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

                                  10328

                          I N  A S S E M B L Y

                              May 22, 2012
                               ___________

Introduced by M. of A. CUSICK -- read once and referred to the Committee
  on Codes

AN  ACT to amend the general business law and the penal law, in relation
  to the prevention of organized retail crime

  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 article
29-BB to read as follows:

                              ARTICLE 29-BB
                  PREVENTION OF ORGANIZED RETAIL CRIME

SECTION 527.   LEGISLATIVE FINDINGS AND DETERMINATIONS.
        527-A. ORGANIZED RETAIL CRIME.
        527-B. ORGANIZED  RETAIL THEFT WITH AGGREGATE VALUE OF ONE THOU-
                 SAND DOLLARS OR MORE.

  S 527. LEGISLATIVE FINDINGS AND DETERMINATIONS.  (A)  THE  LEGISLATURE
FINDS  AND DETERMINES THAT ORGANIZED RETAIL CRIME IS A DISTURBING CRIMI-
NAL ENTERPRISE THAT INVOLVES THE LARGE SCALE  THEFT  OF  CONSUMER  ITEMS
FROM  RETAIL COMMERCIAL ESTABLISHMENTS. SUCH CRIMINAL ACTIVITY HAS BROAD
AND DETRIMENTAL IMPLICATIONS FOR NEW YORK, ITS BUSINESSES AND CONSUMERS,
AND ADVERSELY AFFECTS THE HEALTH, SAFETY AND WELFARE  OF  ALL  CITIZENS.
ORGANIZED  RETAIL  CRIME  IS  UNDERTAKEN BY PROFESSIONAL SHOPLIFTERS WHO
STEAL OR FRAUDULENTLY OBTAIN MERCHANDISE WITH THE INTENT TO RESELL  SUCH
ITEMS TO INDIVIDUALS OR COMMERCIAL MARKETPLACES.
  (B)  THE  LEGISLATURE  FURTHER  FINDS  AND  DECLARES THAT THE ECONOMIC
IMPACT OF ORGANIZED RETAIL CRIME EXTENDS FAR  BEYOND  THE  MANUFACTURING
AND  RETAIL  INDUSTRY, AND INCLUDES COSTS AND INCONVENIENCES INCURRED BY
CONSUMERS, A  REDUCTION  IN  POTENTIAL  COMMERCIAL  EMPLOYMENT  AND  JOB
GROWTH,  AND  A  LOSS OF SALES TAX REVENUE FOR THE STATE AND ITS LOCALI-
TIES. THE SCOPE, SIZE AND SOPHISTICATION  OF  LOSS  PREVENTION  MEASURES
DEPLOYED  BY  RETAILERS TO PREVENT SUCH CRIMINAL ACTIVITY ARE ULTIMATELY
BORNE BY CONSUMERS IN THE FORM OF HIGHER PRICES OF RETAIL GOODS, AND THE

