senate Bill S29

2009-2010 Legislative Session

Enacts the "anti-organized retail theft act"

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Archive: Last Bill Status - In Committee


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 06, 2010 referred to codes
Jan 07, 2009 referred to codes

Co-Sponsors

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S29 - Bill Details

See Assembly Version of this Bill:
A1328
Current Committee:
Law Section:
Penal Law

S29 - Bill Texts

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BILL NUMBER: S29

TITLE OF BILL :
An act to amend the penal law, in relation to criminalizing organized
retail theft and establishing the crime of leader of an organized
retail theft enterprise (Part A); to amend the penal law, in relation
to the authorization of jurisdiction and venue and authorized
sentences for a pattern of criminal offenses (Part B); to amend the
penal law, in relation to the aggregated value of stolen merchandise
(Part C); to amend the penal law, in relation to the use of emergency
exit in the theft of property (Part D); to amend the penal law, in
relation to the possession of anti-security items (Part E); to amend
the penal law, in relation to retail sales receipt and universal
product code label fraud (Part F); to amend the general business law,
in relation to itinerant vendors (Part G); and to amend the penal law,
in relation to theft with intent to resell on an online marketplace
(Part H)


PURPOSE :
To create within the penal law and general business law a Omnibus
Anti-Organized Retail Theft Act. (AORTA) Part A provides law
enforcement parity with the State of New Jersey in an attempt to halt
the burgeoning criminal activity known as organized retail theft which
greatly effects the commerce of the greater New York City Metro area;

* Part B defines a pattern of crimes related to organized retail
theft; authorizes sentencing, fines and imprisonment; and allows
District Attorneys to have venue and jurisdiction over the criminal
offense of organized retail theft when at least one of the crimes
constituting a pattern occurs within their county;

* Part C would codify state court rulings which allow prosecutors to
aggregate or add together numerous petite larcenies that are part of a
connected organized crime spree thus allowing prosecutors to charge
grand larceny in the 4th Degree (a Class E Felony with up to 4 years
in prison);

* Part D would make the use of stores emergency exit as means of
escape by organized theft rings a class E felony (1 to 4 years)
thereby providing store security and prosecutors another weapon in
curtailing these activities;

* Part E would enhance penalties for theft of property by a person who
possesses an item designed to block or otherwise override security
markings, tags, or attachments placed on property offered for sale in
a retail mercantile establishment otherwise known as "booster bags";

* Part F amends the penal law to make it a criminal offense to
transfer, make, alter, counterfeit or reproduce a retail sales receipt
or universal product code when the individual knows that the sales
receipt or universal product code is counterfeit. This legislation
would also make it a class E felony to possess a device for the
manufacture of fraudulent retail product receipt or universal product
codes;

* Part G would establish that no itinerant vendor, except for a
manufacturer, an authorized manufacturer's representative, or an
authorized distributor, shall offer for sale baby food,
non-prescription drugs, cosmetics, or batteries;

* Part H increases the penalties against those thieves who set up
Internet accounts for such a purpose.

SUMMARY OF PROVISIONS :
Section 1: Title
Part A: Section 1; Adds 155.43 Retail Theft and 155.44 Leader of an
organized retail theft enterprise to the Penal Law; provides
definitions thereof: Section 155.43, Sub 1 Definitions; Sub 2 Defines
Shoplifting; Sub 3 Defines Shoplifting as grand larceny in the 2nd
Degree; Sub 4 Legal presumptions; Sub 5 Apprehension and detention.

Part A: Section 2; Effective date.

Part B: Section 1; Adds Section 70.16 Sentences of imprisonment or
fines for a pattern of criminal offenses to the penal law. Defines a
pattern of criminal offenses with relation to organized retail theft;
Authorizes sentencing, fines and imprisonment by courts; Allows
District Attorney the to have jurisdiction over the criminal offense
of organized retail theft when at least one of the occurrences takes
place in that county.

Part B: Section 2; Effective Date.

Part C: Section 1; Aggregation. Amends paragraph 1 of section 155.30
of the penal law by adding a new subparagraph 1(a) and 1(b). This
legislation would codify state court rulings which allow prosecutors
to aggregate or add together numerous petite larcenies that are part
of a connected organized crime spree thus allowing prosecutors to
charge grand larceny in the 4th Degree (a Class E Felony with up to 4
years in prison).

Part C: Section 2; Effective Date.

Part D: Section 1; Emergency Exits. Amends section 155.30 of the penal
law by adding a new subdivision 13.

