NEW YORK STATE LAWS: OFFENSES INVOLVING CHILDREN

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CHILDREN AND INCOMPETENTS - Suffolk County
Section 260.00 Abandonment of a child - Suffolk County

 A person is guilty of abandonment of a child when, being a parent, guardian or other person legally charged with the care or custody of a child less than fourteen years old, he deserts such child in any place with intent to wholly abandon it.

 Abandonment of a child is a class E felony.
 

Section 260.03 Abandonment of a child; defense. - Suffolk County
In any prosecution for abandonment of a child, pursuant to section 260.00 of this article, based upon an alleged desertion of a child not more than five days old with an intent to wholly abandon such child, it is an affirmative defense that, with the intent that the child be safe from physical injury and cared for in an appropriate manner, the defendant left the child with an appropriate person or in a suitable location and promptly notified an appropriate person of the child's location.


Section 260.05 Non-support of a child in the second degree - Suffolk County
 A person is guilty of non-support of a child when, being a parent, guardian or other person legally charged with the care or custody of a child less than sixteen years old, he fails or refuses without lawful excuse to provide support for such child when he is able to do so, or becomes unable to do so, when, though employable, he voluntarily terminates his employment, voluntarily reduces his earning capacity or fails to diligently seek employment.


 Non-support of a child in the second degree is a class A misdemeanor.
 

Section 260.06 Non-support of a child in the first degree - Suffolk County

 A person is guilty of non-support of a child in the first degree when:

 1. being a parent, guardian or other person legally charged with the care or custody of a child less than sixteen years old, he or she fails or refuses without lawful excuse to provide support for such child when he or she is able to do so;  and

 2. he or she has previously been convicted in the preceding five years of the crime defined in section 260.0 of this article.

 Non-support of a child in the first degree is a class E felony.
 

Section 260.10 Endangering the welfare of a child - Suffolk County

 A person is guilty of endangering the welfare of a child when:

 1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health;  or

 2. Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an "abused child," a "neglected child," a "juvenile delinquent" or a "person in need of supervision," as those terms are defined in articles ten, three and seven of the family court act.

 Endangering the welfare of a child is a class A misdemeanor.
 

Section 260.11 Endangering the welfare of a child;  corroboration - Suffolk County

 A person shall not be convicted of endangering the welfare of a child, or of an attempt to commit the same, upon the testimony of a victim who is incapable of consent because of mental defect or mental incapacity as to conduct that constitutes an offense or an attempt to commit an offense referred to in section 130.16, without additional evidence sufficient pursuant to section 130.16 to sustain a conviction of an offense referred to in section 130.16, or of an attempt to commit the same.
 

Section 260.15 Endangering the welfare of a child;  defense. - Suffolk County

 In any prosecution for endangering the welfare of a child, pursuant to section 260.10:

1. based upon an alleged failure or refusal to provide proper medical care or treatment to an ill child, it is an affirmative defense that the defendant (a) is a parent, guardian or other person legally charged with the care or custody of such child;  and (b) is a member or adherent of an organized church or religious group the tenets of which prescribe prayer as the principal treatment for illness;  and (c) treated or caused such ill child to be treated in accordance with such tenets; or

2. based upon an alleged desertion of a child not more than five days old, it is an affirmative defense that, with the intent that the child be safe from physical injury and cared for in an appropriate manner, the defendant left the child with an appropriate person or in a suitable location and promptly notified an appropriate person of the child's location..
 

Section 260.20 Unlawfully dealing with a child in the first degree

 A person is guilty of unlawfully dealing with a child in the first degree when:

 1. He knowingly permits a child less than eighteen years old to enter or remain in or upon a place, premises or establishment where sexual activity as defined by article one hundred thirty, two hundred thirty or two hundred sixty- three of this chapter or activity involving controlled substances as defined by article two hundred twenty of this chapter or involving marihuana as defined by article two hundred twenty-one of this chapter is maintained or conducted, and he knows or has reason to know that such activity is being maintained or conducted;  or

 2. He gives or sells or causes to be given or sold any alcoholic beverage, as defined by section three of the alcoholic beverage control law, to a person less than twenty-one years old;  except that this subdivision does not apply to the parent or guardian of such a person or to a person who gives or causes to be given any such alcoholic beverage to a person under the age of twenty-one years, who is a student in a curriculum licensed or registered by the state education department, where the tasting or imbibing of alcoholic beverages is required in courses that are part of the required curriculum, provided such alcoholic beverages are given only for instructional purposes during classes conducted pursuant to such curriculum.

