STATE OF NEW YORK ________________________________________________________________________ 175 2021-2022 Regular Sessions IN SENATE (Prefiled) January 6, 2021 ___________ 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03437-01-1

S. 175 2 1 adequately providing for his or her own health or personal care or a 2 person seventy years of age or older. 3 [4.] 3. "Incompetent or physically disabled person" means an individ- 4 ual who is unable to care for himself or herself because of physical 5 disability, mental disease or defect. 6 § 2. The opening paragraph and subdivision 4 of section 260.32 of the 7 penal law, as amended by chapter 14 of the laws of 2010, are amended to 8 read as follows: 9 A person is guilty of endangering the welfare of a vulnerable elderly 10 person, or an incompetent or physically disabled person in the second 11 degree when[~~, being a caregiver for a vulnerable elderly person, or an~~ 12 ~~incompetent or physically disabled person~~]: 13 4. He or she subjects such person to sexual contact without the 14 latter's consent. Lack of consent under this subdivision results from 15 forcible compulsion or incapacity to consent, as those terms are defined 16 in article one hundred thirty of this [~~chapter~~] part, or any other 17 circumstances in which the vulnerable elderly person, or an incompetent 18 or physically disabled person does not expressly or impliedly acquiesce 19 [~~in the caregiver's conduct~~]. In any prosecution under this subdivision 20 in which the victim's alleged lack of consent results solely from inca- 21 pacity to consent because of the victim's mental disability or mental 22 incapacity, the provisions of section 130.16 of this [~~chapter~~] part 23 shall apply. In addition, in any prosecution under this subdivision in 24 which the victim's lack of consent is based solely upon his or her inca- 25 pacity to consent because he or she was mentally disabled, mentally 26 incapacitated or physically helpless, it is an affirmative defense that 27 the defendant, at the time he or she engaged in the conduct constituting 28 the offense, did not know of the facts or conditions responsible for 29 such incapacity to consent. 30 § 3. The opening paragraph of section 260.34 of the penal law, as 31 amended by chapter 14 of the laws of 2010, is amended to read as 32 follows: 33 A person is guilty of endangering the welfare of a vulnerable elderly 34 person, or an incompetent or physically disabled person in the first 35 degree when[~~, being a caregiver for a vulnerable elderly person, or an~~ 36 ~~incompetent or physically disabled person~~]: 37 § 4. Paragraphs (c) and (d) of subdivision 1 of section 70.02 of the 38 penal law, paragraph (c) as amended by chapter 134 of the laws of 2019 39 and paragraph (d) as amended by chapter 7 of the laws of 2007, are 40 amended to read as follows: 41 (c) Class D violent felony offenses: an attempt to commit any of the 42 class C felonies set forth in paragraph (b); reckless assault of a child 43 as defined in section 120.02, assault in the second degree as defined in 44 section 120.05, menacing a police officer or peace officer as defined in 45 section 120.18, stalking in the first degree, as defined in subdivision 46 one of section 120.60, strangulation in the second degree as defined in 47 section 121.12, rape in the second degree as defined in section 130.30, 48 criminal sexual act in the second degree as defined in section 130.45, 49 sexual abuse in the first degree as defined in section 130.65, course of 50 sexual conduct against a child in the second degree as defined in 51 section 130.80, aggravated sexual abuse in the third degree as defined 52 in section 130.66, facilitating a sex offense with a controlled 53 substance as defined in section 130.90, labor trafficking as defined in 54 paragraphs (a) and (b) of subdivision three of section 135.35, criminal 55 possession of a weapon in the third degree as defined in subdivision 56 five, six, seven, eight, nine or ten of section 265.02, criminal sale of

