Senate Bill S3185

2011-2012 Legislative Session

Provides for the imposition of mandatory fine upon certain public officials convicted of a designated felony offense related to his or her official duties

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 12, 2012	print number 3185b
Jan 12, 2012	amend (t) and recommit to codes committee discharged and committed to codes
Jan 04, 2012	referred to civil service and pensions
Apr 06, 2011	print number 3185a
Apr 06, 2011	amend and recommit to civil service and pensions
Feb 11, 2011	referred to civil service and pensions

Bill Amendments

Original

B (Active)

2011-S3185 - Details

Current Committee:: Senate Codes
Law Section:: Retirement and Social Security Law
Laws Affected:: Amd §§80.00 & 195.00, add §§195.01 & 195.02, Art 196 §196.00, Pen L; amd §200.50, CP L
Versions Introduced in 2013-2014 Legislative Session:: S4044

2011-S3185 - Summary

Provides for the imposition of a mandatory fine upon certain public officials convicted of a designated felony offense related to his or her official duties.

2011-S3185 - Sponsor Memo

                                BILL NUMBER:S3185

TITLE OF BILL:
An act
to amend the retirement and social security law, in relation to
the forfeiture of
the pensions of certain public officers upon conviction of a felony
related to public
employment; to amend the penal law, in relation to the imposition of a
mandatory fine
upon certain public officers convicted of a designated felony offense
related to his or her
official duties; and to amend the penal law and the criminal procedure
law, in relation to
the crime of official misconduct and to abuse of public trust crimes

PURPOSE:
Provides for the forfeiture of the pension
of a public officer who is a member or retired
member of the New York State and
Local Employees' Retirement System or the New York State and Local
Police and Fire Retirement System and is convicted of a felony
related to the performance or failure to perform such member's or
retired member's official duties and responsibilities as a public
officer.
Additionally, this bill strengthens the penalties received by any

public servant who commits a crime in abuse of the public trust by
using his or her office to commit, facilitate or conceal criminal acts.

SUMMARY OF PROVISIONS:
Section 1 of this bill adds a new Article 3-B
to the Retirement and Social Security Law to establish the
procedures and guidelines for forfeiture of retirement benefits for
public officers convicted of a designated felony offense who are
either members or retired members of the New York State and Local
Employees' Retirement System or the New York State and Local Police
and Fire Retirement System.

Section 2 of this bill amends Subdivision 1 of Section 80.00 of the
Penal Law to mandate that a fine be imposed, in addition to any other
sanction, in an amount based upon the gain received or imparted by a
public servant who abuses the public trust.

Section 3 of this bill amends Section 195.00 of the Penal Law to
rename the current crime of "Official Misconduct" as "Official
Misconduct in the Third Degree".
Additionally, a person who is convicted of violating this Section will
now be guilty of a Class E Felony rather than a Class A Misdemeanor.

Section 4 of this bill adds two new Sections 195.01 and 195.02 to the
Penal Law:

Section 195.01 of the Penal Law is the newly created Class D Felony of
"Official Misconduct in the Second Degree". A public servant is
guilty of Official Misconduct in the Second Degree when he or she
commits the crime of Official Misconduct in the Third Degree and he


or she obtains any benefit or deprives another person of a benefit
valued in excess of $1,000.

Section 195.02 of the Penal Law is the newly created Class C Felony of
"Official Misconduct in the First Degree". A public servant is guilty
of Official Misconduct in the First Degree when he or she commits the
crime of Official Misconduct in the Third Degree and he or she
obtains any benefit or deprives another person of a benefit valued in
excess of $3,000.

Section 5 of this bill creates a new Article 196 of the Penal Law
titled "Abuse of Public Trust". Pursuant to this Article, if a person
commits an abuse of public trust crime when he or she commits a
felony offense and either intentionally uses his or her position as a
public servant in a manner that significantly facilitates the
commission or concealment of the offense; or attempts, conspires or
solicits another to commit any felony, and in such attempt,
conspiracy or solicitation intentionally uses his or her position as
a public servant to significantly facilitate the commission or
concealment of the offense then he or she faces a penalty enhancement
of one category higher than the specified offense that the defendant
committed for a Class C, D or E Felony or enhanced sentencing for a
defendant who is convicted of a Class A-1 or B Felony.

Sections 6 and 7 of this bill amend Subdivisions 4 and 7 of Section
200.50 of the Criminal Procedure Law with respect to the language that
must be included in an indictment charging a defendant with an abuse
of public trust crime.

Section 8 of this bill provides for an effective date of the one
hundred twentieth day after it shall have become a law.

PRIOR LEGISLATIVE HISTORY:
New Bill.

JUSTIFICATION:
When a public officer participates in criminal conduct
related to the performance of failure to perform such officer's
official duties and responsibilities, he or she is exploiting the
public's trust in government. A public officer who commits a
designated felony offense to his or her illegal advantage should not
be entitled to the benefits derived from their public office.

