLY  OR  DISABLED PERSON WAS TREATED IN ACCORDANCE WITH SUCH TENETS;
OR
  2. BASED UPON AN ALLEGED DESERTION OF AN ELDERLY OR  DISABLED  PERSON,
IT  IS  AN  AFFIRMATIVE DEFENSE THAT, WITH THE INTENT THAT THE PERSON BE
SAFE FROM PHYSICAL INJURY AND CARED FOR IN AN  APPROPRIATE  MANNER,  THE
DEFENDANT  LEFT  THE  PERSON WITH AN APPROPRIATE PERSON OR IN A SUITABLE
LOCATION AND PROMPTLY NOTIFIED AN APPROPRIATE  PERSON  OF  THE  PERSON'S
LOCATION.
S  261.35 ENDANGERING  THE  WELFARE  OF A VULNERABLE ELDERLY PERSON OR A
           DISABLED PERSON IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF ENDANGERING THE WELFARE OF A VULNERABLE  ELDERLY
PERSON OR A DISABLED PERSON IN THE SECOND DEGREE WHEN, BEING A CAREGIVER
FOR A VULNERABLE ELDERLY PERSON OR A DISABLED PERSON:
  1.  WITH  INTENT  TO  CAUSE  PHYSICAL INJURY TO SUCH PERSON, HE OR SHE
CAUSES SUCH INJURY TO SUCH PERSON; OR
  2. HE OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO SUCH PERSON; OR
  3. WITH CRIMINAL NEGLIGENCE, HE OR SHE CAUSES PHYSICAL INJURY TO  SUCH
PERSON BY MEANS OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; OR
  4.  HE  OR  SHE  SUBJECTS  SUCH  PERSON  TO SEXUAL CONTACT WITHOUT THE
LATTER'S CONSENT. LACK OF CONSENT UNDER THIS  SUBDIVISION  RESULTS  FROM
FORCIBLE COMPULSION OR INCAPACITY TO CONSENT, AS THOSE TERMS ARE DEFINED
IN  ARTICLE  ONE  HUNDRED  THIRTY  OF THIS CHAPTER, OR ANY OTHER CIRCUM-
STANCES IN WHICH THE VULNERABLE ELDERLY PERSON OR DISABLED  PERSON  DOES
NOT EXPRESSLY OR IMPLIEDLY ACQUIESCE IN THE CAREGIVER'S CONDUCT.
  IN  ANY  PROSECUTION  UNDER  THIS  SUBDIVISION  IN  WHICH THE VICTIM'S
ALLEGED LACK OF  CONSENT  RESULTS  SOLELY  FROM  INCAPACITY  TO  CONSENT
BECAUSE  OF  THE  VICTIM'S  MENTAL  DISABILITY OR MENTAL INCAPACITY, THE
PROVISIONS OF SECTION 130.16 OF THIS CHAPTER SHALL APPLY.  IN  ADDITION,
IN  ANY PROSECUTION UNDER THIS SUBDIVISION IN WHICH THE VICTIM'S LACK OF
CONSENT IS BASED SOLELY UPON HIS OR HER INCAPACITY TO CONSENT BECAUSE HE
OR SHE WAS MENTALLY DISABLED, MENTALLY INCAPACITATED OR PHYSICALLY HELP-
LESS, IT IS AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT, AT THE TIME HE OR
SHE ENGAGED IN THE CONDUCT CONSTITUTING THE OFFENSE, DID NOT KNOW OF THE
FACTS OR CONDITIONS RESPONSIBLE FOR SUCH INCAPACITY TO CONSENT.
  ENDANGERING THE WELFARE OF A VULNERABLE ELDERLY PERSON OR  A  DISABLED
PERSON IN THE SECOND DEGREE IS A CLASS E FELONY.