S. 175 3 1 a firearm in the third degree as defined in section 265.11, intimidating 2 a victim or witness in the second degree as defined in section 215.16, 3 endangering the welfare of a vulnerable elderly person in the first 4 degree as defined in section 260.34, soliciting or providing support for 5 an act of terrorism in the second degree as defined in section 490.10, 6 and making a terroristic threat as defined in section 490.20, falsely 7 reporting an incident in the first degree as defined in section 240.60, 8 placing a false bomb or hazardous substance in the first degree as 9 defined in section 240.62, placing a false bomb or hazardous substance 10 in a sports stadium or arena, mass transportation facility or enclosed 11 shopping mall as defined in section 240.63, aggravated unpermitted use 12 of indoor pyrotechnics in the first degree as defined in section 405.18, 13 and criminal manufacture, sale, or transport of an undetectable firearm, 14 rifle or shotgun as defined in section 265.50. 15 (d) Class E violent felony offenses: endangering the welfare of a 16 vulnerable elderly person in the second degree as defined in section 17 260.32, an attempt to commit any of the felonies of criminal possession 18 of a weapon in the third degree as defined in subdivision five, six, 19 seven or eight of section 265.02 as a lesser included offense of that 20 section as defined in section 220.20 of the criminal procedure law, 21 persistent sexual abuse as defined in section 130.53, aggravated sexual 22 abuse in the fourth degree as defined in section 130.65-a, falsely 23 reporting an incident in the second degree as defined in section 240.55 24 and placing a false bomb or hazardous substance in the second degree as 25 defined in section 240.61. 26 § 5. Part 4 of the penal law is amended by adding a new title Y-3 to 27 read as follows: 28 TITLE Y-3 29 CRIMES AGAINST THE 30 ELDERLY OR DISABLED 31 ARTICLE 497 32 CRIMES AGAINST THE 33 ELDERLY OR DISABLED 34 Section 497.00 Crimes against the elderly or disabled. 35 497.05 Sentencing. 36 § 497.00 Crimes against the elderly or disabled. 37 1. A person commits a crime against the elderly or disabled when he or 38 she commits a specified offense and either: 39 (a) intentionally selects the person against whom the offense is 40 committed or intended to be committed in whole or in substantial part 41 because of a belief or perception regarding the disability status or age 42 related infirmity or disease of a person, regardless of whether the 43 belief or perception is correct; or 44 (b) intentionally commits the act or acts constituting the offense in 45 whole or in substantial part because of a belief or perception regarding 46 disability status or age related infirmity or disease of a person, 47 regardless of whether the belief or perception is correct. 48 2. For the purpose of this section: (a) when a person reasonably 49 appears to have a disability or an age related infirmity or disease, 50 there shall be a rebuttable presumption the defendant selected the 51 person against whom the offense or act is committed or intended to be 52 committed, in whole or in part because of a belief or perception regard- 53 ing the disability status or age related infirmity or disease of such 54 person; and (b) when a person is seventy years old or more, there shall 55 be a rebuttable presumption that such person appears to have a disabili- 56 ty or an age related infirmity.

S. 175 4 1 3. A "specified offense" is an offense defined by any of the following 2 provisions of this chapter: section 120.00 (assault in the third 3 degree); section 120.05 (assault in the second degree); section 120.10 4 (assault in the first degree); section 120.12 (aggravated assault upon a 5 person less than eleven years old); section 120.13 (menacing in the 6 first degree); section 120.14 (menacing in the second degree); section 7 120.15 (menacing in the third degree); section 120.20 (reckless endan- 8 germent in the second degree); section 120.25 (reckless endangerment in 9 the first degree); section 120.45 (stalking in the fourth degree); 10 section 120.50 (stalking in the third degree); section 120.55 (stalking 11 in the second degree); section 120.60 (stalking in the first degree); 12 subdivision one of section 125.15 (manslaughter in the second degree); 13 subdivision one, two or four of section 125.20 (manslaughter in the 14 first degree); section 125.25 (murder in the second degree); subdivision 15 one of section 130.35 (rape in the first degree); subdivision one of 16 section 130.50 (criminal sexual act in the first degree); subdivision 17 one of section 130.65 (sexual abuse in the first degree); paragraph (a) 18 of subdivision one of section 130.67 (aggravated sexual abuse in the 19 second degree); paragraph (a) of subdivision one of section 130.70 20 (aggravated sexual abuse in the first degree); section 135.05 (unlawful 21 imprisonment in the second degree); section 135.10 (unlawful imprison- 22 ment in the first degree); section 135.20 (kidnapping in the second 23 degree); section 135.25 (kidnapping in the first degree); section 135.60 24 (coercion in the second degree); section 