Bill Text: NY A05295 | 2011-2012 | 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: Bipartisan Bill

Status: (Introduced - Dead) 2012-09-04 - enacting clause stricken [A05295 Detail]

Download: New_York-2011-A05295-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5295
                              2011-2012 Regular Sessions
                                 I N  A S S E M B L Y
                                   February 15, 2011
                                      ___________
       Introduced  by M. of A. P. RIVERA, MARKEY, SPANO, CASTRO, ARROYO, HOOPER
         -- Multi-Sponsored by -- M. of A. BURLING, CROUCH,  GABRYSZAK,  GALEF,
         GIGLIO,  MAYERSOHN,  MURRAY, TITONE, TOBACCO -- read once and referred
         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-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04788-01-1
       A. 5295                             2
    1  CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION
    2  WHERE THE DEFENDANT BECOMES  UNABLE  TO  PROVIDE  SUPPORT  WHEN,  THOUGH
    3  EMPLOYABLE,  HE  OR  SHE  VOLUNTARILY  TERMINATES HIS OR HER EMPLOYMENT,
    4  VOLUNTARILY  REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO DILIGENTLY
    5  SEEK EMPLOYMENT.
    6    Non-support of a child in the second degree is a class A misdemeanor.
    7    S 2. Section 260.06 of the penal law, as amended by chapter 70 of  the
    8  laws of 2008, is amended to read as follows:
    9  S 260.06 Non-support of a child in the first degree.
   10    A person is guilty of non-support of a child in the first degree when:
   11    1.  (a)  being a parent, guardian or other person legally charged with
   12  the care or custody of a child less than sixteen years old,  he  or  she
   13  fails or refuses without lawful excuse to provide support for such child
   14  [when he or she is able to do so]; or
   15    (b)  being  a parent, guardian or other person obligated to make child
   16  support payments by an order of child support  entered  by  a  court  of
   17  competent  jurisdiction  for a child less than eighteen years old, he or
   18  she fails or refuses without lawful excuse to provide support  for  such
   19  child [when he or she is able to do so]; and
   20    2. he or she has previously been convicted in the preceding five years
   21  of  a  [crime defined in] VIOLATION OF section 260.05 of this article or
   22  [a crime defined by the provisions] of this section.
   23    IN ANY PROSECUTION UNDER THIS SECTION, IT IS  AN  AFFIRMATIVE  DEFENSE
   24  THAT THE DEFENDANT IS UNABLE TO PROVIDE SUPPORT FOR THE CHILD.  PROVIDED
   25  THAT  NOTHING  IN  THIS PARAGRAPH SHALL CONSTITUTE A DEFENSE TO A PROSE-
   26  CUTION FOR OR PRECLUDE CONVICTION OF THE OFFENSE DEFINED IN THIS SECTION
   27  WHERE THE DEFENDANT BECOMES  UNABLE  TO  PROVIDE  SUPPORT  WHEN,  THOUGH
   28  EMPLOYABLE,  HE  OR  SHE  VOLUNTARILY  TERMINATES HIS OR HER EMPLOYMENT,
   29  VOLUNTARILY REDUCES HIS OR HER EARNING CAPACITY, OR FAILS TO  DILIGENTLY
   30  SEEK EMPLOYMENT.
   31    Non-support of a child in the first degree is a class E felony.
   32    S 3. This act shall take effect on the first of November next succeed-
   33  ing the date on which it shall have become a law.