STATE OF NEW YORK ________________________________________________________________________ 4040 2017-2018 Regular Sessions IN SENATE February 2, 2017 ___________ Introduced by Sen. TEDISCO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law and the criminal procedure law, in relation to crimes against vulnerable elderly or disabled persons The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 260.31 of the penal law, as added by chapter 381 of 2 the laws of 1998, subdivision 1 as amended, subdivision 4 as added and 3 such section as renumbered by chapter 14 of the laws of 2010, and subdi- 4 vision 2 as amended by chapter 193 of the laws of 2010, is amended to 5 read as follows: 6 § 260.31 Vulnerable elderly persons; definitions. 7 For the purpose of sections 260.32 and 260.34 of this article, the 8 following definitions shall apply: 9 1. [~~"Caregiver" means a person who (i) assumes responsibility for the~~ 10 ~~care of a vulnerable elderly person, or an incompetent or physically~~ 11 ~~disabled person pursuant to a court order; or (ii) receives monetary or~~ 12 ~~other valuable consideration for providing care for a vulnerable elderly~~ 13 ~~person, or an incompetent or physically disabled person.~~ 14 2.] "Sexual contact" means any touching of the sexual or other inti- 15 mate parts of a person for the purpose of gratifying sexual desire of 16 either party. It includes the touching of the actor by the victim, as 17 well as the touching of the victim by the actor, whether directly or 18 through clothing, as well as the emission of ejaculate by the actor upon 19 any part of the victim, clothed or unclothed. 20 [3.] 2. "Vulnerable elderly person" means a person sixty years of age 21 or older who is suffering from a disease or infirmity associated with 22 advanced age and manifested by demonstrable physical, mental or 23 emotional dysfunction to the extent that the person is incapable of 24 adequately providing for his or her own health or personal care or a 25 person seventy years of age or older. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06408-01-7

S. 4040 2 1 [4.] 3. "Incompetent or physically disabled person" means an individ- 2 ual who is unable to care for himself or herself because of physical 3 disability, mental disease or defect. 4 § 2. The opening paragraph and subdivision 4 of section 260.32 of the 5 penal law, as amended by chapter 14 of the laws of 2010, are amended to 6 read as follows: 7 A person is guilty of endangering the welfare of a vulnerable elderly 8 person, or an incompetent or physically disabled person in the second 9 degree when[~~, being a caregiver for a vulnerable elderly person, or an~~ 10 ~~incompetent or physically disabled person~~]: 11 4. He or she subjects such person to sexual contact without the 12 latter's consent. Lack of consent under this subdivision results from 13 forcible compulsion or incapacity to consent, as those terms are defined 14 in article one hundred thirty of this [~~chapter~~] part, or any other 15 circumstances in which the vulnerable elderly person, or an incompetent 16 or physically disabled person does not expressly or impliedly acquiesce 17 [~~in the caregiver's conduct~~]. In any prosecution under this subdivision 18 in which the victim's alleged lack of consent results solely from inca- 19 pacity to consent because of the victim's mental disability or mental 20 incapacity, the provisions of section 130.16 of this [~~chapter~~] part 21 shall apply. In addition, in any prosecution under this subdivision in 22 which the victim's lack of consent is based solely upon his or her inca- 23 pacity to consent because he or she was mentally disabled, mentally 24 incapacitated or physically helpless, it is an affirmative defense that 25 the defendant, at the time he or she engaged in the conduct constituting 26 the offense, did not know of the facts or conditions responsible for 27 such incapacity to consent. 28 § 3. The opening paragraph of section 260.34 of the penal law, as 29 amended by chapter 14 of the laws of 2010, is amended to read as 30 follows: 31 A person is guilty of endangering the welfare of a vulnerable elderly 32 person, or an incompetent or physically disabled person in the first 33 degree when[~~, being a caregiver for a vulnerable elderly person, or an~~ 34 ~~incompetent or physically disabled person~~]: 35 § 4. Paragraphs (c) and (d) of subdivision 1 of section 70.02 of the 36 penal law, paragraph (c) as amended by chapter 368 of the laws of 2015 37 and paragraph (d) as amended by chapter 7 of the laws of 2007, are 38 amended to read as follows: 39 (c) Class D violent felony offenses: an attempt to commit any of the 40 class C felonies set forth in paragraph (b); reckless assault of a child 41 as defined in section 120.02, assault in the second degree as defined in 42 section 120.05, menacing a police officer or peace officer as defined in 43 section 120.18, stalking in the first degree, as defined in subdivision 44 