Bill Text: NY S03847 | 2013-2014 | General Assembly | Introduced

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Bill Title: Makes the inability to pay child support an affirmative defense to non-support of child offenses, rather than an element of such offenses.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Engrossed - Dead) 2014-05-29 - referred to codes [S03847 Detail]

Download: New_York-2013-S03847-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3847
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   February 22, 2013
                                      ___________
       Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
       AN ACT to amend the penal law, in relation to non-support of a child
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1. Section 260.05 of the penal law, as amended by chapter 397
    2  of the laws of 1997, the opening paragraph and subdivision 1 as  amended
    3  and subdivision 2 as added by chapter 70 of the laws of 2008, is amended
    4  to read as follows:
    5  S 260.05 Non-support of a child in the second degree.
    6    A person is guilty of non-support of a child when:
    7    1.  being  a parent, guardian or other person legally charged with the
    8  care or custody of a child less than sixteen years old, he or she  fails
    9  or refuses without lawful excuse to provide support for such child [when
   10  he  or  she  is  able to do so, or becomes unable to do so, when, though
   11  employable, he or she voluntarily  terminates  his  or  her  employment,
   12  voluntarily  reduces his or her earning capacity, or fails to diligently
   13  seek employment]; or
   14    2. being a parent, guardian or other person obligated  to  make  child
   15  support  payments  by  an  order  of child support entered by a court of
   16  competent jurisdiction for a child less than eighteen years old,  he  or
   17  she  knowingly fails or refuses without lawful excuse to provide support
   18  for such child [when he or she is able to do so, or becomes unable to do
   19  so, when, though employable, he or she voluntarily terminates his or her
   20  employment, voluntarily reduces his or her earning capacity, or fails to
   21  diligently seek employment].
   22    IN ANY PROSECUTION UNDER THIS SECTION, IT IS  AN  AFFIRMATIVE  DEFENSE
   23  THAT THE DEFENDANT IS UNABLE TO PROVIDE SUPPORT FOR THE CHILD.  PROVIDED
   24  THAT  NOTHING  IN  THIS PARAGRAPH SHALL CONSTITUTE A DEFENSE TO A PROSE-
   25  CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION
   26  WHERE THE DEFENDANT BECOMES  UNABLE  TO  PROVIDE  SUPPORT  WHEN,  THOUGH
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05449-01-3
       S. 3847                             2
    1  EMPLOYABLE,  HE  OR  SHE  VOLUNTARILY  TERMINATES HIS OR HER EMPLOYMENT,
    2  VOLUNTARILY REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO  DILIGENTLY
    3  SEEK EMPLOYMENT.
    4    Non-support of a child in the second degree is a class A misdemeanor.
    5    S  2. Section 260.06 of the penal law, as amended by chapter 70 of the
    6  laws of 2008, is amended to read as follows:
    7  S 260.06 Non-support of a child in the first degree.
    8    A person is guilty of non-support of a child in the first degree when:
    9    1. (a) being a parent, guardian or other person legally  charged  with
   10  the  care  or  custody of a child less than sixteen years old, he or she
   11  fails or refuses without lawful excuse to provide support for such child
   12  [when he or she is able to do so]; or
   13    (b) being a parent, guardian or other person obligated to  make  child
   14  support  payments  by  an  order  of child support entered by a court of
   15  competent jurisdiction for a child less than eighteen years old,  he  or
   16  she  fails  or refuses without lawful excuse to provide support for such
   17  child [when he or she is able to do so]; and
   18    2. he or she has previously been convicted in the preceding five years
   19  of a [crime defined in] VIOLATION OF section 260.05 of this  article  or
   20  [a crime defined by the provisions] of this section.
   21    IN  ANY  PROSECUTION  UNDER THIS SECTION, IT IS AN AFFIRMATIVE DEFENSE
   22  THAT THE DEFENDANT IS UNABLE TO PROVIDE SUPPORT FOR THE CHILD.  PROVIDED
   23  THAT NOTHING IN THIS PARAGRAPH SHALL CONSTITUTE A DEFENSE  TO  A  PROSE-
   24  CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION
   25  WHERE  THE  DEFENDANT  BECOMES  UNABLE  TO  PROVIDE SUPPORT WHEN, THOUGH
   26  EMPLOYABLE, HE OR SHE VOLUNTARILY  TERMINATES  HIS  OR  HER  EMPLOYMENT,
   27  VOLUNTARILY  REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO DILIGENTLY
   28  SEEK EMPLOYMENT.
   29    Non-support of a child in the first degree is a class E felony.
   30    S 3. This act shall take effect on the first of November next succeed-
   31  ing the date on which it shall have become a law.