senate Bill S162

2011-2012 Legislative Session

Establishes definitions with respect to larceny from mentally disabled or mentally incapacitated persons

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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 04, 2012 referred to codes
Jan 05, 2011 referred to codes

Co-Sponsors

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S162 - Bill Details

See Assembly Version of this Bill:
A642
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd ยงยง155.00, 155.05 & 155.15, Pen L
Versions Introduced in 2009-2010 Legislative Session:
S2150, A2585

S162 - Bill Texts

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Establishes definitions with respect to larceny from mentally disabled or mentally incapacitated persons; sets forth an affirmative defense if the defendant appropriated the property in the course of rendering assistance which benefitted such person in the management of his or her affairs and the value of such property was commensurate with the benefit conferred.

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BILL NUMBER:S162

TITLE OF BILL:
An act
to amend the penal law, in relation to creating definitions with respect
to larceny from a mentally disabled or mentally incapacitated person and
establishing an affirmative defense thereto

PURPOSE:
This bill amends the penal law to include the crime of financial
exploitation of the elderly by amending section 155.00 et
seq., (larceny). This legislation was recommended by the New York
State District Attorneys Association's Elder Abuse Committee.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends section 155.00 of the penal law by adding
new subdivisions 10 and 11 to define the terms "mentally disabled"
and "mentally incapacitated." Section 2 of the bill amends section
155.05(2)(a) of the penal law which defines a wrongful taking to
include thefts by defendants who know or have reason to know that the
victim suffers from a mental disability or incapacity. Section 3 of
the bill adds a new subdivision 3 to section 155.15 of the penal law
to create an affirmative defense applicable to cases in which the
defendant obtained property in the course of rendering assistance
which benefited the elderly owner, as long as the value of
appropriated property was commensurate with the benefit received.

JUSTIFICATION:
According to the National Center on Elder Abuse, between one and ten
percent of the elderly are abused each year. As Americans live longer
and the number of older adults grow, it unfortunately, can be
expected there will be an increasing number of older adults who will
be abused or exploited. A report by the National Conference of State
Legislatures predicts by the year 2050 as many as one in five
Americans could be 65 years of age or older. A 1996 U.S. Census
Bureau report entitled "65+ in the United States" indicated there is
presently a brief window of opportunity for state and local policy
makers to address the oncoming challenge of the oncoming age wave.
Unlike many states in this country, the New York State Penal Law does
not specifically address crimes involving older adults.

In order to address this problem, the New York State District
Attorneys Association's Elder Abuse Subcommittee researched and
recommended this bill be introduce in the Legislature. The amendments
proposed to the penal law will enable prosecutors to charge
exploiters who knowingly and wrongfully take, obtain or withhold
property from a mentally incapacitated owner. Currently, criminal
investigations of offenders who steal
from impaired seniors are often closed for many of the same reasons
domestic violence and child abuse cases do not result in successful
Prosecutions. Prosecutors are faced with vulnerable victims who are
fearful, isolated, confused and dependent on the caregiver. The
crimes are often committed at home or at the bank and usually do not
involve many witnesses. The victim's mental capacity may be
questionable. They may be baffled by their finances and have little
or no memory of whether they signed checks or documents or gave
permission or authority to transfer funds. Many of the victims suffer


from mental impairments such as Alzheimer's disease or senile
dementia, which make them unable to consent to the taking of
property. Moreover, even if available, the victim's cognitive
impairment may make them incompetent to testify in court. Therefore,
the very reasons why a victim may be attractive to an exploiter may
disqualify him or her as a competent witness.

District Attorney offices in New York City have experienced many cases
where seniors have been exploited by people they trust. For example,
a few years ago a woman in her thirties befriended an eighty year old
woman at a neighborhood coffee shop. They talked and the younger
woman agreed to meet the older woman at her residence. The younger
woman agreed to help the older woman clean her apartment and was soon
running errands for her, including visiting the local ATM with the
older woman's bankcard. Within a few months the older woman's account
was depleted. When the police questioned the young woman, she
admitted to using the ATM card, but insisted the older woman had
given her the money and several other large cash gifts. The older
woman seemed surprised the younger woman was holding her ATM card and
was confused about whether she had given the gifts or had made loans.
According to neighbors, the elderly woman's mental state had been
deteriorating for some time. Although the victim's mental state was
obvious to anyone who talked to her for any length of time, and was
confirmed by doctors, the case was not prosecuted because of a void
in the larceny statute.

PEOPLE V. CAMIOLA, 225 A.D. 2d 380 (1st Dept 1996) appeal denied 86
N.Y.2d 677, (1998), addresses the issue of whether a theft can be
established against a person who is mentally impaired. In that case,
there was "overwhelming evidence" the defendant, who prepared the
elderly and senile victim's tax returns, stole from her over a
two-year period. Id at 380. By the time of trial, the victim had
passed away and the defendant testified the stolen funds were a gift
from the victim. The trial court ruled that evidence relating to the
victim's state at the time of the transfer was relevant in
determining whether she had the capacity to consent to appropriation
of her funds. The first Department's opinion in Camiola affirmed that
a victim's mental capacity or lack thereof, while not specifically an
element of the larceny statute, should be assessed in determining
whether there was a wrongful taking of property.

