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A04330 Summary:

COSPNSRCymbrowitz, Colton, Galef
Amd 10.00 & 120.05, Pen L
Includes within the provisions of the class D felony of assault in the second degree, the reckless causation of serious physical injury to a child under seven years of age, by a person eighteen years of age or older; provides that "serious physical injury", for the purposes of the penal law, shall include, in the case of a child under 7 years of age, subdural hemorrhage, intercranial hemorrhage and retinal hemorrhages.
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A04330 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Pretlow
  TITLE OF BILL: An act to amend the penal law, in relation to the reckless assault of a child resulting in serious physical injury   PURPOSE: To include within the provisions of the class D felony of assault in the second degree, the reckless causation of serious physical injury to a child under 7 years of age, by a person 18 years of age or older.   SUMMARY OF PROVISIONS: Section 1 of the bill would add to the definition of "serious physical injury", in the cases of children under the age of seven, subdural hemorrhage, intra cranial hemorrhage or retinal hemorrhages. Section 2 of the bill would amend section 120.05 to add a provision making those eighteen and older who recklessly cause serious physical injury to a child under the age of seven guilty of the crime of Assault in the second degree and also make certain technical conforming changes to the statute.   JUSTIFICATION: On November 17, 2000, 8 month old Cynthia Gibbs died from a depressed skull fracture and bleeding on both sides of her brain, allegedly at the hands of her State certified baby sitter. Often in New York State chil- dren are murdered and the indictment of murder is never sought, manslaughter is. Shaken Baby/Shaken Impact Syndrome is a form of child abuse. It results from violently shaking a baby, with or without injury to the head. However, because intent to kill must be clear, the defend- ant is prosecuted as manslaughter. Under current law, there are protections for children from intentional assault contained in the crimes of Assault in the first degree ("B" felony), Assault in the second degree ("D" felony) and Assault in the Third Degree ("A" misde- meanor). Yet for victims of reckless assault, protections are only contained in crimes of Assault in the First Degree ("B" felony) and Assault in the third degree ("A" misdemeanor). There is no intermediate level of assault. Thus, if a defendant commits a reckless assault on a child that causes serious physical injury, if the People cannot estab- lish depraved indifference, the defendant can only be convicted of a misdemeanor. This can create grave injustices in cases like shaken baby syndrome and serious beating cases where children suffer grievous inju- ry, but the intent to injure cannot be demonstrated. The proposed statute will remedy the problem of proving intent to injure by a caregiver. However, this is not the only serious barrier to successful prosecutions for cases involving infants and very young chil- dren. Equally important, especially in the shaken baby cases, is our ability to prove serious physical injury at the time of the injury and thus at the time the perpetrator is charged with a crime. In cases where the baby survives, despite bleeding on the brain and the presence of retinal hemorrhage at the time that the injuries are inflicted, the long term effects do not necessarily manifest themselves for years; that is, the effects are not seen until the baby fails to reach age-appropri- ate developmental milestones. Thus, at the time of the injury, even with excellent medical intervention, the baby may look good, appear normal but have many intellectual, motor, or visual deficits down the road which are impossible to predict. At least two states have recognized the need for legislation to clarify what is required to prove serious physical injury in shaken baby cases. For example, the Rhode Island child abuse assault statutes define "seri- ous bodily injury" as "evidences of subdural hematoma, intra-cranial hemorrhage, and or retinal hemorrhages as signs of "Shaken baby syndrome and/or abusive head trauma". Similarly, the decade-old Utah child abuse statute defines "serious physical injury" as "intra-cranial bleeding, swelling or contusion of the brain; whether caused by blows, shaking, or causing the child's head to impact with an object or surface." A statutory definition of serious physical injury that includes the hallmark signs of shaken baby syndrome is critical because, unlike most other injuries, the injury caused by shaken baby syndrome cannot be detected by looking at the baby. In addition, infants and small children cannot testify about substantial pain and suffering, or about prolonged impairment of their health like older children and