Part D: Section 2; Effective Date.

Part E: Section 1; Booster Bags. Adds a new subdivision 12 to Section
155.30 of the Penal Law to define "anti-security device" and render it
a crime to use same in theft of property. Amends Section 170.47 of the
Penal Law to tender it a class A misdemeanor to possess an
anti-security device with intent to use same to steal property at a
retail mercantile establishment.

Part E: Section 2; Effective Date.

Part F: Section 1; UPC Fraud: Adds 4 new sections to the penal code as
follows: Section 165.80 contains definitions with respect to the
sections that follow. Section 165.81 creates a crime of retail sales
receipt or universal product code fraud in the second degree which
entails use, transfer, alteration, counterfeit or reproduction of a
retail sales receipt or universal product code when the defendant
knows such to be counterfeit and does so with the intent to deceive or
defraud. This crime is a class A misdemeanor. Section 165.82 creates
the crime of retail sales receipt or universal product code fraud in
the first degree which is a class E felony. A person is guilty of this
offense when with intent to deceive or defraud, he uses, transfers,
makes, alters, counterfeits or reproduces 15 or more retail sales
receipts or universal product codes, or combination thereof, knowing
such to be counterfeit. Section 165.83 creates a class E felony of
possession of a fraudulent retail sales receipt or universal product
code manufacturing device.

Part F: Section 2; Effective Date.

Part G: Section 1; Itinerant Vendor. Amends § 38 of the General
Business Law to specifically define the following items -- baby food,
non-prescription drugs, cosmetics, and batteries -- as products that
may not be sold in flea markets unless sold by a manufacturer, an

authorized manufacturer's representative, or an authorized
distributor.

Part G: Section 2; Effective Date.

Part H: Section 1 and 2; Efencing. Amends section 155.30 of the penal
law by adding a new subdivision 12 and 13. Sub 12: Adds to grand
larceny in the 4th degree the aggregate value of selling stolen items
in the online marketplace and defines online marketplace.

Part H: Section 3; Effective Date.

EXISTING LAW :
Currently, petite larceny (shoplifting items under $1,000) is a
misdemeanor which could result in up to one year in jail. While the
courts have allowed aggregation of petite larcenies that are part of a
connected organized crime spree, there are no laws making this
determination a permanent part of or New York's Penal-Law. § 155.30
Grand Larceny in the fourth degree. A person is guilty of grand
larceny in the fourth degree when he steals property and when: 1. The
value of the property exceeds one thousand dollars; or 2. The property
consists of a public record, writing or instrument kept, tiled or
deposited according to law with or in the keeping of any public office
or public servant; or 3. The property consists of secret scientific
material; or 4. The property consists of a credit card or debit card;
or 5. The property, regardless of its nature and value, is taken from
the person of another; or 6. The property, regardless of its nature
and value, is obtained by extortion; or 7. The property consists of
one or more firearms, rifles or shotguns, as such terms are defined in
section 265.00 of this chapter; or 8. The value of the property
exceeds one hundred dollars and the property consists of a motor
vehicle, as defined in section one hundred twenty-five of the vehicle
and traffic law, other than a motorcycle, as defined in section one
hundred twenty-three of such law; or 9. The property consists of a
scroll, religious vestment, vessel or other item of property having a
value of at least one hundred dollars kept for or used in connection
with religious worship in any building or structure used as a place of
religious worship by a religious corporation, as incorporated under
the religious corporations law or the education law. 10. The property
consists of an access device which the person intends to use
unlawfully to obtain telephone service. 11. The property consists of
anhydrous ammonia or liquified ammonia gas and the actor intends to
use, or knows another person intends to use, such anhydrous ammonia or
liquified ammonia gas to manufacture methamphetamine. Grand larceny in
the fourth degree is a class E felony.

JUSTIFICATION :
Organized retail crime comprises a wide spectrum of high-volume and
highly organized theft rings that cost New York retailers hundreds of
millions of dollars annually and, more importantly, compromise the
health, safety, and wallet of unsuspecting New York consumers. And for
every item stolen, New York's 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, with
the emergence of organized criminal theft at an unprecedented level.
Estimates from retail and law enforcement suggest the annual loss to
organized retail theft in all retail sectors across the country
combines to reach some $31 billion. Retailers are forced to offset
these significant costs through higher prices - meaning that honest
consumers are forced to endure the impact of organized retail theft
and professional shoplifters. Theft rings tend to focus on
over-the-counter drugs, pain relievers, health and beauty aids, and
clothing of all kinds. These items have considerable value and are
easily resold to other retailers or in stores the criminal fences
operate.

