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A05605 Summary:

BILL NOA05605
 
SAME ASNo Same As
 
SPONSORBarclay (MS)
 
COSPNSRMorinello, Miller, Smith, Mikulin, Norris, Gallahan, DeStefano, Giglio JM, Tague, Brabenec, Chang, Blumencranz, Angelino, Brook-Krasny
 
MLTSPNSRBrown K, Lemondes, Manktelow
 
Amd Pen L, generally; amd §30.10, CP L; amd §§213-c & 215, CPLR
 
Relates to crimes against a child; makes endangering the welfare of a child in the first degree a crime.
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A05605 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5605
 
SPONSOR: Barclay (MS)
  TITLE OF BILL: An act to amend the penal law, the criminal procedure law and the civil practice law and rules, in relation to crimes committed against a child   PURPOSE OR GENERAL IDEA OF BILL: This legislation will create stronger laws that will better protect children and will help in the prosecution of those who abuse children.   SUMMARY OF PROVISIONS: Section 1: Amends Penal Law § 260.10 by changing the current crime of endangering the welfare of a child into endangering the welfare of a child in the second degree. Section 2: Renumbers current Penal Law § 260.11 to § 260.12. Section 3: Adds a new Penal Law § 260.11, endangering the welfare of a child in the first degree. Section 4: Amends Penal Law § 260.12 to include references to Penal Law §§ 260.11 and 260.12. Section 5: Amends Penal Law § 260.15 to include a reference to Penal law § 260.11. Section 6: Amends Criminal Procedure Law § 30.10(2)(a) to include a Penal Law § 130.95 predatory sexual offense or a Penal Law § 130.96 predatory sexual assault against a child in the list of crimes that do not have a Statute of Limitations. Section 7: Amends Civil Practice Law and Rules § 213-c by expanding civil claims to include a Penal Law § 130.95 predatory sexual offense or a Penal Law § 130.96 predatory sexual assault against a child in the list of crimes that under which a criminal victim can recover. Section 8: Amends Civil Practice Law and Rules § 215(8)(b) to include a Penal Law § 130.95 predatory sexual offense or a Penal Law § 130.96 predatory sexual assault against a child in the list of crimes that have a five year Statute of Limitations for civil recoveries. Section 9: Amends Criminal Procedure Law § 30.10(3)(f) to remove a stat- ute of limitations period of the earlier of age 18 or reporting to a law enforcement agency from a number of crimes committed against a child. Section 10: Amends Penal Law § 130.65(4) to change the actor's age from 21 to 18 for the crime of sexual abuse in the first degree. Sections 11 through 13: Amend Penal Law §§ 130.66(1)(c), § 130.67(1)(c), and § 130.70(1)(c) by adding to the crimes of aggravated sexual abuse in the third, second, and first degrees the option that the other person is less than 13 years old and the actor is age 18 or older, in addition to the current language that the other person be less than 11 years old. Section 14: Amends Penal Law § 70.02(1)(a) by removing a course of sexu- al conduct against a child in the first degree as defined in Penal Law § 130.75 from the list of Class B violent felony offenses for purposes of sentencing. Section 15: Amends Penal Law § 70.80(3) to add a course of sexual conduct against a child in the first degree to the list of sex offense crimes that require determinate sentencing. Section 16: Amends Penal Law § 70.02(1)(c) by removing a course of sexu- al conduct against a child in the second degree from the list of Class D violent felony offenses and amends Penal Law § 70.02(1)(b) by adding that offense,to the list of Class C violent felony offenses. Sections 17 and 18: Amend Penal Law § 130.75 (course of sexual conduct against a child in the first degree) and § 130.80 (course of sexual conduct against a child in the second degree) to include children in the crime of a course of conduct against a child and remove the requirement that it occur over a period of not less than three months. § 130.75 is increased from a B felony to a A-II felony; § 130.80 is increased from a D felony to a C felony. Section 19: Amends Penal Law § 130.53 to include in the definition of persistent sexual abuse sexual misconduct as defined in Penal Law § 130.20. Section 20: Amends Penal Law § 10.00 by adding a new subdivision 22, which defines "depraved indifference to human life." Section 21: Sets the effective date of the bill.   JUSTIFICATION: Crimes against children are the most abhorrent types of crimes and we need to do all we can to strengthen them. This omnibus bill is the direct result of talking with the local District Attorney and child advocates on how we can better protect children. The bill addresses current statutes pertaining to child abuse, sex abuse and murder.   FELONY OF ENDANGERING THE WELFARE OF A CHILD: Under current penal law, endangering the welfare of a child is a class a misdemeanor. A person is guilty of this crime if he or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old. Sadly, circumstances have arisen where children have been placed in extremely dangerous and unhealthy situations that have resulted in those children either being serious injured and even killed. Too often, under certain fact patterns, because no other crime exists, prosecutors have been constrained to charge the person putting the child in such circumstance with only a misdemeanor-a penalty that inadequately addresses the crime. This legislation attempts to create another tool for prosecutors by creating the crime of endangering the welfare of a child in the first degree which would be punishable as a class D felony. In order to be guilty of endangering the welfare of a child in the first degree, a person must knowingly act in a manner which creates a foreseeable risk of either serious physical injury or protracted harm to the mental or emotional welfare of a child less than seventeen years old. The qual- ifiers of "serious physical injury" or "protracted harm" are meant to limit this charge to the more egregious cases of someone endangering the welfare of a child. Also, unlike many other crimes in the penal law, there are no additional penalties for a person who has been convicted of endangering the welfare of a child on more than one occasion. It is strange that there is a felony charge for a person who has been convicted on multiple occasions of cruelty to animals but not for someone who has been convicted on multiple occasions of endangering the welfare of a child. Accordingly, under this legislation, a person can be charged with the crime of endan- gering the welfare of a child in the first degree Wile or she has previ- ously been Convicted of endangering the welfare of a child either in the first or second degree.   