BILL NUMBER: S7851
SPONSOR: SCARCELLA-SPANTON
 
TITLE OF BILL:
An act to amend the penal law, the criminal procedure law, the estates,
powers and trusts law and the social services law, in relation to estab-
lishing the offense of aggravated murder of a child; to amend the penal
law, the criminal procedure law and the vehicle and traffic law, in
relation to establishing the offenses of aggravated abuse of a child in
the second degree, aggravated abuse of a child in the first degree, and
aggravated manslaughter of a child; to amend the penal law, and the
criminal procedure law, in relation to establishing the offense of
aggravated endangering the welfare of a child; to amend the social
services law, in relation to aggravated manslaughter of a child; to
amend the social services law, in relation to requiring the recording of
calls to the statewide central register of child abuse and maltreatment
made by persons required by law to report child abuse, requiring the
office of children and family services to investigate the prior history
of the subject of a report of child abuse or maltreatment and requiring
such office to inform a caller if a report cannot be taken; requiring
increased scrutiny and the presence of law enforcement during the inves-
tigation of a child abuse or maltreatment report with prior history of
such reports; to amend the family court act, in relation to the defi-
nition of the term "neglected child"; and to repeal subdivision 5 of
section 125.25 of the penal law relating to the murder of a person under
fourteen years of age while in the course of committing certain sex
offenses
 
PURPOSE OR GENERAL IDEA OF BILL:
To enact Erin's law and establish increased protection for vulnerable
children.
 
SUMMARY OF PROVISIONS:
Section 1. Sets the short title as "Erin's Law."
Section 2. Adds two new subdivisions to § 10.00 of the penal law to
define the terms "person in position of trust" and "child abuse
offense".
Sections 3-5. Amends § 60.06 and § 70.00 of the penal law to include the
crime of aggravated murder of a child in the list of offenses that shall
be sentenced to life without parole.
Section 6. Amends § 70.02 of the penal law to establish aggravated
manslaughter of a child as a Class B violent felony, aggravated abuse of
a child in the first degree as a Class C violent felony, and aggravated
abuse of a child in the second degree as a Class D violent felony.
Section 7. Amends § 110.05 of the penal law to establish aggravated
murder of a child as a Class A-I felony.
Section 8. Amends § 120.01 of the penal law to include injury as defined
in subdivision nine of § 10.00 of the penal law under the definition of
Reckless assault of a child by a day care provider.
Section 9. Amends § 120.02 of the penal law to reclassify "Reckless
assault of a child" as "Aggravated abuse of a child in the first
degree". Includes intent to cause serious physical injury to another
person but then injures a child and reckless action that injures a
child. Requires that such person has been previously convicted of a
child abuse offense, hurt another child during the same course of
conduct, used a deadly weapon or dangerous instrument, or recklessly
engaged in conduct on at least one other occasion that created a grave
risk of serious injury or death to a child and thereby cause serious
injury to such child.
Section 10. Adds a new § 120.02-a to the penal law to create the crime
of Aggravated abuse of a child in the second degree.
Section 11. Adds two new sections to the penal law, § 125.23 and §
125.28, to establish the crimes of Aggravated manslaughter of a child
and Aggravated murder of a child. Aggravated manslaughter of a child is
defined as a parent/guardian or person in a position of trust of a child
under the age of fourteen engaging in reckless conduct which creates a
grave risk of serious physical injury or death to such child and thereby
cause the death of such child. Aggravated murder of a child is defined
as when (1) a parent/guardian or person in a position of trust of a
child younger than fourteen causes the death of a child with the intent
to cause such death, (2) a parent/guardian or person in a position of
trust of a child younger than fourteen, under circumstances evincing a
depraved indifference to human life, engages in reckless conduct which
creates a grave risk of serious physical injury or death to such child
and thereby cause the death of such child, or (3) and individual eigh-
teen years of age or older intentionally causes the death of a child
younger than fourteen while in the course of committing rape in the
first, second, or third degree, aggravated sexual abuse in the first,
second, third, or fourth degree, predatory sexual assault against a
child, or incest against a child.
Section 12 and 13. Repeals subdivision 5 of § 125.25 of the penal law.
Section 14. Amends § 125.27 to include aggravated murder of a child.
Section 15. Establishes the crime of aggravated endangering the welfare
of a child. A person is guilty of aggravated endangering the welfare of
a child when a parent/guardian or person in a position of trust of a
child younger than fourteen knowingly acts in a manner likely to be
injurious to such child and has been convicted of a child abuse offense,
or such conduct consists of two or more acts of cruelty against such
child.
Section 16. Amends paragraph (a) of subdivision 3 of § 30.30 of the
criminal procedure law to include aggravated murder of a child.
Section 17. Amends subdivision 1 of § 180.85 of the criminal procedure
law to include aggravated murder of a child and aggravated manslaughter
of a child.
Section 18. Amends paragraph (h) of subdivision 190.25 of the criminal
procedure law to include reckless assault of a child by a day care
provider, aggravated abuse of a child in the first and second degrees,
aggravated endangering the welfare of a child, aggravated manslaughter
of a child, and aggravated murder of a child.
Section 19. Amends paragraph (b) of subdivision 8 of section 700.05 of
the criminal procedure law to include reckless assault of a child by a
day care provider, aggravated abuse of a child in the first and second
degrees, aggravated endangering the welfare of a child, aggravated
manslaughter of a child, and aggravated murder of a child.
Section 20. Amends paragraph (a) of subdivision 4 of section 509-cc of
the vehicle and traffic law to include any child abuse offense under
subdivision twenty-four of § 10.00 of the penal law.
Section 21. Amends § 4-1.6 of the estates, powers, and trusts law to
prevent the inheritance of property from a joint tenant when such indi-
vidual has been convicted of aggravated murder of a child and such child
was also a joint tenant.
Section 22. Amends subparagraph 2 of paragraph (b) of subdivision 3 of
§ 358-a of the social services law to allow for immediate removal of
children from the home when the parent has been convicted of aggravated
manslaughter of a child or aggravated murder of a child.
Section 23. Amends clause (A) of subparagraph (iii) of paragraph (a) of
subdivision 8 of § 384-b of the social services law to add aggravated
manslaughter of a child and aggravated abuse of a child. States that a
child is "severely abused" when a parent has been convicted of such.
Section 24. Amends paragraph (a) of subdivision 2 of § 422 of the social
services law to require mandatory reports to be recorded, and that
recordings of such calls be kept for the mandatory time require by stat-
ute, and that recordings for calls that do not constitute a report be
kept for two years. Such recordings shall be confidential and available
only to the statewide central register of child abuse and maltreatment.
A written transcript may be obtained only via judicial subpoena under
determination that such transcript is necessary evidence in a criminal
of family court proceeding.
Section 25. Amends subdivision 2 of § 422 of the social services law by
adding a new paragraph (e) that would require OCFS to convey to a caller
of the statewide central register that such caller has the ability to
speak with a supervisor about the reasons for the decision not to regis-
ter the report.
Section 26. Amends paragraph (a) of subdivision 6 of § 424 of the social
services law to increase scrutiny of any report received when two or
more reports have been indicated or are pending with the same child, a
sibling, or other children in such a household.
Section 27. Amends § 424 of the social services law to require a law
enforcement to accompany child protective investigators when there have
been two or more reports indicated or pending within six months.
Section 28. Amends § 420 of the social services law to establish that a
person who is convicted of failure to report a child abuse offense two
or more times within two years is guilty of a class E felony.
Section 29. Amends subdivision (f) of § 1012 of the family court act, to
update the definition of a neglected child. Removes the requirement that
such a child be in imminent danger of becoming impaired, but just in
danger of being impaired. Requires that parents/guardians provide chil-
dren with a sanitary living environment, warmth, sustenance, and any
necessity of life. Adds immunizations, remedial care, and psychological
and/or psychiatric care to the list of required medical care.
Section 30. Establishes the effective date.
 
