senate Bill S6959A

Amended

Creates a crime of leading a retail theft enterprise

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 16 / Apr / 2012
    • REFERRED TO CONSUMER PROTECTION
  • 19 / Apr / 2012
    • AMEND AND RECOMMIT TO CONSUMER PROTECTION
  • 19 / Apr / 2012
    • PRINT NUMBER 6959A
  • 30 / May / 2012
    • 1ST REPORT CAL.929
  • 31 / May / 2012
    • 2ND REPORT CAL.
  • 04 / Jun / 2012
    • ADVANCED TO THIRD READING
  • 11 / Jun / 2012
    • AMENDED ON THIRD READING (T) 6959B
  • 18 / Jun / 2012
    • PASSED SENATE
  • 18 / Jun / 2012
    • DELIVERED TO ASSEMBLY
  • 18 / Jun / 2012
    • REFERRED TO CODES

Summary

Creates a crime of leading a retail theft enterprise.

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Bill Details

See Assembly Version of this Bill:
A10326
Versions:
S6959
S6959A
S6959B
Legislative Cycle:
2011-2012
Current Committee:
Assembly Codes
Law Section:
General Business Law
Laws Affected:
Add §393-e, Gen Bus L; add §155.50, amd §155.40, Pen L

Votes

9
0
9
Aye
0
Nay
1
aye with reservations
0
absent
0
excused
0
abstained
show Consumer Protection committee vote details

Sponsor Memo

BILL NUMBER:S6959A

TITLE OF BILL:
An act
to amend the general business law and the
penal law, in relation to creating a crime of
leading a
retail theft
enterprise

PURPOSE OR GENERAL IDEA OF BILL:
This bill relates to prohibitions and penalties against persons who
lead an organized retail theft enterprise by organizing, supervising,
financing or managing such criminal activity.

SUMMARY OF PROVISIONS:
Section One amends the general business law by adding a new section
393-e which defines the circumstances that would give rise to the
crime of leading an organized retail theft enterprise.

Section Two amends the penal law by adding a new section 150.50 which
provides for the crime of leading a retail theft enterprise. The
terms "anti-shoplifting or inventory control device countermeasures",
"conceal", "full retail value", "merchandise", "merchant", "organized
retail theft", "organized retail theft enterprise", "person",
"premises of a store or retail mercantile establishment",
"shoplifting", "store or other retail mercantile establishment", and
"under-ring" are defined for purposes of this section.

Section Three provides that the crime of leading an organized retail
theft enterprise constitutes grand larceny in the second degree and
is a class C felony.

Section Four is the effective date.

JUSTIFICATION:
This bill is part of a package of legislation that seeks to cut down
on patterns of criminal activity that rise to the level of "organized
retail theft". According to the Federal Bureau of Investigation,
organized retail theft costs United States retailers about $30
billion per year. Organized retail crime comprises a wide spectrum of
high volume and highly organized theft rings that cost New York
retailers specifically hundreds of millions of dollars annually and,
more importantly, compromise the health, safety, and welfare of
unsuspecting New York consumers. For every item stolen, New York
State and local governments lose out on sales tax revenue- again,
adding up to millions annually. Organized retail theft is the most
serious security issue facing many retail merchants, including
apparel and accessory retailers, mass merchandisers, do-it-yourself
stores, drug stores, and supermarkets. It's a crime that has grown
substantially over the past

decade, and has continued to grow at unprecedented level. Retailers
are forced to offset these significant costs through higher
prices meaning that honest and consumers are forced to endure the
impact of organized retail theft and professional shoplifters.