STATUTE OF LIMITATIONS: Because of their age and experience, the welfare of children is neces- sarily entrusted to adults. It is egregious when adults abuse this trust particularly in order to sexually abuse children. Very often, victims of child abuse do not want to report the abuse to others at the time it happens for the simple reason they fear that it is they, not the abuser, who have done something wrong. It may be many years after the abuse takes place that the abused child realizes that he or she has been a victim and unfortunately at that time, the statute of limitation may have tolled so that prosecutors cannot charge the abuser. To address this injustice, this bill removes the statute of limitations for sexual crimes committed against a child. As a result, an individual who commits sexual assault against a child will be subject to criminal pros- ecution throughout his or her life. In addition, this legislation adds predatory sexual offense and predatory sexual assault against a child are also added to the civil claims for which a criminal victim can recover.   STRENGTHENING PENALTIES FOR THOSE WHO SEXUALLY ABUSE CHILDREN AND ADDRESSING INCONSISTENCIES IN THE LAW: This bill adds to the crimes of aggravated sexual abuse in the third, second, and first degrees that if a person is less than 13 years old and the actor is age 18 or older, they can be found guilty of those crimes. The current law only applies if the victim was less than 11 years old. Increasing the age of the offender to 18 years or older, according to local prosecutors, would make this consistent with the offenses of Rape in the degree and Criminal Sexual Act in the first Degree. Another important amendment in this legislation pertains to Course of Sexual Conduct against a child. Under this legislation, Course of Sexual Conduct against a Child is amended to apply to predators who abuse multiple children. Current statute only applies when an offender has abused the same child over a period of three months or more. If that offender abuses two or more children, it does not apply. The bill also removes the phrase "over a time of not less than three months in dura- tion." One can assume the original intent of this statute was to provide enhanced penalties for those who abuse children over a period of time. Unfortunately, in narrowly defining the period of time to three months, there have been cases where prosecution were unable to charge an indi- vidual with a higher offense because the multiple acts of sexual abuse occurred less than three months. In talking with local prosecutors, removing the three month requirement and amending the law to include offenses against multiple children will help in the prosecution of seri- al abusers of multiple children. The legislation also adds the offense of Sexual Misconduct under the crimes listed under the Persistent Sexual Abuse statute. Conviction under this offense is a Class E Felony end applies to an individual who had been previously convicted of sexual abuse two or more times within the span of 10 years. For all purposes, sexual misconduct should be an offense included under the Persistent Sexual Abuse statute and would close a loophole in the statute. Unfortunately, this loophole has created situations where prosecutors could not seek the higher felony charge against a repeat offender because one of the previous convictions was sexual misconduct.   CLEARLY DEFINING DEPRAVED INDIFFERENCE: This bill amends Section 125.25 of the Penal Law to define depraved indifference to human life "to where the defendant, although not intend- ing to cause death, recklessly engages in a course of fatal conduct which creates a grave risk of death to another person and indicates indifference for the value of human life. Recklessness shall be assessed objectively by the circumstances or factual setting in which the crime occurred." Recently, the Court of Appeals has taken a more subjective interpreta- tion of depraved indifference. Specifically, they are considering the person's culpable mental state at the time of the crime rather than what the previous standard of what a reasonable person would do. This subjec- tive interpretation of the law has resulted in reversing many Murder II convictions - many of which involve children who were murdered after sustaining injuries from abuse. This occurred in my Assembly District when the Court of Appeals overturned the Murder in the Second Degree conviction of Alan Jones who murdered- his step-sister Erin Maxwell. The Courts claimed that because Alan Jones called 911 after strangling Erin Maxwell to death, he did not act with "depraved indifference" to her life.   PRIOR LEGISLATIVE HISTORY: A9109 of 2016-Held for consideration in Codes A4011 of 2017-18 Held for consideration in Codes A6354 of 2019-20 Held for consideration in Codes A5754 of 2021-22 Held for consideration in Codes   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None   EFFECTIVE DATE: This act shall take on the next November 1st succeeding date which it shall become law, provided that Section 6 applies to offenses committed on or after such date and to offenses committed prior, but shall not apply to offenses prior where the prosecution was barred under Criminal Procedure Law § 30.10, and Section 7 and Section 8 apply to offenses committed on or after such date and to offenses committed prior, but Section 7 shall not apply to offenses prior where the commencement of an action was barred under CPLR Article 2.
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