DEFINITION OF ORGANIZED RETAIL THEFT AND LEADER OF AN ORGANIZED
ENTERPRISE :
The state of New Jersey adopted Chapter 56, Laws of 2006 that defines
"organized retail theft enterprise" as "any association of two or more
persons who engage in the conduct of or are associated for the purpose
of effectuating the transfer or sale of shoplifted merchandise." This
legislation seeks parity with our neighbor state in an equally
aggressive and sensible attempt to curtail a burgeoning criminal
activity that today finds almost unlimited opportunities in
retail-rich New York State.

PATTERN OF CRIMINAL OFFENSES :
Organized gangs of retail thieves know that penalties they may face if
apprehended will be limited to their activity within a certain
jurisdiction - despite the fact that their theft sprees can, will, and
usually do involve theft from stores across a number of localities and
counties. In other words, they are not deterred by a drive from one
county to the next in their effort to complete their task of stealing
as much merchandise as possible.

This legislation would ensure that one county could, under certain
circumstances, prosecute organized retail thieves operating across
county borders. With that authority, a county prosecutor could
aggregate the value of the thefts committees across county lines
within a certain period of time, since, again, retail thieves tend to
travel from location to location to fill their "shopping lists" that
they'll turn over to their fences.

AGGREGATION :
These are professional thieves, not the amateur shoplifter who may
pocket one or two items at a time. These thieves know that it's petit
larceny - a misdemeanor - to steal items worth up to $1,000 from one
location. They'll travel from location to location and curtail their
theft just below that threshold. Court cases in 2001 and 2002 found it
sufficient to show that the aggregated value of merchandise stolen
exceeded the statutory $1,000 threshold and allowed prosecution for
grand larceny in the fourth degree (People v. Dennis 1 Dept. 2002 ,
appeal denied; People v. Wandell 3 Dept. 2001 ). This legislation
would codify those rulings and expand them to include the idea of
aggregating the value of merchandise stolen in a "single event" (i.e.,
one theft spree over a certain period of time, as that is how
organized retail thieves often strike).

EMERGENCY EXITS :
This legislation seeks to increase the penalty for using a store's
designated emergency exit to facilitate the theft of merchandise from
the store. The "emergency exit theft" has grown in popularity among
organized retail thieves. The professional thieves load their shopping
carts with merchandise, then signal an accomplice to be waiting with a
car running and ready to load right outside the designated emergency
exit. A quick push through the emergency exit triggers the store's
alarm, but the trained thieves know they have a few minutes to load
the car and make a quick getaway before the store employee can make it
to the exit. Most times, the thieves are long gone by the time the
security employees are able to make it to the opened door.

In addressing this measure of retail crime, the legislation
distinguishes between the amateur and professional shoplifters in
order to expedite the process of prosecuting organized retail criminal
gangs. There should be no mistaking that a person bursting through an
emergency exit with a cart full of multiple quantities of the same
item is not the average, run-of-the-mill amateur shoplifter. Chances
are he or she is a part of a larger gang of organized thieves tasked
to clean out as many stores as possible as quickly as possible,
robbing the store of its merchandise, causing higher prices for honest
consumers, putting at risk the health and safety of the end-user of
the stolen products, and stealing sales tax revenue from the state and
local governments.

BOOSTER BAGS :
"Booster bags" are crafted to hide stolen merchandise from security
devices, theft sensors, and similar units installed by retailers to
guard against the theft of merchandise. The bags can be as rudimentary
as a simple shopping bag lined with aluminum foil, or fashioned to be
more complex and difficult to detect. Whatever the quality, the bags
are crafted so that they will block or otherwise override the store's
security system, hiding the stolen merchandise and allowing the
shoplifter a clean exit from the store. This legislation would enhance
the criminal penalty against a person who uses a "booster bag" or
other such item designed to override a retail establishment's security
system in order to steal merchandise from that store. It is an
important step forward in helping retailers in New York State curtail
the growing problem of organized retail theft and professional
shoplifting.

In addressing this measure of retail crime, the legislation
distinguishes between the amateur and professional shoplifters in
order to expedite the process of prosecuting organized retail criminal
gangs. Organized thieves are trained to know what they can and can't
do in order to minimize the potential for prosecution and penalty;
this legislation seeks to lower that threshold to ensure that
organized thieves steer well clear of the robust retail marketplace
that attracts them to New York State.

