Harsher Sentences for Elder Abuse

Section 1. It is hereby found and declared that elderly and physically disabled people continue to be singled out as victims of crime. It is also found that the physical harm and emotional trauma suffered by elderly and physically disabled crime victims has a devastating effect on the lives of those victims.

The elderly or physically disabled victim has a decreased physical capability to resist an attacker and thus becomes an inviting target of crime. Moreover, the aftereffects of crime on the elderly and the physically handicapped affect them more deeply than any statistics would indicate. The emotional trauma and possible serious physical damage resulting from a face to face crime may cause a permanent downgrading in the elderly or physically disabled victim's lifestyle. Such victims often impose "house-arrest" on themselves, afraid to shop, to visit friends, to go to the doctor, to live, unless behind locked doors. Even those elderly or physically disabled who are not direct victims of crime suffer indirectly, because they, having learned of the terrible tragedy suffered by other elderly and physically disabled and fearful for their own individual safety, barricade themselves within their homes. The older or physically disabled crime victim is thus twice victimized--by the crime and by its aftermath.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD06979-01-7

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Criminologists, sociologists, psychologists, and the police all recognize and acknowledge these facts, but the law does not. It has been ineffective in deterring crimes against the elderly and the physically disabled, particularly those involving violence or the threat of violence. Similarly, special projects on crime prevention and improved techniques of communications for the elderly to the police do not halt or reduce such crime. For these reasons, offenses committed against the elderly or the physically disabled must be treated as unique, and legislation must be enacted to provide a meaningful deterrent for those offenders who now victimize the elderly and the physically disabled.

§ 2. Subdivision 18 of section 10.00 of the penal law, as amended by chapter 7 of the laws of 2007, is amended to read as follows:

18. "Juvenile offender" means (1) a person thirteen years old who is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 of this chapter or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of [the penal law] this chapter; and

(2) a person fourteen or fifteen years old who is criminally responsible for acts constituting the crimes defined in subdivisions one and two of section 125.25 (murder in the second degree) and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; section 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree); subdivisions one and two of section 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); subdivisions one and two of section 130.35 (rape in the first degree); subdivisions one and two of section 130.50 (criminal sexual act in the first degree); 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree); 160.15 (robbery in the first degree); subdivision two of section 160.10 (robbery in the second degree) of this chapter; or section 265.03 of this chapter, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter; or defined in this chapter as an attempt to commit murder in the second degree or kidnapping in the first degree; section 280.00 (victimizing the elderly or the physically disabled in the third degree); section 280.05 (victimizing the elderly or the physically disabled in the second degree); or section 280.10 (victimizing the elderly or the physically disabled in the first degree), or such conduct as a sexually motivated felony, where authorized pursuant to section 130.91 of [the penal law] this chapter.

§ 3. Section 10.00 of the penal law is amended by adding three new subdivisions 22, 23 and 24 to read as follows:

22. "Elderly person" means a human being sixty-two years old or more.

23. "Victim", as that term is used in article two hundred eighty of this chapter, means, in a case of:

(a) assault, the person injured or intended to be injured;

(b) manslaughter or murder, the person killed or intended to be killed or injured;

(c) rape or criminal sexual act, the person with whom the defendant has the sexual intercourse or deviate sexual intercourse;

(d) kidnapping, the person abducted;

(e) burglary or robbery, the person injured, or against whom a dangerous instrument is or is threatened to be used, or to whom the weapon is displayed;

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(f) arson, the person present in the building at the time; or

(g) larceny, the person in whom fear is instilled.

24. "Physically disabled person" means a human being:

(a) having an impairment requiring the use of leg braces, crutches or artificial support, or

(b) having an impairment requiring confinement to a wheelchair, or

(c) having an impairment caused by amputation of a limb, or

(d) having total or partial impairment of sight necessitating the use of a guide dog or other guiding device.

§ 4. The penal law is amended by adding a new article 280 to read as follows:

ARTICLE 280

OFFENSES AGAINST THE ELDERLY OR PHYSICALLY DISABLED Section 280.00 Victimizing the elderly or the physically disabled in the

third degree.

280.05 Victimizing the elderly or the physically disabled in the

second degree.

280.10 Victimizing the elderly or the physically disabled in the

first degree. § 280.00 Victimizing the elderly or the physically disabled in the third

degree.

A person is guilty of victimizing the elderly or the physically disabled in the third degree when he or she:

1. Commits any of the following felonies:

Attempt to commit victimizing the elderly or the physically disabled in the second degree as defined in section 280.05, or assault in the second degree as defined in section 120.05; and

2. The victim of such crime is an elderly person or a physically disabled person.

Victimizing the elderly or the physically disabled in the third degree is a class D felony. § 280.05 Victimizing the elderly or the physically disabled in the

second degree.

