NY Penal Law § 260.32: Endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the second degree

In New York there are special laws designed to protect those who are vulnerable. People who are vulnerable encompass children as well as the elderly, those who are mentally incompetent and those who are physically disabled. Under New York Penal Law § 260.32 you could be prosecuted for endangering the welfare of a vulnerable elderly person in the second degree if you are a caregiver, and

1. You intended to cause that person physical injury,
2. You recklessly cause that person physical injury,
3. With criminal negligence you cause that person physical injury using a deadly weapon or a dangerous instrument, or
4. You subject that person to sexual contact.

Jeremy's 75-year old mom, Rose, recently suffered a stroke that left her partially paralyzed and nonambulatory. Rose also was showing the signs of dementia and had a heart condition. Jeremy took on the role of caring for Rose. Jeremy's sister, Lola, lived out of town and was only able to visit every couple of months. However, over time Lola noticed that Rose was deteriorating physically. Rose was losing weight and seemed to be "out of it" frequently. Lola finally took Lola to the hospital. The doctors concluded that Rose had not been receiving her medications properly and that she was not receiving proper nutrition. Jeremy could be charged with endangering the welfare of a vulnerable elderly person in the second degree since he was not making sure she received her medication properly, or enough food.

1. Endangering the welfare of a child: New York Penal Law § 260.10
2. Endangering the welfare of an incompetent or physically disabled person in the second degree: New York Penal Law § 260.24
3. Endangering the welfare of a vulnerable elderly person, or an competent or physically disabled person in the first degree: New York Penal Law § 260.34

Under this statute, you can be convicted only if the prosecutor proves that your actions were intentional or reckless. Under New York Penal Law § 15.05(3) you would have acted recklessly if you understand that by acting in a certain manner a particular harm would result, and you decided to behave in that manner anyway. If the elderly person was physically injured but that was not your intention and you did not act recklessly, then you did not violate the statute.

Endangering the welfare of an incompetent or physically disabled person in the second degree is a class E felony. If you are convicted your sentence may include up to 4 years in prison, a probation term of 5 years, and a substantial fine.

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 from 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 § 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.

If you are arrested and charged with endangering the welfare of an incompetent or physically disabled person in the second degree it is important that you have experienced representation. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with felonies and misdemeanors. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of crimes in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.