 It is no defense to a prosecution pursuant to subdivision two of this section that the child acted as the agent or representative of another person or that the defendant dealt with the child as such.

 Unlawfully dealing with a child in the first degree is a class A misdemeanor.
 

Section 260.21 Unlawfully dealing with a child in the second degree - Suffolk County

 A person is guilty of unlawfully dealing with a child in the second degree when:

 1. Being an owner, lessee, manager or employee of a place where alcoholic beverages are sold or given away, he permits a child less than sixteen years old to enter or remain in such place unless:

  (a) The child is accompanied by his parent, guardian or an adult authorized by a parent or guardian;  or

  (b) The entertainment or activity is being conducted for the benefit or under the auspices of a non-profit school, church or other educational or religious institution;  or

  (c) Otherwise permitted by law to do so;  or

  (d) The establishment is closed to the public for a specified period of time to conduct an activity or entertainment, during which the child is in or remains in such establishment, and no alcoholic beverages are sold, served, given away or consumed at such establishment during such period.  The state liquor authority shall be notified in writing by the licensee of such establishment, of the intended closing of such establishment, to conduct any such activity or entertainment, not less than ten days prior to any such closing;  or

 2. He marks the body of a child less than eighteen years old with indelible ink or pigments by means of tattooing;  or

 3. He sells or causes to be sold tobacco in any form to a child less than eighteen years old.

 It is no defense to a prosecution pursuant to subdivision three of this section that the child acted as the agent or representative of another person or that the defendant dealt with the child as such.

 Unlawfully dealing with a child in the second degree is a class B misdemeanor.
 

Section 260.25 Endangering the welfare of an incompetent person - Suffolk County

 A person is guilty of endangering the welfare of an incompetent person when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself because of mental disease or defect.

 Endangering the welfare of an incompetent person is a class A misdemeanor.


Section 260.30  Misrepresentation by a child day care provider - Suffolk County

 A person is guilty of misrepresentation by a child day care provider when, being a child day acre provider or holding himself or herself out as such, he or she makes any willful and intentional misrepresentation, by act or omission, to a parent or guardian of a child in the care of such provider (or a child whose prospective placement in such care is being considered by such parent or guardian) to any state or local official having jurisdiction over child day care providers, or to any police officer or peace officer as to the facts pertaining to such child day care provider, including,  but not limited to: (i) the number of children in the facility or home where such number is in violation of the provisions in section three hundred ninety of the social services law, (ii) the area of the facility, home, or center used for child day care, or (iii) the credentials or qualifications of any child day care provider, assistant, employee, or volunteer.  A misrepresentation subject to the provisions of this section must substantially place at risk the health and safety of a child in the care of a child day care provider.

 Misrepresentation by a child day care provider is a class A misdemeanor.


Section 260.32 Endangering the welfare of a vulnerable elderly person in the second degree. - Suffolk County

A person is guilty of endangering the welfare of a vulnerable elderly person in the second degree when, being a caregiver for a vulnerable elderly person:

1. With intent to cause physical injury to such person, he or she causes such injury to such person; or

2. He or she recklessly causes physical injury to such person; or

3. With criminal negligence, he or she causes physical injury to such person by means of a deadly weapon or a dangerous instrument; or

4. He or she subjects such person to sexual contact without the latter's consent. Lack of consent under this subdivision results form forcible compulsion or incapacity to consent, as those terms are defined in article one hundred thirty of this chapter, or any other circumstances in which the vulnerable elderly person does not expressly or impliedly acquiesce in the caregiver's conduct. In any prosecution under this subdivision in which the victim's alleged lack of consent results solely from incapacity to consent because of the victim's mental disability or mental incapacity, the provisions of section 130.16 of this chapter shall apply. In addition, in any prosecution under this subdivision in which the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.


