S T A T E   O F   N E W   Y O R K
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                                  8535

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              July 13, 2011
                               ___________

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

AN ACT to amend the penal law, in relation to establishing the crime  of
  financial exploitation of a vulnerable elderly person or a person with
  a disability; and to amend the general obligations law, in relation to
  civil  liability  for  financial  exploitation of a vulnerable elderly
  person

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

  Section  1.    The penal law is amended by adding a new article 262 to
read as follows:
                               ARTICLE 262
        FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR
                       A PERSON WITH A DISABILITY
SECTION 262.00 DEFINITIONS.
        262.05 FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON  OR
                  A PERSON WITH A DISABILITY IN THE FOURTH DEGREE.
        262.10 FINANCIAL  EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR
                  A PERSON WITH A DISABILITY IN THE THIRD DEGREE.
        262.15 FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON  OR
                  A PERSON WITH A DISABILITY IN THE SECOND DEGREE.
        262.20 FINANCIAL  EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR
                  A PERSON WITH A DISABILITY IN THE FIRST DEGREE.
        262.30 FINANCIAL EXPLOITATION; NO DEFENSE.
        262.35 FINANCIAL EXPLOITATION; DEFENSE.
S 262.00 DEFINITIONS.
  FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING DEFINITIONS SHALL APPLY:
  1. "VULNERABLE ELDERLY PERSON" MEANS A PERSON SIXTY YEARS  OF  AGE  OR
OLDER  WHO  IS  SUFFERING  FROM  A  DISEASE OR INFIRMITY ASSOCIATED WITH
ADVANCED AGE AND MANIFESTED BY PHYSICAL OR MENTAL  DYSFUNCTIONING  WHICH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11486-01-1

              

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RENDERS SUCH PERSON INCAPABLE OF APPRAISING OR PREVENTING THE COMMISSION
OF THE OFFENSE.
  2.  "PERSON  WITH  A  DISABILITY"  MEANS  A PERSON WHO HAS A PHYSICAL,
MENTAL OR MEDICAL IMPAIRMENT RESULTING FROM  ANATOMICAL,  PHYSIOLOGICAL,
OR  NEUROLOGICAL CONDITIONS THAT PREVENT THE EXERCISE OF A NORMAL BODILY
FUNCTION OR THAT SUBSTANTIALLY IMPAIR COGNITIVE  FUNCTION,  AND  INCLUDE
BUT  ARE  NOT LIMITED TO, IMPAIRMENTS REQUIRING THE USE OF AN ARTIFICIAL
DEVICE TO MOVE, WALK, SEE, HEAR, OR BREATHE,  SUCH  AS  A  WHEEL  CHAIR,
BRACES, CRUTCHES, RESPIRATOR, OR OTHER SUPPORTIVE EQUIPMENT, OR USE OF A
GUIDE DOG OR OTHER GUIDING DEVICE.
  3.  "PERSON"  INCLUDES ANY INDIVIDUAL, FIRM, PARTNERSHIP, ASSOCIATION,
PRIVATE OR PUBLIC CORPORATION, OR A GOVERNMENT OR  GOVERNMENTAL  INSTRU-
MENTALITY.
  4.  "INTIMIDATION"  MEANS  THE  COMMUNICATION  TO A VULNERABLE ELDERLY
PERSON OR A PERSON WITH A DISABILITY THAT HE OR SHE SHALL BE DEPRIVED OF
FOOD OR NUTRITION, SHELTER, PRESCRIBED MEDICATION OR  MEDICAL  CARE  AND
TREATMENT; OR THE USE OF, OR THREATENED USE OF, UNLAWFUL PHYSICAL FORCE;
OR  ANY THREAT INVOLVING EXTORTION AS DEFINED IN PARAGRAPH (E) OF SUBDI-
VISION TWO OF SECTION 155.05 OF THIS CHAPTER.
  5. "DECEPTION" MEANS A FALSE REPRESENTATION OR CONCEALMENT OF A MATTER
OF FACT, WHETHER BY WORDS OR CONDUCT, BY FALSE OR MISLEADING STATEMENTS,
WHICH DECEIVES AND IS INTENDED TO DECEIVE, THE VULNERABLE ELDERLY PERSON
OR PERSON WITH A DISABILITY, SO THAT HE OR SHE SHALL ACT UPON IT TO  HIS
OR HER ECONOMIC DETRIMENT.
  6.  "OBTAIN"  INCLUDES, BUT IS NOT LIMITED TO, THE BRINGING ABOUT OF A
TRANSFER OR PURPORTED TRANSFER  OF  PROPERTY  OR  OF  A  LEGAL  INTEREST
THERE-IN, WHETHER TO THE OBTAINER OR ANOTHER.
  7.  "CONTROL"  MEANS  THE POWER, RIGHT OR AUTHORITY TO MANAGE, DIRECT,
SUPERINTEND, RESTRICT, REGULATE,  GOVERN,  ADMINISTER,  OR  OVERSEE  THE
WHOLE  OR  ANY  PART OF THE PROPERTY OF A VULNERABLE ELDERLY PERSON OR A
PERSON WITH A DISABILITY.
  8. "A PERSON STANDS IN A POSITION  OF  TRUST  OR  CONFIDENCE"  WITH  A
VULNERABLE ELDERLY PERSON OR A PERSON WITH A DISABILITY WHEN HE OR SHE:
  (A)  IS  A  PARENT,  SPOUSE, ADULT CHILD OR OTHER RELATIVE BY BLOOD OR
MARRIAGE OF THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILI-
TY, OR
  (B) IS A JOINT TENANT OR TENANT IN COMMON WITH THE VULNERABLE  ELDERLY
PERSON OR THE PERSON WITH A DISABILITY, OR
  (C)  HAS  A POWER OF ATTORNEY OR OTHER LEGAL OR FIDUCIARY RELATIONSHIP
WITH THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY, OR
  (D) RECEIVES MONETARY OR OTHER VALUABLE  CONSIDERATION  FOR  PROVIDING
CARE  FOR THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY,
OR
  (E) LIVES WITH OR PROVIDES SOME COMPONENT OF HOME CARE SERVICES  ON  A
CONTINUING  BASIS  TO THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A
DISABILITY AND INCLUDES A NEIGHBOR OR FRIEND WHO DOES NOT  PROVIDE  SUCH
SERVICES  BUT  HAS ACCESS TO THE VULNERABLE ELDERLY PERSON OR THE PERSON
WITH A DISABILITY BASED ON SUCH RELATIONSHIP.
  9. "PROPERTY" MEANS ANY MONEY, PERSONAL PROPERTY, REAL PROPERTY, THING
IN  ACTION,  COMPUTER  DATA,  COMPUTER  PROGRAM,  EVIDENCE  OF  DEBT  OR
CONTRACT, OR ANY ARTICLE, SUBSTANCE OR THING OF VALUE.
  10.  "VALUE  OF  PROPERTY"  SHALL  HAVE  THE SAME MEANING AND SHALL BE
ASCERTAINED IN ACCORDANCE WITH SECTION 155.20 OF THIS CHAPTER.
S 262.05 FINANCIAL EXPLOITATION OF A  VULNERABLE  ELDERLY  PERSON  OR  A
           PERSON WITH A DISABILITY IN THE FOURTH DEGREE.