Consistent with the Comptroller's commitment to propose a
constitutionally viable pension forfeiture law; this bill provides a
mechanism for the forfeiture of a public officer's pension benefits
if such officer is convicted of a designated felony offense related
to the performance of or failure to perform his or her official
duties and . responsibilities as a public officer.

Additionally, this bill provides for enhanced criminal penalties for
any public servant who abuses his or her office by using such office
to commit, facilitate the commission or conceal the commission of a
crime thereby violating the fiduciary duty owed to the public and
inflicting immeasurable future harm by undermining the public's
confidence in government.


Therefore, the law must be strengthened to provide clear recognition
of the gravity of these criminal violations of the public trust and
the compelling importance of preventing their recurrence. With this
legislation, such goal is accomplished by increasing the criminal
penalties for not only official misconduct but for any crime
committed by a public servant who uses his or her official status to
further his or her personal interest at the expense of the public's
trust in the integrity of government.

The Comptroller urges passage of this legislation.

BUDGET IMPLICATIONS:
This bill has no significant fiscal impact.

EFFECTIVE DATE:
This bill would take effect on the one hundred
twentieth day after it shall have become a law.

2011-S3185 - Bill Text download pdf

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

                                  3185

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 11, 2011
                               ___________

Introduced  by  Sen.  GOLDEN -- (at request of the State Comptroller) --
  read twice and ordered printed, and when printed to  be  committed  to
  the Committee on Civil Service and Pensions

AN  ACT  to amend the retirement and social security law, in relation to
  the forfeiture  of  the  pensions  of  certain  public  officers  upon
  conviction  of  a  felony  related  to public employment; to amend the
  penal law, in relation to the imposition  of  a  mandatory  fine  upon
  certain  public  officers  convicted  of  a  designated felony offense
  related to his or her official duties; and to amend the penal law  and
  the  criminal  procedure  law,  in  relation  to the crime of official
  misconduct and to abuse of public trust crimes

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

  Section 1. The retirement and social security law is amended by adding
a new article 3-B to read as follows:
                               ARTICLE 3-B
               DISQUALIFICATION AND FORFEITURE OF BENEFITS
SECTION 156. DEFINITIONS.
        157. DISQUALIFICATION AND FORFEITURE OF BENEFITS.
        158. FORFEITURE PROCEEDING; COMMENCEMENT AND PROCEDURE.
        159. MISCELLANEOUS.
  S  156.  DEFINITIONS. THE FOLLOWING WORDS AND PHRASES, AS USED IN THIS
ARTICLE, SHALL HAVE THE FOLLOWING MEANINGS, UNLESS A  DIFFERENT  MEANING
IS PLAINLY REQUIRED BY THE CONTEXT:
  1.  (A)  "DESIGNATED  FELONY  OFFENSE" SHALL MEAN: (I) ANY FELONY, THE
COMMISSION OF WHICH IS RELATED TO THE PERFORMANCE OR FAILURE TO  PERFORM
SUCH  MEMBER'S  OR RETIRED MEMBER'S OFFICIAL DUTIES AND RESPONSIBILITIES
AS A PUBLIC OFFICER; (II) AN ATTEMPT,  CONSPIRACY,  OR  SOLICITATION  OF
ANOTHER  TO COMMIT ANY FELONY, THE COMMISSION OF WHICH IS RELATED TO THE
PERFORMANCE OR FAILURE TO PERFORM  SUCH  MEMBER'S  OR  RETIRED  MEMBER'S
OFFICIAL  DUTIES  AND RESPONSIBILITIES AS A PUBLIC OFFICER; OR (III) ANY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08618-03-1