Those individuals who lead retail theft crime rings should be punished
to the fullest extent possible. By amending the penal law to allow
those convicted of leading an organized retail theft enterprise to be
charged with higher level felonies, the chain of persons involved in
these types of schemes can be deterred and cut off from the top.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding
the date on which it shall have become a law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6959--A

                            I N  S E N A T E

                             April 16, 2012
                               ___________

Introduced  by  Sen.  ZELDIN -- read twice and ordered printed, and when
  printed to be committed to the Committee  on  Consumer  Protection  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT to amend the general business law and the penal law, in  relation
  to creating a crime of leading a retail theft enterprise

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The general business law is amended by adding a new section
393-e to read as follows:
  S 393-E. LEADING AN ORGANIZED RETAIL THEFT ENTERPRISE.  1. A PERSON IS
GUILTY OF LEADING AN ORGANIZED RETAIL THEFT  ENTERPRISE  IF  HE  OR  SHE
CONSPIRES WITH OTHERS AS AN ORGANIZER, SUPERVISOR, FINANCIER OR MANAGER,
TO  ENGAGE FOR PROFIT IN ORGANIZED RETAIL CRIME OR IN A SCHEME OR COURSE
OF CONDUCT TO EFFECTUATE THE TRANSFER OR SALE OF SHOPLIFTED MERCHANDISE.
LEADING AN ORGANIZED RETAIL THEFT ENTERPRISE CONSTITUTES LARCENY IN  THE
SECOND  DEGREE.  NOTWITHSTANDING  THE PROVISIONS OF SECTION 80.00 OF THE
PENAL LAW, THE COURT MAY IMPOSE A FINE NOT TO EXCEED TWO  HUNDRED  FIFTY
THOUSAND  DOLLARS  OR  FIVE  TIMES  THE  RETAIL VALUE OF THE MERCHANDISE
SEIZED AT THE TIME OF THE ARREST, WHICHEVER IS GREATER.
  2. NOTWITHSTANDING THE PROVISIONS OF SECTION 70.35 OF THE PENAL LAW, A
CONVICTION OF LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE  SHALL  NOT
MERGE  WITH  THE  CONVICTION  FOR ANY OFFENSE WHICH IS THE OBJECT OF THE
CONSPIRACY. NOTHING CONTAINED IN THIS SECTION SHALL PROHIBIT  THE  COURT
FROM  IMPOSING AN EXTENDED TERM PURSUANT TO ARTICLE SEVENTY OF THE PENAL
LAW; NOR SHALL THIS SECTION BE CONSTRUED IN ANY WAY TO PRECLUDE OR LIMIT
THE PROSECUTION OR CONVICTION OF ANY PERSON FOR CONSPIRACY UNDER ARTICLE
ONE HUNDRED FIVE OF THE PENAL LAW, OR ANY PROSECUTION OR CONVICTION  FOR
ANY OTHER OFFENSE.
  3. IT SHALL NOT BE NECESSARY IN ANY PROSECUTION UNDER THIS SECTION FOR
THE  STATE  TO PROVE THAT ANY INTENDED PROFIT WAS ACTUALLY REALIZED. THE
TRIER OF FACT MAY INFER THAT A PARTICULAR SCHEME OR  COURSE  OF  CONDUCT
WAS  UNDERTAKEN  FOR  PROFIT  FROM  ALL  OF THE ATTENDING CIRCUMSTANCES,
INCLUDING BUT NOT LIMITED TO THE  NUMBER  OF  PERSONS  INVOLVED  IN  THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15086-04-2