S  261.40  ENDANGERING  THE  WELFARE OF A VULNERABLE ELDERLY PERSON OR A
           DISABLED PERSON IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF ENDANGERING THE WELFARE OF A VULNERABLE  ELDERLY
PERSON  OR A DISABLED PERSON IN THE FIRST DEGREE WHEN, BEING A CAREGIVER
FOR A VULNERABLE ELDERLY PERSON OR DISABLED PERSON:

A. 6059--A                          5

  1. WITH INTENT TO CAUSE PHYSICAL INJURY TO  SUCH  PERSON,  HE  OR  SHE
CAUSES SERIOUS PHYSICAL INJURY TO SUCH PERSON; OR
  2. HE OR SHE RECKLESSLY CAUSES SERIOUS PHYSICAL INJURY TO SUCH PERSON.
  ENDANGERING  THE  WELFARE OF A VULNERABLE ELDERLY PERSON OR A DISABLED
PERSON IN THE FIRST DEGREE IS A CLASS D FELONY.
  S 3. Section 120.05 of the penal law is amended by adding a new subdi-
vision 14 to read as follows:
  14. BEING EIGHTEEN YEARS OLD OR MORE AND WITH INTENT TO CAUSE PHYSICAL
INJURY TO A PERSON SIXTY YEARS OLD OR OLDER, OR TO A PERSON  WHO  HAS  A
PHYSICAL  OR  MENTAL  IMPAIRMENT  THAT SUBSTANTIALLY LIMITS A MAJOR LIFE
ACTIVITY, THE DEFENDANT CAUSES SUCH INJURY TO SUCH PERSON.
  S 4. Section 135.30 of the penal law is amended to read as follows:
S 135.30 Kidnapping; defense.
  In any prosecution for kidnapping, it is an affirmative  defense  that
(a)  the defendant was a relative of the person abducted, and (b) his OR
HER sole purpose was to assume control of such person.
  THIS SECTION SHALL NOT APPLY IN  THE  CASE  WHEN  THE  PERSON  WHO  IS
ABDUCTED  IS SIXTY YEARS OLD OR OLDER, OR TO A PERSON WHO HAS A PHYSICAL
OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS A  MAJOR  LIFE  ACTIVITY,
AND THE KIDNAPPING WAS DONE WITH THE INTENTION OF COMPELLING SUCH PERSON
TO TRANSFER AN ASSET TO THE DEFENDANT OR TO A THIRD PARTY.
  S 5. Section 135.45 of the penal law is amended to read as follows:
S 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,  intending
to  hold  such child permanently or for a protracted period, and knowing
that he has no legal right to do so, he takes or entices such child from
his lawful custodian; or
  2. Knowing that he has no legal right to do so, he  takes  or  entices
from  lawful custody any incompetent person or other person entrusted by
authority of law to the custody of another person or institution; OR
  3. KNOWING THAT HE OR SHE HAS NO LEGAL RIGHT TO DO SO, HE OR SHE TAKES
OR ENTICES ANY PERSON SIXTY YEARS OF AGE OR OLDER, OR A PERSON WHO HAS A
PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY  LIMITS  A  MAJOR  LIFE
ACTIVITY, FROM THE CUSTODY OF ANOTHER PERSON OR INSTITUTION.
  Custodial interference in the second degree is a class A misdemeanor.
  S 6. Subdivision (g) of section 140.10 of the penal law, as amended by
chapter 176 of the laws of 2011, is amended and a new subdivision (h) is
added to read as follows:
  (g)  where  the property consists of a right-of-way or yard of a rail-
road or rapid transit railroad which has been designated  and  conspicu-
ously posted as a no-trespass railroad zone[.]; OR
  (H)  WHICH  IS  A  DWELLING OCCUPIED BY A PERSON SIXTY YEARS OF AGE OR
OLDER, OR A PERSON WHO HAS A PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTAN-
TIALLY LIMITS A MAJOR LIFE ACTIVITY.
  S 7. Severability. If any provision of this  act  or  the  application
thereof  to  any  person  or  circumstances  is  held to be invalid, the
remainder of the act and the application  of  such  provision  to  other
persons or circumstances shall not be affected thereby.
  S 8. This act shall take effect immediately.