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  A  PERSON  IS GUILTY OF FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY
PERSON OR PERSON WITH A DISABILITY IN THE FOURTH DEGREE WHEN HE  OR  SHE
STANDS  IN A POSITION OF TRUST OR CONFIDENCE WITH THE VULNERABLE ELDERLY
PERSON OR THE PERSON WITH A DISABILITY AND HE OR SHE  KNOWINGLY  AND  BY
DECEPTION  OR  INTIMIDATION  OBTAINS  CONTROL  OVER  THE PROPERTY OF THE
VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY,  WITH  INTENT
TO  WRONGFULLY  DEPRIVE  THAT  PERSON  OF THE TITLE TO, USE, BENEFIT, OR
POSSESSION OF SUCH PROPERTY.
  FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH
A DISABILITY IN THE FOURTH DEGREE IS A CLASS A MISDEMEANOR.
S 262.10 FINANCIAL EXPLOITATION OF A  VULNERABLE  ELDERLY  PERSON  OR  A
           PERSON WITH A DISABILITY IN THE THIRD DEGREE.
  A  PERSON  IS GUILTY OF FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY
PERSON OR A PERSON WITH A DISABILITY IN THE THIRD DEGREE WHEN HE OR  SHE
STANDS  IN A POSITION OF TRUST OR CONFIDENCE WITH THE VULNERABLE ELDERLY
PERSON OR THE PERSON WITH A DISABILITY AND HE OR SHE  KNOWINGLY  AND  BY
DECEPTION  OR  INTIMIDATION  OBTAINS  CONTROL  OVER  THE PROPERTY OF THE
VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY,  WITH  INTENT
TO  WRONGFULLY  DEPRIVE  THAT  PERSON  OF THE TITLE TO, USE, BENEFIT, OR
POSSESSION OF SUCH PROPERTY, AND THE VALUE OF THE PROPERTY  EXCEEDS  ONE
THOUSAND DOLLARS.
  FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH
A DISABILITY IN THE THIRD DEGREE IS A CLASS E FELONY.
S  262.15  FINANCIAL  EXPLOITATION  OF  A VULNERABLE ELDERLY PERSON OR A
           PERSON WITH A DISABILITY IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF FINANCIAL EXPLOITATION OF A  VULNERABLE  ELDERLY
PERSON OR A PERSON WITH A DISABILITY IN THE SECOND DEGREE WHEN HE OR SHE
STANDS  IN A POSITION OF TRUST OR CONFIDENCE WITH THE VULNERABLE ELDERLY
PERSON OR THE PERSON WITH A DISABILITY AND HE OR SHE  KNOWINGLY  AND  BY
DECEPTION  OR  INTIMIDATION  OBTAINS  CONTROL  OVER  THE PROPERTY OF THE
VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY,  WITH  INTENT
TO  WRONGFULLY  DEPRIVE  THAT  PERSON  OF THE TITLE TO, USE, BENEFIT, OR
POSSESSION OF SUCH PROPERTY, AND THE VALUE OF THE PROPERTY EXCEEDS THREE
THOUSAND DOLLARS.
  FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH
A DISABILITY IN THE SECOND DEGREE IS A CLASS D FELONY.
S 262.20 FINANCIAL EXPLOITATION OF A  VULNERABLE  ELDERLY  PERSON  OR  A
           PERSON WITH A DISABILITY IN THE FIRST DEGREE.
  A  PERSON  IS GUILTY OF FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY
PERSON OR A PERSON WITH A DISABILITY IN THE FIRST DEGREE WHEN HE OR  SHE
STANDS  IN A POSITION OF TRUST OR CONFIDENCE WITH THE VULNERABLE ELDERLY
PERSON OR THE PERSON WITH A DISABILITY AND HE OR SHE  KNOWINGLY  AND  BY
DECEPTION  OR  INTIMIDATION  OBTAINS  CONTROL  OVER  THE PROPERTY OF THE
VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY,  WITH  INTENT
TO  WRONGFULLY  DEPRIVE  THAT  PERSON  OF THE TITLE TO, USE, BENEFIT, OR
POSSESSION OF SUCH PROPERTY, AND THE VALUE OF THE PROPERTY EXCEEDS FIFTY
THOUSAND DOLLARS.
  FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH
A DISABILITY IN THE FIRST DEGREE IS A CLASS C FELONY.
S 262.30 FINANCIAL EXPLOITATION; NO DEFENSE.
  IT SHALL BE NO DEFENSE TO ANY PROSECUTION FOR  FINANCIAL  EXPLOITATION
THAT THE DEFENDANT DID NOT KNOW THE FACTS AND CONDITIONS RESPONSIBLE FOR
MAKING  THE  VICTIM A VULNERABLE ELDERLY PERSON OR A PERSON WITH A DISA-
BILITY.
S 262.35 FINANCIAL EXPLOITATION; DEFENSE.