one of section 120.60, strangulation in the second degree as defined in 45 section 121.12, rape in the second degree as defined in section 130.30, 46 criminal sexual act in the second degree as defined in section 130.45, 47 sexual abuse in the first degree as defined in section 130.65, course of 48 sexual conduct against a child in the second degree as defined in 49 section 130.80, aggravated sexual abuse in the third degree as defined 50 in section 130.66, facilitating a sex offense with a controlled 51 substance as defined in section 130.90, labor trafficking as defined in 52 paragraphs (a) and (b) of subdivision three of section 135.35, criminal 53 possession of a weapon in the third degree as defined in subdivision 54 five, six, seven, eight, nine or ten of section 265.02, criminal sale of 55 a firearm in the third degree as defined in section 265.11, intimidating 56 a victim or witness in the second degree as defined in section 215.16,

S. 4040 3 1 endangering the welfare of a vulnerable elderly person in the first 2 degree as defined in section 260.34, soliciting or providing support for 3 an act of terrorism in the second degree as defined in section 490.10, 4 and making a terroristic threat as defined in section 490.20, falsely 5 reporting an incident in the first degree as defined in section 240.60, 6 placing a false bomb or hazardous substance in the first degree as 7 defined in section 240.62, placing a false bomb or hazardous substance 8 in a sports stadium or arena, mass transportation facility or enclosed 9 shopping mall as defined in section 240.63, and aggravated unpermitted 10 use of indoor pyrotechnics in the first degree as defined in section 11 405.18. 12 (d) Class E violent felony offenses: endangering the welfare of a 13 vulnerable elderly person in the second degree as defined in section 14 260.32, an attempt to commit any of the felonies of criminal possession 15 of a weapon in the third degree as defined in subdivision five, six, 16 seven or eight of section 265.02 as a lesser included offense of that 17 section as defined in section 220.20 of the criminal procedure law, 18 persistent sexual abuse as defined in section 130.53, aggravated sexual 19 abuse in the fourth degree as defined in section 130.65-a, falsely 20 reporting an incident in the second degree as defined in section 240.55 21 and placing a false bomb or hazardous substance in the second degree as 22 defined in section 240.61. 23 § 5. Part 4 of the penal law is amended by adding a new title Y-3 to 24 read as follows: 25 TITLE Y-3 26 CRIMES AGAINST THE 27 ELDERLY OR DISABLED 28 ARTICLE 497 29 CRIMES AGAINST THE 30 ELDERLY OR DISABLED 31 Section 497.00 Crimes against the elderly or disabled. 32 497.05 Sentencing. 33 § 497.00 Crimes against the elderly or disabled. 34 1. A person commits a crime against the elderly or disabled when he or 35 she commits a specified offense and either: 36 (a) intentionally selects the person against whom the offense is 37 committed or intended to be committed in whole or in substantial part 38 because of a belief or perception regarding the disability status or age 39 related infirmity or disease of a person, regardless of whether the 40 belief or perception is correct; or 41 (b) intentionally commits the act or acts constituting the offense in 42 whole or in substantial part because of a belief or perception regarding 43 disability status or age related infirmity or disease of a person, 44 regardless of whether the belief or perception is correct. 45 2. For the purpose of this section: (a) when a person reasonably 46 appears to have a disability or an age related infirmity or disease, 47 there shall be a rebuttable presumption the defendant selected the 48 person against whom the offense or act is committed or intended to be 49 committed, in whole or in part because of a belief or perception regard- 50 ing the disability status or age related infirmity or disease of such 51 person; and (b) when a person is seventy years old or more, there shall 52 be a rebuttable presumption that such person appears to have a disabili- 53 ty or an age related infirmity. 54 3. A "specified offense" is an offense defined by any of the following 55 provisions of this chapter: section 120.00 (assault in the third 56 degree); section 120.05 (assault in the second degree); section 120.10

