Senate Bill S8048

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

                                  8048

                            I N  S E N A T E

                              June 3, 2010
                               ___________

Introduced  by  Sen.  O. JOHNSON  -- read twice and ordered printed, and
  when printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law  and  the  general  obligations
  law, in relation to detention for larceny in mercantile establishments

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

  Section 1. Section 218 of the general  business  law,  as  amended  by
chapter 374 of the laws of 1994, is amended to read as follows:
  S  218.  Defense  of lawful detention. In any action for false arrest,
false  imprisonment,  unlawful  detention,  defamation   of   character,
assault, trespass, or invasion of civil rights, brought by any person by
reason  of  having  been detained on or in the immediate vicinity of the
premises of (a) a retail mercantile establishment  for  the  purpose  of
investigation or questioning as to criminal possession of an anti-secur-
ity  item  as  defined  in  section 170.47 of the penal law or as to the
ownership of any merchandise, or (b) a motion picture  theater  for  the
purposes  of  investigation or questioning as to the unauthorized opera-
tion of a recording device in a motion picture theater, it  shall  be  a
defense  to  such  action  that  the person was detained in a reasonable
manner and for not more than a reasonable time to permit  such  investi-
gation  or questioning by a peace officer acting pursuant to his special
duties, police officer or by the owner of the retail  mercantile  estab-
lishment  or  motion  picture theater, his OR HER authorized employee or
agent, and that such officer, owner, employee or  agent  had  reasonable
grounds  to  believe  that the person so detained was guilty of criminal
possession of an anti-security item as defined in section 170.47 of  the
penal  law  or  was  committing  or attempting to commit larceny on such
premises of such merchandise or was engaged in the  unauthorized  opera-
tion  of a recording device in a motion picture theater. As used in this
section, "reasonable grounds" shall include,  but  not  be  limited  to,
knowledge  that  a  person  (i)  has concealed possession of unpurchased
merchandise of a retail mercantile establishment, or (ii) has possession
of an item designed for the purpose of overcoming detection of  security
markings  attachments  placed on merchandise offered for sale at such an

