S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6301
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               May 11, 2017
                                ___________
 
 Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
   printed to be committed 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:
 § 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-
 CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION
 WHERE THE DEFENDANT BECOMES  UNABLE  TO  PROVIDE  SUPPORT  WHEN,  THOUGH
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02353-01-7

 S. 6301                             2
 
 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.
   §  2. Section 260.06 of the penal law, as amended by chapter 70 of the
 laws of 2008, is amended to read as follows:
 § 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.
   § 3. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.