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

                                                           LBD15354-01-2

A. 10328                            2

THEFT AND UNREGULATED RESALE OF STOLEN RETAIL ITEMS, SUCH AS  CONSUMABLE
AND  HEALTH  AND BEAUTY PRODUCTS, CAN PRESENT SUBSTANTIAL HEALTH, SAFETY
AND QUALITY CONCERNS FOR INDIVIDUAL CONSUMERS WHO PURCHASE  THESE  GOODS
UNAWARE THAT THEY ARE BEING OFFERED FOR SALE AS A RESULT OF AN ORGANIZED
RETAIL CRIME TRANSACTION.
  (C)  THE  LEGISLATURE  FURTHER  FINDS AND DECLARES THAT THE STATE MUST
TAKE SERIOUS ACTION TO COMBAT THE ISSUE OF ORGANIZED RETAIL  CRIME,  AND
TO  PREVENT  ITS  OCCURRENCE. THAT MEASURES MUST BE ENACTED IN BOTH THIS
ARTICLE AND THE PENAL LAW, TO DETER AND PUNISH  SUCH  BEHAVIOR,  AND  TO
PROMOTE  A RETAIL ATMOSPHERE IN NEW YORK WHERE THIS TYPE OF CONDUCT WILL
NOT OCCUR. THROUGH THE ESTABLISHMENT OF SUCH MEASURES, IT IS THE  INTEN-
TION OF THIS LEGISLATURE TO DETER AND PUNISH ORGANIZED RETAIL CRIME, AND
TO  PROMOTE AND PROTECT THE HEALTH, SAFETY AND ECONOMIC AFFORDABILITY OF
NEW YORK'S CONSUMERS.
  S 527-A. ORGANIZED RETAIL CRIME. (A) DEFINITIONS. FOR THE PURPOSES  OF
THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  1.  "ACCESS  DEVICE"  SHALL MEAN ANY CARD, INCLUDING GIFT CARD, PLATE,
CODE, INCLUDING UNIVERSAL PRICE CODE LABEL, ACCOUNT  NUMBER,  ELECTRONIC
SERIAL  NUMBER,  MOBILE  IDENTIFICATION  NUMBER, PERSONAL IDENTIFICATION
NUMBER, OR OTHER TELECOMMUNICATIONS SERVICE,  EQUIPMENT,  OR  INSTRUMENT
IDENTIFIER,  INCLUDING  A RADIO FREQUENCY IDENTIFICATION TRANSPONDER, OR
OTHER MEANS OF ACCOUNT ACCESS THAT CAN BE USED, ALONE OR IN  CONJUNCTION
WITH  ANOTHER  ACCESS  DEVICE,  TO OBTAIN MONEY, GOODS, SERVICES, OR ANY
OTHER THING OF VALUE, OR THAT CAN BE USED  TO  INITIATE  A  TRANSFER  OF
FUNDS (OTHER THAN A TRANSFER ORIGINATED SOLELY BY PAPER INSTRUMENT);
  2. "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;
  3. "CONCEAL" SHALL MEAN TO HIDE, COVER, OR OTHERWISE DISGUISE MERCHAN-
DISE SO THAT, ALTHOUGH THERE MAY BE SOME NOTICE OF ITS PRESENCE,  IT  IS
NOT VISIBLE THROUGH ORDINARY OBSERVATION;
  4.  "CREDIT  CARD SYSTEM NUMBER" SHALL MEAN A FINANCIAL INSTITUTION OR
OTHER ENTITY THAT IS A MEMBER OF A  CREDIT  CARD  SYSTEM,  INCLUDING  AN
ENTITY,  WHETHER AFFILIATED WITH OR IDENTICAL TO THE CREDIT CARD ISSUER,
THAT IS THE SOLE MEMBER OF A CREDIT CARD SYSTEM;
  5. "COUNTERFEIT ACCESS DEVICE" SHALL MEAN ANY ACCESS  DEVICE  THAT  IS
COUNTERFEIT,  FICTITIOUS,  ALTERED, OR FORGED, OR AN IDENTIFIABLE COMPO-
NENT OF AN ACCESS DEVICE OR A COUNTERFEIT ACCESS DEVICE;
  6. "DEVICE-MAKING EQUIPMENT" SHALL MEAN ANY EQUIPMENT,  MECHANISM,  OR
IMPRESSION  DESIGNED OR PRIMARILY USED FOR MAKING AN UNAUTHORIZED ACCESS
DEVICE OR A COUNTERFEIT ACCESS DEVICE;
  7. "FULL RETAIL VALUE" SHALL MEAN THE MERCHANT'S STATED OR  ADVERTISED
PRICE OF THE MERCHANDISE;
  8.  "MERCHANDISE"  SHALL MEAN ANY GOODS, CHATTELS, FOODSTUFFS OR WARES
OF ANY TYPE AND DESCRIPTION, REGARDLESS OF THE VALUE THEREOF;
  9. "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;
  10.  "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

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FACILITATION  OF,  SUCH  STEALING,  EMBEZZLEMENT, OR OBTAINING BY FRAUD,
FALSE PRETENSES, OR OTHER ILLEGAL MEANS;
  11.  "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;
  12.  "PERSON"  SHALL  MEAN ANY INDIVIDUAL OR INDIVIDUALS, INCLUDING AN
AGENT, OR EMPLOYEE OF A MERCHANT WHERE THE FACTS  OF  THE  SITUATION  SO
REQUIRE;
  13.  "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;
  14. "PRODUCE" SHALL MEAN DESIGN, ALTER,  AUTHENTICATE,  DUPLICATE,  OR
ASSEMBLE;
  15.  "RETAIL  SALES  RECEIPT" SHALL MEAN ANY HANDWRITTEN OR MACHINE OR
COMPUTER PRODUCED DOCUMENT AS PROPERLY ISSUED BY A RETAILER TO  ACKNOWL-
EDGE PAYMENT RECEIVED BY A CUSTOMER;
  16.  "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
MERCHANT THE VALUE THEREOF; (2) PURPOSELY 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
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 UNDER-RING WITH THE INTENTION OF DEPRIVING THE
MERCHANT OF THE FULL RETAIL VALUE THEREOF;
  17. "STORE OR OTHER RETAIL  MERCANTILE  ESTABLISHMENT"  SHALL  MEAN  A
PLACE  WHERE  MERCHANDISE  IS DISPLAYED, HELD, STORED, OR OFFERED TO THE
PUBLIC FOR SALE;
  18. "TRAFFIC" SHALL MEAN TRANSFER, OR OTHERWISE DISPOSE OF, TO ANOTHER
IN A FRAUDULENT MANNER, OR OBTAIN CONTROL OF WITH INTENT TO FRAUDULENTLY
TRANSFER OR DISPOSE OF;
  19. "UNAUTHORIZED ACCESS DEVICE" SHALL MEAN ANY ACCESS DEVICE THAT  IS
LOST,  STOLEN,  EXPIRED,  REVOKED,  CANCELED, OR OBTAINED WITH INTENT TO
DEFRAUD;