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

                                                           LBD15223-02-0

S. 8048                             2

establishment, or (iii) has possession of a recording device in a  thea-
ter in which a motion picture is being exhibited and a "reasonable time"
shall  mean  the  PERIOD  OF  time, NOT TO EXCEED ONE HOUR, necessary to
permit  the  person  detained to make a statement or to refuse to make a
statement, and the time necessary to examine employees  and  records  of
the  mercantile  establishment relative to the ownership of the merchan-
dise, or possession of such an item or device.   UNDER NO  CIRCUMSTANCES
SHALL "REASONABLE TIME" INCLUDE, NOR SHALL THE RELEASE FROM DETENTION BY
A MERCANTILE ESTABLISHMENT BE CONDITIONED UPON, ANY REQUIREMENT THAT THE
PERSON  DETAINED  FOR  COMMISSION  OF A LARCENY, OR HIS OR HER PARENT OR
LEGAL GUARDIAN, ENTER INTO ANY AGREEMENT TO PAY, DIRECTLY OR THROUGH THE
EXTENSION OF CREDIT, THE CIVIL DAMAGES PROVIDED FOR IN SECTION 11-105 OF
THE GENERAL OBLIGATIONS LAW.  EVERY PERSON WHO IS DETAINED  PURSUANT  TO
THIS  SECTION,  AND WHO DURING SUCH DETENTION MAKES AN ORAL STATEMENT OR
SIGNS ANY STATEMENT OR DOCUMENT,  SHALL  UPON  HIS  OR  HER  RELEASE  BE
PROVIDED  WITH A WRITTEN TRANSCRIPT OF SUCH ORAL STATEMENT AND A COPY OF
ANY STATEMENT OR DOCUMENT SO SIGNED. Such  detention  at  such  vicinity
shall  not  authorize  the  taking of such person's fingerprints at such
vicinity unless the taking of fingerprints is  otherwise  authorized  by
section  160.10  of  the  criminal  procedure  law  and are taken by the
arresting or other appropriate police officer or agency described there-
in in accordance with section 140.20 or 140.27  of  such  law.  Whenever
fingerprints are taken, the requirements of article one hundred sixty of
the criminal procedure law shall apply as if fully set forth herein.
  S  2.  Subdivisions  5, 6 and 8 of section 11-105 of the general obli-
gations law, as added by chapter 724 of the laws of  1991,  are  amended
and a new subdivision 8-a is added to read as follows:
  5. An adult or emancipated minor who commits larceny against the prop-
erty of a mercantile establishment shall be civilly liable to the opera-
tor of such establishment in an amount consisting of:
  (a)  the [retail] ACTUAL SALE price of the merchandise IMPOSED FOR THE
RETAIL SALE THEREOF AT THE TIME OF SUCH LARCENY if SUCH  MERCHANDISE  IS
not  recovered  in  merchantable condition up to an amount not to exceed
fifteen hundred dollars; plus
  (b) a penalty not to exceed the greater of  five  times  [the  retail]
SUCH  price of the merchandise or seventy-five dollars; provided, howev-
er, that in no event shall such penalty exceed five hundred dollars.
  6. Parents or legal guardians  of  an  unemancipated  minor  shall  be
civilly  liable  for said minor who commits larceny against the property
of a mercantile establishment to the operator of such  establishment  in
an amount consisting of:
  (a)  the [retail] ACTUAL SALE price of the merchandise IMPOSED FOR THE
RETAIL SALE THEREOF AT THE TIME OF SUCH LARCENY if SUCH  MERCHANDISE  IS
not  recovered  in  merchantable condition up to an amount not to exceed
fifteen hundred dollars; plus
  (b) a penalty not to exceed the greater of  five  times  [the  retail]
SUCH  price of the merchandise or seventy-five dollars; provided, howev-
er, that in no event shall such penalty exceed five hundred dollars.
  8. The fact that an operator of a mercantile establishment  may  bring
an  action  against  an individual as provided in this section shall not
limit the right of such merchant to demand, orally or in writing, that a
person who is liable for damages and penalties under this section  remit
the damages and penalties prior to the commencement of any legal action.
PROVIDED,  HOWEVER,  UNDER NO CIRCUMSTANCES SHALL THE PROVISIONS OF THIS
SUBDIVISION BE DEEMED TO AUTHORIZE THE OPERATOR OF A  MERCANTILE  ESTAB-
LISHMENT  TO DETAIN ANY PERSON IN VIOLATION OF SECTION TWO HUNDRED EIGH-

S. 8048                             3

TEEN OF THE GENERAL BUSINESS LAW  FOR  THE  PURPOSE  OF  RECOVERING  THE
DAMAGES AND PENALTIES ESTABLISHED PURSUANT TO THIS SECTION. ANY OPERATOR
OF  A MERCANTILE ESTABLISHMENT WHO SO DETAINS ANY PERSON IN VIOLATION OF
SUCH  SECTION OF THE GENERAL BUSINESS LAW SHALL FORFEIT HIS OR HER RIGHT
TO DAMAGES AND PENALTIES PURSUANT TO  THIS  SECTION,  AND  SHALL  REMAIN
CIVILLY  LIABLE TO THE PERSON DETAINED FOR FALSE ARREST, FALSE IMPRISON-
MENT, UNLAWFUL DETENTION, DEFAMATION  OF  CHARACTER,  ASSAULT,  TRESPASS
AND/OR INVASION OF CIVIL RIGHTS.
  8-A. IN ANY ACTION BROUGHT PURSUANT TO SUBDIVISION FIVE OR SIX OF THIS
SECTION, THE COURT SHALL CONSIDER IN THE INTEREST OF JUSTICE, AS A MITI-
GATING  CIRCUMSTANCE,  ANY CREDIBLE EVIDENCE OFFERED BY THE DEFENDANT OF
MENTAL DISEASE OR DEFECT, AS DEFINED IN SECTION 40.15 OF THE PENAL  LAW,
SUFFERED BY SUCH DEFENDANT.
  S  3.  This  act shall take effect on the thirtieth day after it shall
have become a law, and shall apply to larcenies and attempted  larcenies
committed on or after such effective date.