adult crime victims. When adults sustain a head injury, the impairment is evident: speech is impaired, movement is limited, they can tell you that their head hurts. Infants, on the other hand, cannot testify to these impairments. More- over, the medical profession has difficulty testifying to these impair- ments. Moreover, the medical profession has difficulty testifying to a reasonable degree of certainty that a shaken baby will not see, talk, think or walk normally months or years down the road as the child devel- ops. Finally, by adding to the definition of "serious physical injury" for child abuse cases as the legislatures did in Utah and Rhode Island, we would recognize the problem of prosecuting shaken baby cases in situ- ations where the child substantially recovers or prognosis is uncertain. In these cases, the recovery is the result of extraordinary medical procedures and lifesaving measures that in the short term inflict enor- mous pain and suffering on the child. Brain surgery and procedures, induced comas, insertion of shunts, and powerful medications may mini- mize long term effects of the shaking, but the injuries that necessitate these procedures should be covered by the definition of serious physical injury. In sum, adding the hallmark signs of Shaken Baby Syndrome to the defi- nition of serious physical injury will allow for more effective prose- cutions for what the American Academy of Pediatrics recognizes as "a clearly definable medical condition" and "a serious form of child maltreatment," which too often causes permanent disability or death.   LEGISLATIVE HISTORY: 01/06/16 A1768 referred to codes 01/12/15 A1768 referred to codes A.4345 2013-14 referred to codes. A.5840 2009/2010 referred to codes 2002: S.6105-B - Passed Senate/A.9850-B Referred to Codes   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
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A04330 Text:

                STATE OF NEW YORK
                               2017-2018 Regular Sessions
                   IN ASSEMBLY
                                    February 2, 2017
        Introduced  by  M. of A. PRETLOW, CYMBROWITZ, COLTON, GALEF -- read once
          and referred to the Committee on Codes
        AN ACT to amend the penal law, in relation to the reckless assault of  a
          child resulting in serious physical injury
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1.   Subdivision 10 of section 10.00  of  the  penal  law,  as
     2  amended  by  chapter  791  of  the  laws  of 1967, is amended to read as
     3  follows:
     4    10. "Serious physical injury" means physical injury  which  creates  a
     5  substantial  risk  of  death,  or  which  causes  death  or  serious and
     6  protracted disfigurement, protracted impairment of health or  protracted
     7  loss  or  impairment  of the function of any bodily organ, including, in
     8  the case of a child less than  seven  years  old,  subdural  hemorrhage,
     9  intercranial hemorrhage or retinal hemorrhages.
    10    §  2.  Paragraph  (b)  of subdivision 10 and subdivision 14 of section
    11  120.05 of the penal law, paragraph (b) of subdivision 10 as amended  and
    12  subdivision  14 as added by chapter 268 of the laws of 2016, are amended
    13  and a new subdivision 15 is added to read as follows:
    14    (b) not being a student of such  school  or  public  school  district,
    15  causes physical injury to another, and such other person is a student of
    16  such  school  who  is attending or present for educational purposes. For
    17  purposes of this subdivision the term "school grounds"  shall  have  the
    18  meaning  set  forth  in  subdivision  fourteen of section 220.00 of this
    19  [chapter] part; or
    20    14. With intent to prevent or obstruct a process server, as defined in
    21  section eighty-nine-t of the general business  law,  from  performing  a
    22  lawful  duty  pursuant  to  article  three of the civil practice law and
    23  rules, or intentionally, as retaliation against such  a  process  server
    24  for  the  performance  of  the  process server's duties pursuant to such
    25  article, including by means of releasing or failing to control an animal
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 4330                             2
     1  evincing the actor's intent that the  animal  prevent  or  obstruct  the
     2  lawful  duty of the process server or as retaliation against the process
     3  server, he or she causes physical injury to such process server[.]; or
     4    15.  Being  eighteen  years  old  or more, he or she recklessly causes
     5  serious physical injury to a child less than seven years old.
     6    § 3. This act shall take effect on the first of November next succeed-
     7  ing the date on which it shall have become a law.
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