A person is guilty of victimizing the elderly or the physically disabled in the second degree when he or she:

1. Commits any of the following felonies:

Attempt to commit victimizing the elderly or the physically disabled in the first degree as defined in section 280.10, assault in the first degree as defined in section 120.10, burglary in the second degree as defined in paragraph (b), (c), or (d) of subdivision one of section 140.25, grand larceny in the second degree as defined in clause (a) of subdivision two of section 155.40, or robbery in the second degree as defined in subdivision two of section 160.10; and

2. The victim of such crime is an elderly person or a physically disabled person.

Victimizing the elderly or the physically disabled in the second degree is a class C felony. § 280.10 Victimizing the elderly or the physically disabled in the first

degree.

A person is guilty of victimizing the elderly or the physically disabled in the first degree when he or she:

1. Commits any of the following felonies:

Attempt to commit a class A-I felony other than an offense defined in article two hundred twenty, manslaughter in the first degree as defined in section 125.20, rape in the first degree as defined in section 130.35, criminal sexual act in the first degree as defined in section

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130.50, kidnapping in the second degree as defined in section 135.20, burglary in the first degree as defined in subdivision two, three or four of section 140.30, or robbery in the first degree as defined in subdivision one, three or four of section 160.15; and

2. The victim of such crime is an elderly person or a physically disabled person.

Victimizing the elderly or the physically disabled in the first degree is a class B felony.

§ 5. Section 60.05 of the penal law, as amended by chapter 410 of the laws of 1979, the section heading and subdivisions 2, 3 and 4 as amended by chapter 738 of the laws of 2004, subdivision 1 as amended by chapter 7 of the laws of 2007 and subdivision 5 as amended by chapter 405 of the laws of 2010, is amended to read as follows: § 60.05 Authorized dispositions; other class A, B, certain C and D felo-

nies and multiple felony offenders.

1. Applicability. Except as provided in section 60.04 of this article governing the authorized dispositions applicable to felony offenses defined in article two hundred twenty or two hundred twenty-one of this chapter or in section 60.13 of this article governing the authorized dispositions applicable to felony sex offenses defined in paragraph (a) of subdivision one of section 70.80 of this title, this section shall govern the dispositions authorized when a person is to be sentenced upon a conviction of a class A felony, a class B felony or a class C, class D or class E felony specified herein, or when a person is to be sentenced upon a conviction of a felony as a multiple felony offender.

2. Class A felony. Except as provided in subdivision seven of this section and subdivisions three and four of section 70.06 of this chapter, every person convicted of a class A felony must be sentenced to imprisonment in accordance with section 70.00 of this title, unless such person is convicted of murder in the first degree and is sentenced in accordance with section 60.06 of this article.

3. Class B felony. Except as provided in [subdivision] subdivisions six and seven of this section, every person convicted of a class B violent felony offense as defined in subdivision one of section 70.02 of this title, must be sentenced to imprisonment in accordance with such section 70.02; and, except as provided in subdivision six of this section, every person convicted of any other class B felony must be sentenced to imprisonment in accordance with section 70.00 of this title.

4. Certain class C felonies. Except as provided in [subdivision] subdivisions six and seven, every person convicted of a class C violent felony offense as defined in subdivision one of section 70.02 of this title, must be sentenced to imprisonment in accordance with section 70.02 of this title; and, except as provided in subdivision six of this section, every person convicted of the class C felonies of: attempt to commit any of the class B felonies of bribery in the first degree as defined in section 200.04, bribe receiving in the first degree as defined in section 200.12, conspiracy in the second degree as defined in section 105.15 and criminal mischief in the first degree as defined in section 145.12; criminal usury in the first degree as defined in section 190.42, rewarding official misconduct in the first degree as defined in section 200.22, receiving reward for official misconduct in the first degree as defined in section 200.27, attempt to promote prostitution in the first degree as defined in section 230.32, promoting prostitution in the second degree as defined in section 230.30, arson in the third

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degree as defined in section 150.10 of this chapter, must be sentenced to imprisonment in accordance with section 70.00 of this title.

5. Certain class D felonies. Except as provided in subdivision six of this section, every person convicted of the class D felonies of assault in the second degree as defined in section 120.05, strangulation in the second degree as defined in section 121.12 or attempt to commit a class C felony as defined in section 230.30 of this chapter, must be sentenced in accordance with section 70.00 or 85.00 of this title.

6. Multiple felony offender. When the court imposes sentence upon a second violent felony offender, as defined in section 70.04, or a second felony offender, as defined in section 70.06, the court must impose a sentence of imprisonment in accordance with section 70.04 or 70.06, as the case may be, unless it imposes a sentence of imprisonment in accordance with section 70.08 or 70.10.

7. Article two hundred eighty offenses. When the court imposes sentence upon a person convicted of an offense enumerated in article two hundred eighty, it must impose a sentence of imprisonment in accordance with section 70.09, unless it imposes a sentence of imprisonment in accordance with section 70.06 or 70.10.

8. Fines. Where the court imposes a sentence of imprisonment in accordance with this section, the court also may impose a fine authorized by article eighty and in such case the sentence shall be both imprisonment and a fine.

§ 6. The penal law is amended by adding a new section 70.09 to read as follows: § 70.09 Sentence of imprisonment for certain offenses against the elder-

ly or the physically disabled.