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  NO PROVISION OF THIS  ARTICLE  SHALL  BE  DEEMED  TO  IMPOSE  CRIMINAL
LIABILITY  UPON ANY PERSON WHO IN GOOD FAITH SEEKS TO ASSIST THE VULNER-
ABLE ELDERLY PERSON OR PERSON WITH A DISABILITY IN THE MANAGEMENT OF HIS
OR HER PROPERTY, BUT THROUGH NO FAULT OF SUCH PERSON IS UNABLE TO ASSIST
THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY.
  S  2.  The  general obligations law is amended by adding a new section
11-108 to read as follows:
  S 11-108. CIVIL LIABILITY FOR FINANCIAL EXPLOITATION OF  A  VULNERABLE
ELDERLY  PERSON OR A PERSON WITH A DISABILITY. 1. A PERSON CHARGED BY AN
"ACCUSATORY INSTRUMENT", AS DEFINED IN SUBDIVISION ONE OF  SECTION  1.20
OF  THE  CRIMINAL PROCEDURE LAW, WITH THE OFFENSE OF FINANCIAL EXPLOITA-
TION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH A DISABILITY AS SET
OUT IN ARTICLE TWO HUNDRED SIXTY-TWO OF THE PENAL LAW, AND WHO FAILS  OR
REFUSES  TO  RETURN  THE  VICTIM'S  PROPERTY WITHIN SIXTY DAYS FOLLOWING
RECEIPT OF A WRITTEN DEMAND FROM THE VICTIM OR THE VICTIM'S LEGAL REPRE-
SENTATIVE SHALL, UPON A FINDING THAT SUCH PERSON UNLAWFULLY OBTAINED THE
VICTIM'S PROPERTY, BE LIABLE TO THE VICTIM  OR  TO  THE  ESTATE  OF  THE
VICTIM  IN  DAMAGES  OF  TREBLE  THE AMOUNT OF THE VALUE OF THE PROPERTY
WRONGFULLY OBTAINED, PLUS REASONABLE ATTORNEY FEES AND COURT COSTS.
  2. THE BURDEN OF PROOF THAT  THE  DEFENDANT  UNLAWFULLY  OBTAINED  THE
VICTIM'S PROPERTY SHALL BE BY A PREPONDERANCE OF THE EVIDENCE.
  3.  THIS  SECTION  SHALL BE OPERATIVE WHETHER OR NOT THE DEFENDANT HAS
BEEN CONVICTED OF THE OFFENSE.
  4. THIS SECTION SHALL BE OPERATIVE IN ADDITION TO ANY OTHER  RIGHT  OF
ACTION  OR  RECOVERY  OTHERWISE AVAILABLE UNDER LAW TO THE VICTIM OR THE
VICTIM'S ESTATE.
  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.