Endangering the Welfare of an Elderly or Incompetent Person in New York

Vulnerable individuals, including elderly and disabled people, may be more at risk of harm than others. New York law establishes several crimes to ensure that anyone that puts these individuals in danger may be prosecuted. Endangering the welfare of an elderly person, an incompetent person, or a disabled individual could lead to criminal charges in New York.

Crimes focus on causing or being likely to cause injury to these vulnerable individuals. The behavior need not actually cause injury, but there needs to be some awareness of risk or an intent to cause injury. The following situations may lead to charges of endangerment:

A man has a stroke and is unable to manage his daily activities, such as bathing and eating. His family hires an in-home nurse to assist. In order to make the man do as she needs him to, the nurse is rough with him.

She pulls his arms to the point of causing bruising. While she did not intend to assault him, she should have been aware of the risk that comes with handling him roughly. The nurse could face charges.

A woman with advanced Alzheimer’s is in a full-time care facility. Her care team is aware that certain modern items and recent photos cause mental duress. Finding her distress amusing, one person who works there purposefully changes the objects in her room to see the woman’s reactions.

The person does not intend to hurt her permanently but should know that there could be a mental injury. Criminal charges could be filed.

The Legal Definition of Endangering the Welfare of the Elderly

Under New York Penal Law, there are two crimes that address the endangerment of the elderly:

Endangering the welfare of an incompetent or physically disabled person in the second degree or first degree
Endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person in the second degree or first degree

The first endangerment crime addresses conduct that could cause injury, while the second endangerment crime involves actually causing an injury. The second endangerment crime also has a broader category of possible victims.

Each crime has two degrees, with a more serious degree being triggered by a certain level of intent or injury to the victim. The specific elements of each crime are discussed below.

The crime of Endangerment that Could Cause Injury

Endangering the welfare of an incompetent or physically disabled person requires the following elements to be satisfied:

Intent
Conduct that is likely to cause injury
A person unable to care for himself or herself

The element of intent can either be reckless or knowing. These types of intent should be considered on a scale. Recklessness is more deliberate than carelessness. A person is choosing to disregard the risk involved in certain behavior that poses a danger.

Knowing is even more intentional, with a greater awareness that the behavior will have harmful results. It does not rise to the level of intent to cause the injury itself. If the action is performed with recklessness, this amounts to endangerment in the second degree. If the action is performed knowingly, this amounts to endangerment in the first degree.

The injury that could be caused by the recklessly or knowingly dangerous conduct can be any type of injury. The statute includes any potential injury to the physical, mental, or moral welfare. The purported victim must be unable to care for himself or herself because of a physical disability, mental disease, or defect.

The crime of Endangerment that Does Cause Injury

Endangering the welfare of a vulnerable elderly person, or an incompetent or physically disabled person requires one of the following combinations of intent or consent and injury to be met:

Intent to cause injury combined with causing such an injury
Recklessness combined with causing an injury
Criminal negligence combined with an injury caused using a dangerous instrument or deadly weapon
Lack of consent combined with sexual conduct

If number 1 or 2 above are met, and a serious injury has been caused, it could amount to endangerment in the first degree. Otherwise, any of the four options above would amount to endangerment in the second degree.

The levels of intent discussed with respect to the first endangerment crime would apply here. Criminal negligence has a similar risk as recklessness. The difference is that the person taking action was not aware of the risks, but should have been. A lack of consent under this statute can be attributed to either an inability to consent or use of force.

Related Offenses

The endangerment of a vulnerable elderly person or a person that is incompetent or disabled is a crime that may be charged in conjunction with or in lieu of other criminal charges. The actual conduct that can be charged as endangerment may also be criminal on its own, regardless of the characteristics of the individual victim.

One of the ways that a person endanger a vulnerable elderly person or a person that is incapacitated is through a sexual act. Many of these people are legally considered unable to consent, or they may be forced to participate without their consent. There are also independent crimes that can be charged for the sexual act.

Criminal sexual assault could be charged against anyone who participates in a sex act with someone:

By force;
That cannot legally consent; or
Underage

Degrees of Criminal Sexual Assault that depend on variations of these categories.

