STATE OF NEW YORK
________________________________________________________________________
8823--A
2017-2018 Regular Sessions
IN ASSEMBLY
December 6, 2017
___________
Introduced by M. of A. BRAUNSTEIN, GALEF, GLICK, JAFFEE, M. G. MILLER,
MOSLEY, ZEBROWSKI, DINOWITZ, SKARTADOS, GOTTFRIED -- Multi-Sponsored
by -- M. of A. CROUCH -- read once and referred to the Committee on
Codes -- recommitted to the Committee on Codes in accordance with
Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the penal law, in relation to establishing incapacity to
consent when a person is under arrest, in detention or otherwise in
actual custody
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 130.05 of the penal law is amended
2 by adding a new paragraph (j) to read as follows:
3 (j) under arrest, in detention or otherwise in the actual custody of a
4 police officer, peace officer or other law enforcement official and the
5 actor is a police officer, peace officer or other law enforcement offi-
6 cial who either: (i) is responsible for effecting the arrest of such
7 person or maintaining such person in detention or actual custody; or
8 (ii) knows, or reasonably should know, that such person is under such
9 arrest, detention or actual custody.
10 § 2. Subdivision 4 of section 130.10 of the penal law, as amended by
11 chapter 205 of the laws of 2011, is amended to read as follows:
12 4. In any prosecution under this article in which the victim's lack of
13 consent is based solely on his or her incapacity to consent because he
14 or she was less than seventeen years old, mentally disabled, a client or
15 patient and the actor is a health care provider, under arrest, in
16 detention or otherwise in actual custody of law enforcement under the
17 circumstances described in paragraph (j) of subdivision three of section
18 130.05 of this article, or committed to the care and custody or super-
19 vision of the state department of corrections and community supervision
20 or a hospital and the actor is an employee, it shall be a defense that
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13726-03-8
A. 8823--A 2
1 the defendant was married to the victim as defined in subdivision four
2 of section 130.00 of this article.
3 § 3. This act shall take effect on the thirtieth day after it shall
4 have become a law.