S. 6959--A                          2

SCHEME  OR  COURSE  OF  CONDUCT,  THE  ACTOR'S  NET WORTH AND HIS OR HER
EXPENDITURES IN RELATION TO HIS OR HER LEGITIMATE SOURCES OF INCOME, THE
AMOUNT OF MERCHANDISE INVOLVED,  OR  THE  AMOUNT  OF  CASH  OR  CURRENCY
INVOLVED.
  4.  IT SHALL NOT BE A DEFENSE TO A PROSECUTION UNDER THIS SECTION THAT
ANY SHOPLIFTED MERCHANDISE WAS BROUGHT INTO OR TRANSPORTED IN THIS STATE
SOLELY FOR ULTIMATE DISTRIBUTION IN ANOTHER JURISDICTION; NOR  SHALL  IT
BE  A  DEFENSE THAT ANY PROFIT WAS INTENDED TO BE MADE IN ANOTHER JURIS-
DICTION.
  5. LEADING AN ORGANIZED RETAIL THEFT ENTERPRISE IS A CLASS C FELONY.
  S 2. The penal law is amended by adding a new section 155.50  to  read
as follows:
S 155.50 LEADING AN ORGANIZED RETAIL THEFT ENTERPRISE.
  1.  DEFINITIONS. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "ANTI-SHOPLIFTING  OR  INVENTORY  CONTROL  DEVICE  COUNTERMEASURE"
SHALL MEAN ANY ITEM OR DEVICE WHICH IS DESIGNED, MANUFACTURED, MODIFIED,
OR ALTERED TO DEFEAT ANY ANTI-SHOPLIFTING OR INVENTORY CONTROL DEVICE;
  (B)  "CONCEAL"  SHALL  MEAN  TO  HIDE,  COVER,  OR  OTHERWISE DISGUISE
MERCHANDISE SO THAT, ALTHOUGH THERE MAY BE SOME NOTICE OF ITS  PRESENCE,
IT IS NOT VISIBLE THROUGH ORDINARY OBSERVATION;
  (C) "FULL RETAIL VALUE" SHALL MEAN THE MERCHANT'S STATED OR ADVERTISED
PRICE OF THE MERCHANDISE;
  (D)  "MERCHANDISE" SHALL MEAN ANY GOODS, CHATTELS, FOODSTUFFS OR WARES
OF ANY TYPE AND DESCRIPTION, REGARDLESS OF THE VALUE THEREOF;
  (E) "MERCHANT" SHALL MEAN ANY OWNER OR OPERATOR OF ANY STORE OR  OTHER
RETAIL   MERCANTILE  ESTABLISHMENT,  OR  ANY  AGENT,  EMPLOYEE,  LESSEE,
CONSIGNEE, OFFICER, DIRECTOR, FRANCHISEE, OR INDEPENDENT  CONTRACTOR  OF
SUCH OWNER OR PROPRIETOR;
  (F)  "ORGANIZED  RETAIL  THEFT" SHALL MEAN (1) THE STEALING, EMBEZZLE-
MENT, OR OBTAINING BY FRAUD, FALSE PRETENSES, OR OTHER ILLEGAL MEANS, OF
RETAIL MERCHANDISE IN QUANTITIES THAT WOULD NOT  NORMALLY  BE  PURCHASED
FOR  PERSONAL  USE OR CONSUMPTION FOR THE PURPOSE OF RESELLING OR OTHER-
WISE REENTERING SUCH RETAIL MERCHANDISE IN COMMERCE, OR (2) THE RECRUIT-
MENT OF PERSONS TO UNDERTAKE,  OR  THE  COORDINATION,  ORGANIZATION,  OR
FACILITATION  OF,  SUCH  STEALING,  EMBEZZLEMENT, OR OBTAINING BY FRAUD,
FALSE PRETENSES, OR OTHER ILLEGAL MEANS;
  (G) "ORGANIZED RETAIL THEFT ENTERPRISE" SHALL MEAN ANY ASSOCIATION  OF
TWO  OR  MORE PERSONS WHO ENGAGE IN THE CONDUCT OF OR ARE ASSOCIATED FOR
THE PURPOSE OF EFFECTUATING ORGANIZED RETAIL THEFT OR ANY OTHER TRANSFER
OR SALE OF SHOPLIFTED MERCHANDISE;
  (H) "PERSON" SHALL MEAN ANY INDIVIDUAL OR  INDIVIDUALS,  INCLUDING  AN
AGENT,  OR  EMPLOYEE  OF  A MERCHANT WHERE THE FACTS OF THE SITUATION SO
REQUIRE;
  (I) "PREMISES OF A STORE OR  RETAIL  MERCANTILE  ESTABLISHMENT"  SHALL
MEAN  AND INCLUDE BUT BE NOT LIMITED TO THE RETAIL MERCANTILE ESTABLISH-
MENT, ANY COMMON-USE AREAS IN SHOPPING CENTERS AND ALL PARKING AREAS SET
ASIDE BY A MERCHANT OR ON BEHALF OF A MERCHANT FOR THE PARKING OF  VEHI-
CLES FOR THE CONVENIENCE OF THE PATRONS OF SUCH RETAIL MERCANTILE ESTAB-
LISHMENT;
  (J)  "SHOPLIFTING"  SHALL  MEAN  TO  (1) PURPOSELY TAKE POSSESSION OF,
CARRY  AWAY,  TRANSFER  OR  CAUSE  TO  BE  TRANSFERRED  ANY  MERCHANDISE
DISPLAYED,  HELD,  STORED,  OR  OFFERED  FOR  SALE BY ANY STORE OR OTHER
RETAIL MERCANTILE ESTABLISHMENT WITH  THE  INTENTION  OF  DEPRIVING  THE
MERCHANT  OF  THE  POSSESSION,  USE  OR  BENEFIT  OF SUCH MERCHANDISE OR
CONVERTING THE SAME TO THE USE OF SUCH  PERSON  WITHOUT  PAYING  TO  THE