The use of force is criminal sexual assault in the first degree. For the age, a victim under 11 years of age would be a first-degree offense while an adult with someone under 15 would be a second-degree offense.

An inability to consent due to physical helplessness is criminal assault in the first degree, while mental incapacitation or disability would amount to criminal sexual assault in the second degree. Any other incapacitation or legal inability to consent is a third-degree offense.

Relevant and Impactful Cases on Endangering the Welfare of the Elderly in New York

Endangerment cases in New York shed light on the types of cases that might be prosecuted, related criminal charges that may be brought, and what procedural and evidentiary questions may be involved. The following cases provide context to understand better how a person facing criminal charges may face or avoid a conviction.

In establishing that a person is vulnerable, incompetent, or incapacitated, there is a combination of statutory and case law that determines if someone meets the requisite characteristics to be considered a victim.

A vulnerable elderly person is statutorily defined as being over 60 and having a condition associated with that advanced age that results in dysfunction preventing self-care. In addition, mental or physical disabilities that prevent self-care would also meet the requirements.

People v. Dean considered the question of mental incompetence and looked at the IQ of the victim. The person was in the bottom one percent of human intelligence, which could satisfy the mental incompetence.

However, the alleged perpetrator was also in the bottom one percent, which made the two individuals peers. In this case, the evidence was insufficient to show an inability to consent. The mere fact of a low IQ alone may not be sufficient, and other factors should be considered to determine if consent was possible.

Actions that demonstrate endangerment depend on the specific situation. For example, People v. Lappe considered the case of the medical staff that was given orders by a physician to place someone on a ventilator. Rather than do so immediately, the defendant left the resident in respiratory distress.

Evidence was presented to show that there were both visual and auditory clues as to the suffering of the resident. This was sufficient to show that the individual knew or should have known of the injury or potential for injury, and satisfied the requirements to convict on an endangerment charge.

The intent is rarely proven by actual evidence. Instead, circumstances are presented from which a certain mental state may be inferred. People v. Gonzalez considered the evidence of intent in the case of a man who was accused of endangering the welfare of a vulnerable elderly person through sexual acts and attempted sexual acts.

The defendant worked at a facility for individuals with dementia and Alzheimer’s. Over a period of time, he was found in the presence of patients with his pants undone more than once.

In prosecuting this case, those prior incidents were allowed to be presented as evidence to show that his pants were down in this specific incident was not an accident. The inference could be made that his actions were intentional.

People v. Campbell considered questions of procedure and evidentiary burden in the prosecution of a case of endangering the welfare of an incompetent or disabled person. In that case, the court permitted a juror with prior geriatric experience because nothing indicated she could not be impartial.

In addition, photographs of injuries were permitted after the victim’s doctor affirmed that they accurately reflected the condition when he saw the victim.

Detection, Investigation, and Prosecution of Endangering the Welfare of the Elderly

New York cases of endangerment would likely be reported to the local police. After their investigation, charges would be referred to the appropriate prosecutor’s office to proceed with the case. However, depending on the origin of the case, other parties may be involved.

The setting of some elder abuse cases can be facilities paid for by Medicare. If so, an auditor or investigator for Medicare may become aware of a potential case of welfare endangerment. Those cases would then be referred to the appropriate local law enforcement. While the Medicare authorities would not be involved in the latter investigation and prosecution, they would cooperate by providing any information gathered when they detected the issue.

What is APS?

New York also offers resources to the elderly through the New York State Office for the Aging. In particular, if there is an issue of elder abuse, it would be referred to the Bureau of Adult Protective Services (APS). APS is a division of the Office of Children and Family Services. If there is a suspected case of endangering the welfare of the elderly, APS may get involved.

APS is responsible for making referrals of possible abuse or neglect, and then APS would assess and investigate. In addition, APS would develop plans to remedy the situation and help the elderly address any unmet needs. APS also participates in statewide work for related program development and policy initiatives to further support these efforts.