Endangering the welfare of a vulnerable elderly person in the second degree is a class E felony.

 


ARTICLE 263--SEXUAL PERFORMANCE BY A CHILD - Suffolk County

Section 263.00 Definitions.

 As used in this article the following definitions shall apply:

 1. "Sexual performance" means any performance or part thereof which, for purposes of section 263.16 of this article, includes sexual conduct by a child less than sixteen years of age or, for purposes of section 263.05 or 263.15 of this article, includes sexual conduct by a child less than seventeen years of age.

 2. "Obscene sexual performance" means any performance which, for purposes of section 263.11 of this article, includes sexual conduct by a child less than sixteen years of age or, for purposes of section 263.10 of this article, includes sexual conduct by a child less than seventeen years of age, in any material which is obscene, as such term is defined in section 235.00 of this chapter.

 3. "Sexual conduct" means actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.

 4. "Performance" means any play, motion picture, photograph or dance.  Performance also means any other visual representation exhibited before an audience.

 5. "Promote" means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.

 6. "Simulated" means the explicit depiction of any of the conduct set forth in subdivision three of this section which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals or buttocks.

 7. "Deviate sexual intercourse" means the conduct defined by subdivision two of section 130.00 of this chapter.

 8. "Sado-masochistic abuse" means the conduct defined in subdivision five of section 235.20 of this chapter.
 

Section 263.05 Use of a child in a sexual performance. - Suffolk County

 A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than seventeen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, he consents to the participation by such child in a sexual performance.

 Use of a child in a sexual performance is a class C felony.
 

Section 263.10 Promoting an obscene sexual performance by a child. - Suffolk County

 A person is guilty of promoting an obscene sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any obscene performance which includes sexual conduct by a child less than seventeen years of age.

 Promoting an obscene sexual performance by a child is a class D felony.
 

Section 263.11 Possessing an obscene sexual performance by a child. - Suffolk County

 A person is guilty of possessing an obscene sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any obscene performance which includes sexual conduct by a child less than sixteen years of age.
 

Possessing an obscene sexual performance by a child is a class E felony.
 

Section 263.15 Promoting a sexual performance by a child. - Suffolk County

 A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age.

 Promoting a sexual performance by a child is a class D felony.
 

Section 263.16 Possessing a sexual performance by a child. - Suffolk County

 A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.

 Possessing a sexual performance by a child is a class E felony.
 

Section 263.20 Sexual performance by a child;  affirmative defenses. - Suffolk County

 1. Under this article, it shall be an affirmative defense that the defendant in good faith reasonably believed the person appearing in the performance was, for purposes of section 263.11 or 263.16 of this article, sixteen years of age or over or, for purposes of section 263.05, 263.10 or 263.15 of this article, seventeen years of age or over.

 2. In any prosecution for any offense pursuant to this article, it is an affirmative defense that the person so charged was a librarian engaged in the normal course of his employment, a motion picture projectionist, stage employee or spotlight operator, cashier, doorman, usher, candy stand attendant, porter or in any other non-managerial or non-supervisory capacity in a motion picture theatre;  provided he has no financial interest, other than his employment, which employment does not encompass compensation based upon any proportion of the gross receipts, in the promotion of a sexual performance for sale, rental or exhibition or in the promotion, presentation or direction of any sexual performance, or is in any way responsible for acquiring such material for sale, rental or exhibition.
 

Section 263.25 Proof of age of child. - Suffolk County

 Whenever it becomes necessary for the purposes of this article to determine whether a child who participated in a sexual performance was under an age specified in this article, the court or jury may make such determination by any of the following:  personal inspection of the child;  inspection of a photograph or motion picture which constituted the sexual performance;  oral testimony by a witness to the sexual performance as to the age of the child based upon the child's appearance;  expert medical testimony based upon the appearance of the child in the sexual performance;  and any other method authorized by any applicable provision of law or by the rules of evidence at common law.

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