S. 6959--A                          3

MERCHANT  THE  VALUE  THEREOF;  (2) PURPOSELY TO CONCEAL UPON HIS OR HER
PERSON OR OTHERWISE ANY MERCHANDISE OFFERED FOR SALE  BY  ANY  STORE  OR
OTHER  RETAIL  MERCANTILE  ESTABLISHMENT WITH THE INTENTION OF DEPRIVING
THE  MERCHANT  OF  THE  PROCESSES, USE OR BENEFIT OF SUCH MERCHANDISE OR
CONVERTING THE SAME TO THE USE OF SUCH  PERSON  WITHOUT  PAYING  TO  THE
MERCHANT  THE  FULL  RETAIL  VALUE  THEREOF;  (3) PURPOSELY AND WITH THE
INTENT TO DEFRAUD, TO ALTER, TRANSFER OR REMOVE ANY LABEL, PRICE TAG  OR
MARKING  INDICIA OF VALUE OR ANY OTHER MARKINGS WHICH AID IN DETERMINING
VALUE AFFIXED TO ANY MERCHANDISE DISPLAYED, HELD, STORED OR OFFERED  FOR
SALE  BY  ANY  STORE  OR  OTHER  RETAIL  MERCANTILE ESTABLISHMENT AND TO
ATTEMPT TO PURCHASE SUCH  MERCHANDISE  PERSONALLY  OR  IN  CONSORT  WITH
ANOTHER AT LESS THAN THE FULL RETAIL VALUE WITH THE INTENTION OF DEPRIV-
ING THE MERCHANT OF ALL OR SOME PART OF THE VALUE THEREOF; (4) PURPOSELY
TO  TRANSFER ANY MERCHANDISE DISPLAYED, HELD, STORED OR OFFERED FOR SALE
BY ANY STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT FROM THE CONTAINER
IN OR ON WHICH THE SAME SHALL BE DISPLAYED TO ANY OTHER  CONTAINER  WITH
INTENT  TO  DEPRIVE THE MERCHANT OF ALL OR SOME PART OF THE RETAIL VALUE
THEREOF; OR (5) PURPOSELY TO UNDER-RING WITH THE INTENTION OF  DEPRIVING
THE MERCHANT OF THE FULL RETAIL VALUE THEREOF;
  (K)  "STORE  OR  OTHER  RETAIL  MERCANTILE ESTABLISHMENT" SHALL MEAN A
PLACE WHERE MERCHANDISE IS DISPLAYED, HELD, STORED, OR  OFFERED  TO  THE
PUBLIC FOR SALE; AND
  (L)  "UNDER-RING"  SHALL MEAN TO CAUSE THE CASH REGISTER OR OTHER SALE
RECORDING DEVICE TO REFLECT LESS THAN  THE  FULL  RETAIL  VALUE  OF  THE
MERCHANDISE.
  2.  A PERSON IS A LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE IF HE
OR SHE CONSPIRES WITH OTHERS AS AN ORGANIZER, SUPERVISOR,  FINANCIER  OR
MANAGER,  TO  ENGAGE FOR PROFIT IN ORGANIZED RETAIL CRIME OR IN A SCHEME
OR COURSE OF CONDUCT TO EFFECTUATE THE TRANSFER OR  SALE  OF  SHOPLIFTED
MERCHANDISE.  LEADING  AN  ORGANIZED RETAIL THEFT ENTERPRISE CONSTITUTES
LARCENY IN THE SECOND DEGREE. NOTWITHSTANDING THE PROVISIONS OF  SECTION
80.00  OF  THIS  CHAPTER,  THE COURT MAY IMPOSE A FINE NOT TO EXCEED TWO
HUNDRED FIFTY THOUSAND DOLLARS OR FIVE TIMES THE  RETAIL  VALUE  OF  THE
MERCHANDISE SEIZED AT THE TIME OF THE ARREST, WHICHEVER IS GREATER.
  3.  NOTWITHSTANDING THE PROVISIONS OF SECTION 70.35 OF THIS CHAPTER, A
CONVICTION OF LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE  SHALL  NOT