135.65 (coercion in the first 25 degree); section 140.10 (criminal trespass in the third degree); section 26 140.15 (criminal trespass in the second degree); section 140.17 (crimi- 27 nal trespass in the first degree); section 140.20 (burglary in the third 28 degree); section 140.25 (burglary in the second degree); section 140.30 29 (burglary in the first degree); section 145.00 (criminal mischief in the 30 fourth degree); section 145.05 (criminal mischief in the third degree); 31 section 145.10 (criminal mischief in the second degree); section 145.12 32 (criminal mischief in the first degree); section 150.05 (arson in the 33 fourth degree); section 150.10 (arson in the third degree); section 34 150.15 (arson in the second degree); section 150.20 (arson in the first 35 degree); section 155.25 (petit larceny); section 155.30 (grand larceny 36 in the fourth degree); section 155.35 (grand larceny in the third 37 degree); section 155.40 (grand larceny in the second degree); section 38 155.42 (grand larceny in the first degree); section 160.05 (robbery in 39 the third degree); section 160.10 (robbery in the second degree); 40 section 160.15 (robbery in the first degree); section 240.25 (harassment 41 in the first degree); subdivision one, two or four of section 240.30 42 (aggravated harassment in the second degree); or any attempt or conspir- 43 acy to commit any of the foregoing offenses. 44 4. For the purposes of this section: 45 (a) A person has an age related infirmity or disease when, being sixty 46 years old or more, such person has a physical or mental disease or 47 infirmity, typically associated with advanced age, which substantially 48 limits a major life activity; 49 (b) The term "substantial part" includes but is not limited to circum- 50 stances in which a defendant selects a person against whom to commit or 51 attempt to commit a crime due to a belief or perception that such person 52 is less likely to resist or be able to resist such crime due to their 53 disability or age related infirmity or disease, regardless of whether 54 such belief or perception is correct; 55 (c) The term "disability" means a physical or mental impairment that 56 substantially limits a major life activity; and

S. 175 5 1 (d) The term "resist" includes, in addition to its regular meaning, 2 reporting such crime to law enforcement, observing, recalling, or 3 reporting key features of any act or characteristic of a defendant 4 related to such crime, or providing evidence to aid in the investigation 5 or prosecution of such crime. 6 § 497.05 Sentencing. 7 1. When a person is convicted of a crime against the elderly or disa- 8 bled pursuant to this article, and the specified offense is a violent 9 felony offense, as defined in section 70.02 of this chapter, the crime 10 against the elderly or disabled shall be deemed a violent felony 11 offense. 12 2. When a person is convicted of a crime against the elderly or disa- 13 bled pursuant to this article and the specified offense is a misdemeanor 14 or a class C, D or E felony, the crime against the elderly or disabled 15 shall be deemed to be one category higher than the specified offense the 16 defendant committed, or one category higher than the offense level 17 applicable to the defendant's conviction for an attempt or conspiracy to 18 commit a specified offense, whichever is applicable. 19 3. Notwithstanding any other provision of law, when a person is 20 convicted of a crime against the elderly or disabled pursuant to this 21 article and the specified offense is a class B felony offense: 22 (a) the maximum term of the indeterminate sentence must be at least 23 six years if the defendant is sentenced pursuant to section 70.00 of 24 this chapter; 25 (b) the term of the determinate sentence must be at least eight years 26 if the defendant is sentenced pursuant to section 70.02 of this chapter; 27 (c) the term of the determinate sentence must be at least twelve years 28 if the defendant is sentenced pursuant to section 70.04 of this chapter; 29 (d) the maximum term of the indeterminate sentence must be at least 30 four years if the defendant is sentenced pursuant to section 70.05 of 31 this chapter; and 32 (e) the maximum term of the indeterminate sentence or the term of the 33 determinate sentence must be at least ten years if the defendant is 34 sentenced pursuant to section 70.06 of this chapter. 35 4. Notwithstanding any other provision of law, when a person is 36 convicted of crime against the elderly or disabled pursuant to this 37 article and the specified offense is a class A-1 felony, the minimum 38 period of the indeterminate sentence shall be not less than twenty 39 years. 