Relates to reckless assault of a child by a parent, guardian or other person legally charged with the child's care and endangering the welfare of a child

BILL NUMBER:S6575

Title of bill

An act to amend the penal law and the vehicle and traffic law, in relation to reckless assault of a child by a parent, guardian or other person legally charged with the child's care and endangering the welfare of a child

Purpose

This bill creates the crime of reckless assault of a child by a parent, guardian or other person legally charged with the care of a child less than thirteen years of age.

Summary of provisions

Section 1 creates a new subdivision in section 120.01 of the Penal Law, for the crime of reckless assault of a child by a parent, guardian or other person legally charged with the care of a child less than eleven years of age where he or she recklessly causes serious physical injury to such child. This crime is an E Felony.

Section 3 makes it a felony (new PL 260.09) when a person, age eighteen or older, knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than thirteen years of age, and the person has previously been convicted of the misdemeanor of endangering the welfare (PL. 260.10) of a child within the previous five years.

Sections 2, 4, 5 and 6 make conforming changes regarding the newly-created felony crime to the Penal Law and the Vehicle and Traffic Law.

Justification

This bill will make it a felony for a parent, guardian or other person legally charged with the care of a child less than eleven years of age to recklessly cause serious physical injury to such child. A similar felony penalty currently only applies to child day care providers, in accordance with existing section 120.01.

Currently, in order to prosecute a defendant for a felony for recklessly causing serious physical injury to a child (by means other than a deadly weapon or dangerous instrument), there must be proof that the defendant acted with depraved indifference (e.g., PL 120.10 (3)) or with intent to cause physical injury to the child (e.g., PL 120.05 (8)). Depraved indifference or intentional conduct is sometimes difficult to prove, particularly when the defendant is the parent or caregiver and the victim is his or her own child. This new crime will allow felony prosecution in cases where a parent, guardian or other person in a parent-like role causes serious physical injury to a child in his or her care where the evidence shows such injury was caused by the defendant's reckless conduct.

This crime will apply not only to a parent or guardian of a child, but also to a person legally charged with the care of a child less then eleven years of age. A person legally charged with the care of a child includes a person who assumes responsibility for that child similar to

that of a parent. See People v Stephens, 769 NYS 2d 249 (1st Dept. 2003), People v Carroll, 678 NYS 2d 6 (1st Dept. 1998).

The bill also creates a new felony crime: endangering the welfare of a child in the first degree. The crime occurs when a person eighteen years of age or older knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than thirteen years old, and the defendant has previously been convicted of endangering the welfare of a child within the preceding five years.

Legislative history

New Bill.

Fiscal implications

None.

Effective date

This act shall take effect ninety days after it is signed into law.