MERGE  WITH  THE  CONVICTION  FOR ANY OFFENSE WHICH IS THE OBJECT OF THE
CONSPIRACY. NOTHING CONTAINED IN THIS SECTION SHALL PROHIBIT  THE  COURT
FROM IMPOSING AN EXTENDED TERM PURSUANT TO ARTICLE SEVENTY OF THIS CHAP-
TER; NOR SHALL THIS SECTION BE CONSTRUED IN ANY WAY TO PRECLUDE OR LIMIT
THE PROSECUTION OR CONVICTION OF ANY PERSON FOR CONSPIRACY UNDER ARTICLE
ONE  HUNDRED  FIVE OF THIS CHAPTER, OR ANY PROSECUTION OR CONVICTION FOR
ANY OTHER OFFENSE.
  4. IT SHALL NOT BE NECESSARY IN ANY PROSECUTION UNDER THIS SECTION FOR
THE STATE TO PROVE THAT ANY INTENDED PROFIT WAS ACTUALLY  REALIZED.  THE
TRIER  OF  FACT  MAY INFER THAT A PARTICULAR SCHEME OR COURSE OF CONDUCT
WAS UNDERTAKEN FOR PROFIT  FROM  ALL  OF  THE  ATTENDING  CIRCUMSTANCES,
INCLUDING  BUT  NOT  LIMITED  TO  THE  NUMBER OF PERSONS INVOLVED IN THE
SCHEME OR COURSE OF CONDUCT, THE  ACTOR'S  NET  WORTH  AND  HIS  OR  HER
EXPENDITURES IN RELATION TO HIS OR HER LEGITIMATE SOURCES OF INCOME, THE
AMOUNT  OF  MERCHANDISE  INVOLVED,  OR  THE  AMOUNT  OF CASH OR CURRENCY
INVOLVED.
  5. IT SHALL NOT BE A DEFENSE TO A PROSECUTION UNDER THIS SECTION  THAT
ANY SHOPLIFTED MERCHANDISE WAS BROUGHT INTO OR TRANSPORTED IN THIS STATE
SOLELY  FOR  ULTIMATE DISTRIBUTION IN ANOTHER JURISDICTION; NOR SHALL IT

S. 6959--A                          4

BE A DEFENSE THAT ANY PROFIT WAS INTENDED TO BE MADE IN  ANOTHER  JURIS-
DICTION.
  S  3.    Section 155.40 of the penal law, as amended by chapter 515 of
the laws of 1986, is amended to read as follows:
S 155.40 Grand larceny in the second degree.
  A person is guilty of grand larceny  in  the  second  degree  when  he
steals property and when:
  1.  [The]  THE  value  of the property exceeds fifty thousand dollars;
[or]
  2. [The] THE property, regardless of its nature and value, is obtained
by extortion committed by instilling in the victim a fear that the actor
or another person will (a) cause physical injury to some person  in  the
future,  or (b) cause damage to property, or (c) use or abuse his OR HER
position as a public servant by engaging in conduct within or related to
his OR HER official duties, or by failing  or  refusing  to  perform  an
official duty, in such manner as to affect some person adversely; OR
  3.  THE  PERSON IS A LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE AS
PROVIDED IN SECTION 155.50 OF THIS ARTICLE.
  Grand larceny in the second degree is a class C felony.
  S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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