A. 10328                            4

  20. "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; AND
  21.  "UNIFORM  PRODUCT  CODE  LABEL"  SHALL MEAN ANY BAR CODE OR OTHER
CODING SYSTEM DESIGNED TO BE READ BY  COMPUTER  WHICH  CONTAINS  PRICING
INFORMATION AND OTHER RELATED INFORMATION USED BY A RETAILER AND READ BY
A  COMPUTER  AT  POINT OF PURCHASE FOR PURPOSES OF ESTABLISHING THE SALE
PRICE OF A GOOD.
  (B) ORGANIZED RETAIL CRIME. THE PRACTICE OF  ORGANIZED  RETAIL  CRIME,
INCLUDING  ORGANIZED  RETAIL  THEFT,  LEADING  AN ORGANIZED RETAIL THEFT
ENTERPRISE, AND CRIMINAL  PRACTICES  WITH  AN  ACCESS  DEVICE  SHALL  BE
PROHIBITED  AND UNLAWFUL UNDER THIS ARTICLE AND PURSUANT TO ARTICLES ONE
HUNDRED FIFTY-FIVE AND ONE HUNDRED SIXTY-FIVE OF THE PENAL LAW.
  S 527-B. ORGANIZED RETAIL THEFT WITH AGGREGATE VALUE OF  ONE  THOUSAND
DOLLARS  OR  MORE.  A  PERSON  SHALL BE GUILTY OF ORGANIZED RETAIL THEFT
WHEN:
  (A) THE PROPERTY IS STOLEN FROM A RETAIL MERCANTILE  ESTABLISHMENT  AS
DEFINED  IN SECTION TWO HUNDRED SEVENTEEN OF THIS CHAPTER AND THE AGGRE-
GATED VALUE OF PRICE TAGS, STICKER TAGS, OR OTHERWISE ADVERTISED  RETAIL
PRICES OF SUCH PROPERTY EXCEEDS ONE THOUSAND DOLLARS.
  (B)  THE  PROPERTY  IS STOLEN BY ONE PERSON, OR BY TWO OR MORE PERSONS
WORKING IN ASSOCIATION, FROM ONE OR  MORE  THAN  ONE  RETAIL  MERCANTILE
ESTABLISHMENT  AS DEFINED IN SECTION TWO HUNDRED SEVENTEEN OF THIS CHAP-
TER WITHIN A PERIOD OF THIRTY DAYS OR LESS BETWEEN THE FIRST AND  SECOND
EPISODE,  THE  SECOND  AND  THIRD  EPISODE,  OR  BETWEEN  ANY SUCCEEDING
EPISODES, AND THE AGGREGATED VALUE OF PRICE  TAGS,  STICKER  PRICES,  OR
OTHERWISE ADVERTISED RETAIL PRICES OF SUCH PROPERTY EXCEEDS ONE THOUSAND
DOLLARS.
  ORGANIZED RETAIL THEFT WITH AGGREGATE VALUE OF ONE THOUSAND DOLLARS OR
MORE SHALL BE A CLASS E FELONY.
  S  2.  Section  155.30  of  the penal law is amended by adding two new
subdivisions 12 and 13 to read as follows:
  12. THE PROPERTY IS STOLEN FROM A RETAIL MERCANTILE  ESTABLISHMENT  AS
DEFINED IN SECTION TWO HUNDRED SEVENTEEN OF THE GENERAL BUSINESS LAW AND
THE  AGGREGATED  VALUE  OF PRICE TAGS, STICKER TAGS, OR OTHERWISE ADVER-
TISED RETAIL PRICES OF SUCH PROPERTY EXCEEDS ONE THOUSAND DOLLARS.
  13. THE PROPERTY IS STOLEN BY ONE PERSON, OR BY TWO  OR  MORE  PERSONS
WORKING  IN  ASSOCIATION,  FROM  ONE  OR MORE THAN ONE RETAIL MERCANTILE
ESTABLISHMENT AS DEFINED IN SECTION TWO HUNDRED SEVENTEEN OF THE GENERAL
BUSINESS LAW WITHIN A PERIOD OF THIRTY DAYS OR LESS  BETWEEN  THE  FIRST
AND  SECOND  EPISODE,  THE  SECOND  AND  THIRD  EPISODE,  OR BETWEEN ANY
SUCCEEDING EPISODES, AND THE AGGREGATED VALUE  OF  PRICE  TAGS,  STICKER
PRICES,  OR  OTHERWISE ADVERTISED RETAIL PRICES OF SUCH PROPERTY EXCEEDS
ONE THOUSAND DOLLARS.
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.