S. 4040 4 1 (assault in the first degree); section 120.12 (aggravated assault upon a 2 person less than eleven years old); section 120.13 (menacing in the 3 first degree); section 120.14 (menacing in the second degree); section 4 120.15 (menacing in the third degree); section 120.20 (reckless endan- 5 germent in the second degree); section 120.25 (reckless endangerment in 6 the first degree); section 120.45 (stalking in the fourth degree); 7 section 120.50 (stalking in the third degree); section 120.55 (stalking 8 in the second degree); section 120.60 (stalking in the first degree); 9 subdivision one of section 125.15 (manslaughter in the second degree); 10 subdivision one, two or four of section 125.20 (manslaughter in the 11 first degree); section 125.25 (murder in the second degree); subdivision 12 one of section 130.35 (rape in the first degree); subdivision one of 13 section 130.50 (criminal sexual act in the first degree); subdivision 14 one of section 130.65 (sexual abuse in the first degree); paragraph (a) 15 of subdivision one of section 130.67 (aggravated sexual abuse in the 16 second degree); paragraph (a) of subdivision one of section 130.70 17 (aggravated sexual abuse in the first degree); section 135.05 (unlawful 18 imprisonment in the second degree); section 135.10 (unlawful imprison- 19 ment in the first degree); section 135.20 (kidnapping in the second 20 degree); section 135.25 (kidnapping in the first degree); section 135.60 21 (coercion in the second degree); section 135.65 (coercion in the first 22 degree); section 140.10 (criminal trespass in the third degree); section 23 140.15 (criminal trespass in the second degree); section 140.17 (crimi- 24 nal trespass in the first degree); section 140.20 (burglary in the third 25 degree); section 140.25 (burglary in the second degree); section 140.30 26 (burglary in the first degree); section 145.00 (criminal mischief in the 27 fourth degree); section 145.05 (criminal mischief in the third degree); 28 section 145.10 (criminal mischief in the second degree); section 145.12 29 (criminal mischief in the first degree); section 150.05 (arson in the 30 fourth degree); section 150.10 (arson in the third degree); section 31 150.15 (arson in the second degree); section 150.20 (arson in the first 32 degree); section 155.25 (petit larceny); section 155.30 (grand larceny 33 in the fourth degree); section 155.35 (grand larceny in the third 34 degree); section 155.40 (grand larceny in the second degree); section 35 155.42 (grand larceny in the first degree); section 160.05 (robbery in 36 the third degree); section 160.10 (robbery in the second degree); 37 section 160.15 (robbery in the first degree); section 240.25 (harassment 38 in the first degree); subdivision one, two or four of section 240.30 39 (aggravated harassment in the second degree); or any attempt or conspir- 40 acy to commit any of the foregoing offenses. 41 4. For the purposes of this section: 42 (a) A person has an age related infirmity or disease when, being sixty 43 years old or more, such person has a physical or mental disease or 44 infirmity, typically associated with advanced age, which substantially 45 limits a major life activity; 46 (b) The term "substantial part" includes but is not limited to circum- 47 stances in which a defendant selects a person against whom to commit or 48 attempt to commit a crime due to a belief or perception that such person 49 is less likely to resist or be able to resist such crime due to their 50 disability or age related infirmity or disease, regardless of whether 51 such belief or perception is correct; 52 (c) The term "disability" means a physical or mental impairment that 53 substantially limits a major life activity; and 54 (d) The term "resist" includes, in addition to its regular meaning, 55 reporting such crime to law enforcement, observing, recalling, or 56 reporting key features of any act or characteristic of a defendant

S. 4040 5 1 related to such crime, or providing evidence to aid in the investigation 2 or prosecution of such crime. 3 § 497.05 Sentencing. 4 1. When a person is convicted of a crime against the elderly or disa- 5 bled pursuant to this article, and the specified offense is a violent 6 felony offense, as defined in section 70.02 of this chapter, the crime 7 against the elderly or disabled shall be deemed a violent felony 8 offense. 9 2. When a person is convicted of a crime against the elderly or disa- 10 bled pursuant to this article and the specified offense is a misdemeanor 11 or a class C, D or E felony, the crime against the elderly or disabled 12 shall be deemed to be one category higher than the specified offense the 13 defendant committed, or one category higher than the offense level 14 applicable to the defendant's conviction for an attempt or conspiracy to 15 commit a specified offense, whichever is applicable. 16 3. Notwithstanding any other provision of law, when a person is 17 convicted of a crime against the elderly or disabled pursuant to this 18 article and the specified offense is a class B felony offense: 19 (a) the maximum term of the indeterminate sentence must be at least 20 six years if the defendant is sentenced pursuant to section 70.00 of 21 this chapter; 22 (b) the term of the determinate sentence must be at least eight years 23 if the defendant is sentenced pursuant to section 70.02 of this chapter; 24 (c) the term of the determinate sentence must be at least twelve years 25 if the defendant is sentenced pursuant to section 70.04 of this chapter; 26 (d) the maximum term of the indeterminate sentence must be at least 27 four years if the defendant is sentenced pursuant to section 70.05 of 28 this chapter; and 29 (e) the maximum term of the indeterminate sentence or the term of the 30 determinate sentence must be at least ten years if the defendant is 31 sentenced pursuant to section 70.06 of this chapter. 