JUSTIFICATION:
On August 29. 2008, an 11-year-old Oswego County girl, Erin Maxwell, was
found fatally injured in her home. She would later die at University
Hospital. The Onondaga County Medical Examiner stated that Erin died of
asphyxiation and suffered sexual trauma. Erin's stepbrother, Alan Jones,
was later charged with murder. Her father and stepmother were each
charged with six counts of endangering the welfare of a child.
Erin's life, like her death, was tragic. Erin lived in deplorable,
filthy, and inhuman conditions. Her father, Lindsey Maxwell, admitted to
authorities that the family kept "Erin locked in her bedroom." The
Maxwell home was full of about one hundred cats and caged poultry.
Officials at Erin's school frequently smelled cat urine on Erin's
clothes. Garbage was routinely piled on the porch of the Maxwell house.
Erin was fed little by her family and was frequently hungry at school.
Oswego County Department of Social Services made three visits to Maxwell
home. The final visit was in 2006. Case workers determined that no prob-
lems existed in the Maxwell home and that the amount of care given to
Erin was adequate.
The system failed Erin Maxwell. This failure led to her sad death.
Erin's Law will help to see that no child in this state is ever forced
to exist in conditions like Erin's. This legislation increases the
penalties for those who commit certain crimes against children, requires
better records of calls made alleging child abuse and neglect, enhances
the penalties for those who fail to report child abuse or maltreatment
on multiple occasions and updates the definition of "neglected child" to
better serve the interests of New York State's most vulnerable children.
In 2018, after serving only nine years for the murder of his stepsister,
Alan Jones was released from prison. This legislation cannot help Erin
Maxwell, but it can help the thousands of other New York children who
face similar situations.
 
PRIOR LEGISLATIVE HISTORY:
2011-2012: S.3582-A - Amend and Recommit to Codes
2009-2010: A.182 - Referred to codes / S.1510 - Referred to Codes
2008: S.8782 - Referred to Rules
 
FISCAL IMPLICATIONS:
To be determined.
 
EFFECTIVE DATE:
This act shall take effect immediately, if sections twenty-four and
twenty-five of this act shall take effect on the one hundred eightieth
day after it shall have become a law.

Statutes affected:
S7851: 10.00 penal law, 60.06 penal law, 70.00 penal law, 70.00(3) penal law, 70.00(5) penal law, 110.05 penal law, 110.05(1) penal law, 120.01 penal law, 125.25 penal law, 125.25(4) penal law, 125.25(5) penal law, 125.27 penal law, 125.27(1) penal law, 30.30 criminal procedure law, 30.30(3) criminal procedure law, 180.85 criminal procedure law, 180.85(1) criminal procedure law, 190.25 criminal procedure law, 190.25(3) criminal procedure law, 700.05 criminal procedure law, 700.05(8) criminal procedure law, 509-cc vehicle and traffic law, 509-cc(4) vehicle and traffic law, 4-1.6 estates powers and trusts law, 358-a social services law, 358-a(3) social services law, 384-b social services law, 384-b(8) social services law, 422 social services law, 422(2) social services law, 424 social services law, 424(6) social services law, 420 social services law