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

                                 3646--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 13, 2015
                               ___________

Introduced  by  Sen.  FUNKE  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06468-02-6

S. 3646--A                          2
              

  (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;
  (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:

S. 3646--A                          3

  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.
  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. 3646--A                          4

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
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. 3646--A                          5

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:
  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 by adding a new subdi-
vision 3 to read as follows:
  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.
  S 6. Section 140.10 of the penal law is amended by adding a new subdi-
vision (h) to read as follows:
  (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.