32 4. Notwithstanding any other provision of law, when a person is 33 convicted of crime against the elderly or disabled pursuant to this 34 article and the specified offense is a class A-1 felony, the minimum 35 period of the indeterminate sentence shall be not less than twenty 36 years. 37 § 6. Subdivisions 4 and 7 of section 200.50 of the criminal procedure 38 law, subdivision 4 as amended by section 15 of subpart A of part H of 39 chapter 55 of the laws of 2014 and subdivision 7 as amended by chapter 7 40 of the laws of 2007, are amended to read as follows: 41 4. A statement in each count that the grand jury, or, where the accu- 42 satory instrument is a superior court information, the district attor- 43 ney, accuses the defendant or defendants of a designated offense, 44 provided that in any prosecution under article four hundred eighty-five 45 of the penal law, the designated offense shall be the specified offense, 46 as defined in subdivision three of section 485.05 of the penal law, 47 followed by the phrase "as a hate crime", and provided further that in 48 any prosecution under section 490.25 of the penal law, the designated 49 offense shall be the specified offense, as defined in subdivision three 50 of section 490.05 of the penal law, followed by the phrase "as a crime 51 of terrorism"; and provided further that in any prosecution under 52 section 130.91 of the penal law, the designated offense shall be the 53 specified offense, as defined in subdivision two of section 130.91 of 54 the penal law, followed by the phrase "as a sexually motivated felony"; 55 and provided further that in any prosecution under section 497.00 of the 56 penal law, the designated offense shall be the specified offense, as

S. 4040 6 1 defined in subdivision three of section 497.00 of the penal law, 2 followed by the phrase "as a crime against the elderly or disabled"; and 3 provided further that in any prosecution under section 496.06 of the 4 penal law, the designated offense shall be the specified offense, as 5 defined in subdivision two of such section, followed by the phrase "as a 6 public corruption crime"; and 7 7. A plain and concise factual statement in each count which, without 8 allegations of an evidentiary nature, 9 (a) asserts facts supporting every element of the offense charged and 10 the defendant's or defendants' commission thereof with sufficient preci- 11 sion to clearly apprise the defendant or defendants of the conduct which 12 is the subject of the accusation; and 13 (b) in the case of any armed felony, as defined in subdivision forty- 14 one of section 1.20, states that such offense is an armed felony and 15 specifies the particular implement the defendant or defendants 16 possessed, were armed with, used or displayed or, in the case of an 17 implement displayed, specifies what the implement appeared to be; and 18 (c) in the case of any hate crime, as defined in section 485.05 of the 19 penal law, specifies, as applicable, that the defendant or defendants 20 intentionally selected the person against whom the offense was committed 21 or intended to be committed; or intentionally committed the act or acts 22 constituting the offense, in whole or in substantial part because of a 23 belief or perception regarding the race, color, national origin, ances- 24 try, gender, religion, religious practice, age, disability or sexual 25 orientation of a person; and 26 (d) in the case of a crime of terrorism, as defined in section 490.25 27 of the penal law, specifies, as applicable, that the defendant or 28 defendants acted with intent to intimidate or coerce a civilian popu- 29 lation, influence the policy of a unit of government by intimidation or 30 coercion, or affect the conduct of a unit of government by murder, 31 assassination or kidnapping; and 32 (e) in the case of a sexually motivated felony, as defined in section 33 130.91 of the penal law, asserts facts supporting the allegation that 34 the offense was sexually motivated; and 35 (f) in the case of any crime against the elderly or disabled, as 36 defined in section 497.00 of the penal law, specifies, as applicable, 37 that the defendant or defendants intentionally selected the person 38 against whom the offense was committed or intended to be committed; or 39 intentionally committed the act or acts constituting the offense, in 40 whole or in substantial part because of a belief or perception regarding 41 the disability status or age related infirmity or disease of a person; 42 and 43 § 7. This act shall take effect on the first of November next succeed- 44 ing the date on which it shall have become a law.

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