40 § 6. Subdivisions 4 and 7 of section 200.50 of the criminal procedure 41 law, subdivision 4 as amended by section 15 of subpart A of part H of 42 chapter 55 of the laws of 2014, subdivision 7 as amended by chapter 7 of 43 the laws of 2007, and paragraph (c) of subdivision 7 as amended by chap- 44 ter 8 of the laws of 2019, are amended to read as follows: 45 4. A statement in each count that the grand jury, or, where the accu- 46 satory instrument is a superior court information, the district attor- 47 ney, accuses the defendant or defendants of a designated offense, 48 provided that in any prosecution under article four hundred eighty-five 49 of the penal law, the designated offense shall be the specified offense, 50 as defined in subdivision three of section 485.05 of the penal law, 51 followed by the phrase "as a hate crime", and provided further that in 52 any prosecution under section 490.25 of the penal law, the designated 53 offense shall be the specified offense, as defined in subdivision three 54 of section 490.05 of the penal law, followed by the phrase "as a crime 55 of terrorism"; and provided further that in any prosecution under 56 section 130.91 of the penal law, the designated offense shall be the

S. 175 6 1 specified offense, as defined in subdivision two of section 130.91 of 2 the penal law, followed by the phrase "as a sexually motivated felony"; 3 and provided further that in any prosecution under section 497.00 of the 4 penal law, the designated offense shall be the specified offense, as 5 defined in subdivision three of section 497.00 of the penal law, 6 followed by the phrase "as a crime against the elderly or disabled"; and 7 provided further that in any prosecution under section 496.06 of the 8 penal law, the designated offense shall be the specified offense, as 9 defined in subdivision two of such section, followed by the phrase "as a 10 public corruption crime"; and 11 7. A plain and concise factual statement in each count which, without 12 allegations of an evidentiary nature, 13 (a) asserts facts supporting every element of the offense charged and 14 the defendant's or defendants' commission thereof with sufficient preci- 15 sion to clearly apprise the defendant or defendants of the conduct which 16 is the subject of the accusation; and 17 (b) in the case of any armed felony, as defined in subdivision forty- 18 one of section 1.20, states that such offense is an armed felony and 19 specifies the particular implement the defendant or defendants 20 possessed, were armed with, used or displayed or, in the case of an 21 implement displayed, specifies what the implement appeared to be; and 22 (c) in the case of any hate crime, as defined in section 485.05 of the 23 penal law, specifies, as applicable, that the defendant or defendants 24 intentionally selected the person against whom the offense was committed 25 or intended to be committed; or intentionally committed the act or acts 26 constituting the offense, in whole or in substantial part because of a 27 belief or perception regarding the race, color, national origin, ances- 28 try, gender, gender identity or expression, religion, religious prac- 29 tice, age, disability or sexual orientation of a person; and 30 (d) in the case of a crime of terrorism, as defined in section 490.25 31 of the penal law, specifies, as applicable, that the defendant or 32 defendants acted with intent to intimidate or coerce a civilian popu- 33 lation, influence the policy of a unit of government by intimidation or 34 coercion, or affect the conduct of a unit of government by murder, 35 assassination or kidnapping; and 36 (e) in the case of a sexually motivated felony, as defined in section 37 130.91 of the penal law, asserts facts supporting the allegation that 38 the offense was sexually motivated; and 39 (f) in the case of any crime against the elderly or disabled, as 40 defined in section 497.00 of the penal law, specifies, as applicable, 41 that the defendant or defendants intentionally selected the person 42 against whom the offense was committed or intended to be committed; or 43 intentionally committed the act or acts constituting the offense, in 44 whole or in substantial part because of a belief or perception regarding 45 the disability status or age related infirmity or disease of a person; 46 and 47 § 7. This act shall take effect on the first of November next succeed- 48 ing the date on which it shall have become a law.

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