This bill codifies
CAMIOLA and further clarifies that the wrongful
taking, obtaining or withholding of property from a victim who is
mentally disabled or mentally incapacitated is a criminal act. Under
this bill, the wrongful taking would only be a crime if the defendant
did so with the requisite mental intent currently defined in section
155.05(1) of the penal law. Moreover, concerned caregivers and family
members who took steps to manage their elderly relatives and
companions affairs could continue to act in good faith, knowing in
order to qualify as a crime, the taking of property must be wrongful
and would not
include conduct where the taker of the property was rendering
assistance which benefited the elderly owner. Accordingly, this bill
also amends section 155.15 which creates an affirmative defense
applicable to certain Prosecutions under section 155.05(2)(a) in
which the defendant obtained property in the course of rendering


assistance which benefited the impaired victim as long as the value
of the property taken was commensurate with the benefit conferred.

By correcting this void in the larceny statute, this bill will greatly
improve the ability of prosecutors to charge exploiters who prey on
impaired seniors and vulnerable individuals.

LEGISLATIVE HISTORY:
S.7079; A.10219 of 1998; Passed Senate
S.810 Passed Senate; in 1999 and 2000
S.3279/A.2851 of 2001/2002; Passed Senate in 2001 and 2002
S.506/A.2427 of 2003/2004; Passed Senate in 2003 and 2004
S.702/A.1797 of 2005/2006; Referred to Codes
S.951/A.306 of 2007/2009; Passed Senate/Died in Assembly
S.2150/A.2562 of 2009/2010; Referred to Codes

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: First of November next after it shall have become
law.

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

                                   162

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sens. MAZIARZ, ALESI, DeFRANCISCO, DIAZ, GOLDEN, GRIFFO,
  LANZA, RANZENHOFER, SALAND, SEWARD, SKELOS -- read twice  and  ordered
  printed, and when printed to be committed to the Committee on Codes

AN  ACT to amend the penal law, in relation to creating definitions with
  respect to larceny from a mentally disabled or mentally  incapacitated
  person and establishing an affirmative defense thereto

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

  Section 1. Section 155.00 of the penal law is amended  by  adding  two
new subdivisions 10 and 11 to read as follows:
  10.  "MENTALLY  DISABLED"  MEANS  THAT  A PERSON SUFFERS FROM A MENTAL
DISEASE, DEFECT OR CONDITION WHICH  RENDERS  HIM  OR  HER  INCAPABLE  OF
APPRAISING  WHETHER TO GIVE OR WITHHOLD CONSENT TO THE TAKING, OBTAINING
OR WITHHOLDING OF HIS OR HER PROPERTY.
  11. "MENTALLY INCAPACITATED" MEANS THAT A PERSON IS RENDERED INCAPABLE
OF APPRAISING WHETHER TO GIVE OR WITHHOLD CONSENT TO THE TAKING, OBTAIN-
ING OR WITHHOLDING OF HIS OR HER PROPERTY OWING TO THE  INFLUENCE  OF  A
CONTROLLED OR INTOXICATING SUBSTANCE.
  S 2. Paragraph (a) of subdivision 2 of section 155.05 of the penal law
is amended to read as follows:
  (a)  By  conduct  heretofore defined or known as common law larceny by
trespassory taking,  common  law  larceny  by  trick,  embezzlement,  or
obtaining  property by false pretenses, AND SUCH CONDUCT INCLUDES BUT IS
NOT LIMITED TO, THE WRONGFUL TAKING, OBTAINING OR WITHHOLDING OF PROPER-
TY BY A PERSON WHO KNOWS OR HAS REASON TO  KNOW  THAT  THE  OWNER  IS  A
MENTALLY DISABLED OR MENTALLY INCAPACITATED PERSON;
  S 3. Section 155.15 of the penal law is amended by adding a new subdi-
vision 3 to read as follows:
  3.  IN  ANY PROSECUTION FOR LARCENY COMMITTED BY TRESPASSORY TAKING OR
EMBEZZLEMENT FROM A MENTALLY DISABLED OR MENTALLY INCAPACITATED  PERSON,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01659-01-1

S. 162                              2

IT  IS AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT APPROPRIATED SUCH PROP-
ERTY IN THE COURSE OF RENDERING ASSISTANCE WHICH BENEFITTED SUCH  PERSON
IN  THE MANAGEMENT OF HIS OR HER AFFAIRS, AND THE VALUE OF SUCH PROPERTY
WAS COMMENSURATE WITH THE BENEFIT CONFERRED.
  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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