UPC FRAUD :
To amend the penal law to make it a criminal offense to transfer,
make, alter, counterfeit or reproduce a retail sales receipt or
universal product code when the individual knows that the sales
receipt or universal product code is counterfeit. The bill would also
make it a class E felony to possess a device for the manufacture of
fraudulent retail product receipt or universal product codes.
Increasingly, retailers are subject to fraud perpetrated on them by
dishonest customers who transfer, alter, counterfeit or otherwise
fraudulently manipulate uniform product code labels. Also, retailers
are frequently defrauded by customers who manufacture fraudulent,
counterfeit or altered sales receipts which are then used to return
goods for amounts in excess of actual value of the purchase. This
legislation is necessary in order to give law enforcement officials
tools necessary to address problems of UPC fraud and sales receipt
fraud.

ITINERANT VENDORS :
The itinerant vendor statute, which was adopted as Chapter 282, Laws
of 1995, was originally enacted to curtail the sale of certain
perishable, high-theft items through flea markets. The 1995 law
focused on baby foods and over-the-counter drugs, as these were items
that professional thieves were targeting to resell through flea
markets and were products that were compromised when exposed to
sunlight and heat. The need to tighten the definitions in General
Business Law § 38 were brought to light when law enforcement officials
in central New York encountered difficulties in halting the sale of
stolen, non-prescription drugs because of the ambiguous definitions
contained in the current law. The proposed bill will tighten the
current statute by redefining baby foods and non-prescription drugs.
It will further expand the statute to prevent the sale of cosmetics
and batteries by itinerant vendors, as these products have become
high-theft items among those engaged in organized retail theft and
because many cosmetics are similarly affected by exposure to sunlight
and heat and thereby pose a health risk. The illegal activity this
bill aims to thwart differs from shoplifting in that shoplifters
typically steal single items for their own use, whereas this bill
addresses the multiple theft of products by career criminals who steal
primarily to sell the stolen goods. These crimes are often committed
to support other illegal activity involving drug use. Baby foods,
non-prescription drugs, cosmetics and batteries are attractive to
these criminals because they are small, easily cancelable, and
relatively expensive items. Prohibiting the sale of these products in
flea markets will close an important outlet to these criminals,
thereby making their theft less desirable. The public health concerns
addressed by this bill and the need to support law enforcement efforts
warrant passage of this measure.

EFENCING :
Internet auction sites and peer-to-peer advertising programs have
become the cyberspace flea markets where stolen goods - everything
from gift cards to health and beauty aids - are sold, usually to
unsuspecting consumers who think they've stumbled on a deal that is
too good to be true. And just as when these items are sold by
"itinerant vendors" on the street, they can become compromised and
indeed dangerous when they become outdated, poorly packaged,
incorrectly stored, and moved solely for ill-gotten profit rather than
with the interest of the consumer in mind.

Internet auction sites, however, are not the problem - the problem is
when organized retail thieves use these sites to move their
merchandise. This legislation seeks to increase the penalties against
those thieves who set up Internet accounts for such a purpose.

LEGISLATIVE HISTORY :
This is new legislation.
Separate legislation combined into this Omnibus Act:
Itinerant Vendors: 2007: S.4442 (Passed Senate; died in Assembly
Codes);
2005 - 2006: S.3174 (Balboni)/A.5670; (Passed Senate; died in Assembly
Codes);
2003-2004: S.7138-A (Balboni)/A.10822A; (Passed Senate; died in
Assembly Codes);
Booster Bags: 2007: S.5153/A.9094 (Passed Senate; died in Assembly
Codes);
UPC Fraud: 2003 - 2004: S.2051 (Rath)/A.6144 (Codes)
2008: Referred to Codes (S.7623/A.11547)

FISCAL IMPLICATIONS :
Curbing organized retail theft in New York State will ensure that the
state's retailers will be able to sell the items rather than lose them
to theft, thereby collecting and remitting to state and local
government sales tax that otherwise would be lost to theft.

EFFECTIVE DATE :
Parts A, D and H with take effect 90 days after the bill shall have
become law; Part B, C and E shall take effect on the 1st of November
next succeeding the date on which it shall have become law; Part F
takes effect on January 1 next succeeding the date on which it shall
have become law; Part G takes effect immediately upon being signed
into law.
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