Bill Text: NY S07004 | 2009-2010 | General Assembly | Introduced
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 16-0)
Status: (Introduced - Dead) 2010-03-05 - REFERRED TO CODES [S07004 Detail]
Download: New_York-2009-S07004-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 7004 I N S E N A T E March 5, 2010 ___________ Introduced by Sens. LANZA, PADAVAN, GOLDEN -- 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 27 EMPLOYABLE, HE OR SHE VOLUNTARILY TERMINATES HIS OR HER EMPLOYMENT, 28 VOLUNTARILY REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO DILIGENTLY 29 SEEK EMPLOYMENT. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD16281-01-0 S. 7004 2 1 Non-support of a child in the second degree is a class A misdemeanor. 2 S 2. Section 260.06 of the penal law, as amended by chapter 70 of the 3 laws of 2008, is amended to read as follows: 4 S 260.06 Non-support of a child in the first degree. 5 A person is guilty of non-support of a child in the first degree when: 6 1. (a) being a parent, guardian or other person legally charged with 7 the care or custody of a child less than sixteen years old, he or she 8 fails or refuses without lawful excuse to provide support for such child 9 [when he or she is able to do so]; or 10 (b) being a parent, guardian or other person obligated to make child 11 support payments by an order of child support entered by a court of 12 competent jurisdiction for a child less than eighteen years old, he or 13 she fails or refuses without lawful excuse to provide support for such 14 child [when he or she is able to do so]; and 15 2. he or she has previously been convicted in the preceding five years 16 of a [crime defined in] VIOLATION OF section 260.05 of this article or 17 [a crime defined by the provisions] of this section. 18 IN ANY PROSECUTION UNDER THIS SECTION, IT IS AN AFFIRMATIVE DEFENSE 19 THAT THE DEFENDANT IS UNABLE TO PROVIDE SUPPORT FOR THE CHILD. PROVIDED 20 THAT NOTHING IN THIS PARAGRAPH SHALL CONSTITUTE A DEFENSE TO A PROSE- 21 CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION 22 WHERE THE DEFENDANT BECOMES UNABLE TO PROVIDE SUPPORT WHEN, THOUGH 23 EMPLOYABLE, HE OR SHE VOLUNTARILY TERMINATES HIS OR HER EMPLOYMENT, 24 VOLUNTARILY REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO DILIGENTLY 25 SEEK EMPLOYMENT. 26 Non-support of a child in the first degree is a class E felony. 27 S 3. This act shall take effect on the first of November next succeed- 28 ing the date on which it shall have become a law.