Statutory Penalties for Endangering the Welfare of the Elderly in New York

If you are convicted of endangering the welfare of the elderly or an incompetent or incapacitated person, you could face fines or imprisonment. The maximum fines and sentences depend on the crime and the degree of the offense. The statutory penalties are as follows:

Endangerment with the risk of injury in the second degree is a class A misdemeanor. This carries a prison sentence of up to one year and a fine of up to $1000.
Endangerment with the risk of injury in the first degree and endangerment with injury in the second degree are both class E felonies. This carries a prison sentence of up to four years and a fine of $5000.
Endangerment with injury is a class D felony, which carries a prison sentence of up to seven years and a fine of $5000.

In addition to these statutory penalties, a person may face additional penalties of related offenses. For example, if there were any financial exploitation, sex crimes, or other assault charges, there could be longer prison sentences and higher total fines.

Statutory Penalties for Endangering the Welfare of the Elderly in New York

Endangerment with the risk of injury in the second degree is a class A misdemeanor. This carries a prison sentence of up to one year and a fine of up to $1000.
Endangerment with the risk of injury in the first degree and endangerment with injury in the second degree are both class E felonies. This carries a prison sentence of up to four years and a fine of $5000.
Endangerment with injury is a class D felony, which carries a prison sentence of up to seven years and a fine of $5000.

What if my career does not involve this type of work?

Even if your career does not involve this type of work, you could face professional harm. If you are in a licensed profession, you may face a disciplinary proceeding. Other employers may also terminate you upon conviction or be unwilling to hold your job while you serve your sentence.

Legal Defenses to Endangering the Welfare of the Elderly in New York

While you hope never to be charged with a crime, you may be facing these charges in court. It is imperative to put up a strong defense against charges of endangering the elderly or any incompetent or incapacitated person.

Here are some options for defenses that your legal team could present.

As discussed in People v. Dean, there is some room for interpretation with respect to competence. To the extent that there are any possible questions about whether or not a person should be considered competent in a given situation, it would be important to present that information.

This would be particularly relevant in cases of consent. The characteristics of both people involved would need to be presented to show that there was no issue of an imbalanced power dynamic that undercut the ability to consent.

Along the same lines, the statutory definition of a vulnerable elderly person specifies a few characteristics that must be met for a person to be considered a vulnerable elderly person. If possible, evidence should be presented to show that a person of advanced age was not suffering from any applicable mental or physical defect.

If the alleged victim does not meet the definition, then there would be no crime. This would also require presenting evidence to show that the person was not incompetent, incapacitated, or disabled.

Proving the elements of the crime requires some proof of the intent or mental state in performing the actions that caused the charges. Part of a defense strategy could be to demonstrate that the requisite intent was not present.

For example, if an action is considered reckless, there could be evidence presented to show that the same behavior was performed regularly without any adverse consequences. If that is the case, it may be a persuasive argument to show that there was no cause to believe the injury was likely to occur.

For the endangerment crime with injury, there needs to be a demonstration that the behavior was both problematic and that injury was caused as a result, or that there was an intent to cause that injury. If the behavior itself was safe or the intended result was not related to the injury caused, this could undercut the elements.

If a person was not as cautious as they could have been, but the injury was just the result of an unfortunate accident, this may not be criminal endangerment. For example, if a person is cooking with hot oil, they know it entails certain risks. However, if the injury was caused by the person tripping and knocking the oil onto the elderly person, it could be argued that there was no recklessness.

The legal defenses to these types of charges require providing an alternative interpretation of what happened to show that there was no malicious intent. In addition, any other factual disputes related to competency or injury should be argued if applicable.

Let Us Help You

Your livelihood, reputation, and future are at stake if you are facing criminal charges. While you may feel isolated at the moment, you do not need to go through this alone. Experienced criminal defense lawyers are able to provide you with a strong defense.

The sooner you secure a legal team, the better your chances will be. An attorney would help you communicate with the investigators strategically. If there is a plea deal on the table, you can better understand the risks involved with taking or rejecting the deal. In addition, a lawyer can help negotiate a better deal on your behalf. Without experienced representation, you may take a poorer deal or an unnecessary risk.

The stress you and your loved ones will face cannot be taken away completely, but a legal team helps reduce what you have to manage. If the charges cannot be resolved outside of court, we are prepared to present the strongest case on your behalf. We have local criminal law offices ready to work with you. Contact us to get help immediately.