S. 3185                             2

CRIMINAL OFFENSE COMMITTED IN VIOLATION OF FEDERAL LAW OR THE LAW OF ANY
OTHER STATE WHICH IF COMMITTED WITHIN THIS STATE,  WOULD  CONSTITUTE  AN
OFFENSE DESIGNATED IN SUBPARAGRAPH (I) OR (II) OF THIS PARAGRAPH.
  (B)  FOR  THE  PURPOSES OF PARAGRAPH (A) OF THIS SUBDIVISION, A DESIG-
NATED FELONY OFFENSE IS RELATED TO THE PERFORMANCE OR FAILURE TO PERFORM
SUCH MEMBER'S OR RETIRED MEMBER'S OFFICIAL DUTIES  AND  RESPONSIBILITIES
AS  A PUBLIC OFFICER IF IT: (I) CONSTITUTED A MATERIAL VIOLATION OF SUCH
MEMBER'S OR RETIRED MEMBER'S DUTIES AND RESPONSIBILITIES; OR  (II)  EVEN
THOUGH  COMMITTED OUTSIDE THE SCOPE OF SUCH MEMBER'S OR RETIRED MEMBER'S
OFFICIAL DUTIES OR RESPONSIBILITIES,  INVOLVED  ACTIONS  OR  CONDUCT  BY
WHICH SUCH MEMBER OR RETIRED MEMBER INDICATED OR CONVEYED THAT HE OR SHE
WAS  ACTING  WITH  THE AUTHORITY OF, OR UNDER COLOR OF THE AUTHORITY OF,
ANY GOVERNMENTAL ENTITY.
  2. "COMPTROLLER" SHALL MEAN THE COMPTROLLER OF THE STATE OF  NEW  YORK
IN HIS OR HER CAPACITY AS ADMINISTRATIVE HEAD OF THE RETIREMENT SYSTEM.
  3.  "PUBLIC  OFFICER"  SHALL  MEAN ANY STATEWIDE ELECTED OFFICIAL, ANY
PERSON APPOINTED BY SUCH OFFICIAL, ANY MEMBER OF THE STATE  LEGISLATURE,
ANY  PERSON APPOINTED BY SUCH MEMBER, ANY LOCAL ELECTED OFFICIAL AND ANY
PERSON APPOINTED BY SUCH OFFICIAL, ANY MEMBER OR DIRECTOR OF ANY  PUBLIC
AUTHORITY  OTHER  THAN  MULTI-STATE AUTHORITY, ANY PUBLIC BENEFIT CORPO-
RATION AND COMMISSION, ANY PERSON APPOINTED BY SUCH MEMBER OR  DIRECTOR,
ANY  EMPLOYEE WHO WAS EMPLOYED IN AN EXEMPT CLASS POSITION AS DEFINED IN
SECTION FORTY-ONE OF THE CIVIL SERVICE LAW AT THE TIME OF THE COMMISSION
OF A DESIGNATED FELONY OFFENSE AND ANY EMPLOYEE WHO WAS EMPLOYED IN  THE
NON-COMPETITIVE CLASS OF THE STATE OR MUNICIPAL CIVIL SERVICE IN A POSI-
TION  DESIGNATED  CONFIDENTIAL OR REQUIRING THE PERFORMANCE OF FUNCTIONS
INFLUENCING POLICY PURSUANT TO THE PROVISIONS OF  SUBDIVISION  TWO-A  OF
SECTION FORTY-TWO OF THE CIVIL SERVICE LAW AT THE TIME OF THE COMMISSION
OF A DESIGNATED FELONY OFFENSE.
  4."MEMBER" SHALL MEAN A PUBLIC OFFICER WHO FIRST JOINED THE RETIREMENT
SYSTEM ON OR AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
  5.  "RETIRED  MEMBER"  SHALL MEAN A PUBLIC OFFICER WHO IS RETIRED FROM
AND WHO IS RECEIVING OR ELIGIBLE TO RECEIVE A RETIREMENT ALLOWANCE  FROM
THE  RETIREMENT  SYSTEM AND WHO HAD FIRST JOINED SUCH SYSTEM ON OR AFTER
THE EFFECTIVE DATE OF THIS ARTICLE.
  6. "RETIREMENT SYSTEM" SHALL MEAN THE NEW YORK STATE AND LOCAL EMPLOY-
EES' RETIREMENT SYSTEM OR THE NEW YORK STATE AND LOCAL POLICE  AND  FIRE
RETIREMENT SYSTEM.
  S  157.  DISQUALIFICATION  AND FORFEITURE OF BENEFITS. NOTWITHSTANDING
ANY OTHER PROVISION OF GENERAL, SPECIAL OR LOCAL LAW, RULE OR REGULATION
TO THE CONTRARY, A MEMBER OR RETIRED  MEMBER  WHO  IS  CONVICTED  OF  OR
PLEADS  NOLO  CONTENDERE TO, ANY DESIGNATED FELONY OFFENSE SHALL FORFEIT
ALL OF THOSE RIGHTS AND BENEFITS TO WHICH SUCH  PERSON  IS  OR  WILL  BE
ENTITLED AS A MEMBER OR RETIRED MEMBER.
  S  158.  FORFEITURE  PROCEEDING;  COMMENCEMENT  AND  PROCEDURE. 1. ANY
PROCEEDING FOR THE FORFEITURE OF THOSE RIGHTS AND BENEFITS  TO  WHICH  A
PERSON  IS  OR  WILL  BE ENTITLED AS A MEMBER OR RETIRED MEMBER SHALL BE
COMMENCED PURSUANT TO AND IN ACCORDANCE WITH THE PROVISIONS  OF  ARTICLE
FOUR OF THE CIVIL PRACTICE LAW AND RULES BY THE DISTRICT ATTORNEY HAVING
JURISDICTION  OVER THE OFFENSE, OR BY THE ATTORNEY GENERAL IF THE ATTOR-
NEY GENERAL BROUGHT THE UNDERLYING CRIMINAL  CHARGE  OR  THE  UNDERLYING
CRIMINAL OFFENSE WAS COMMITTED IN VIOLATION OF FEDERAL LAW OR THE LAW OF
ANY  OTHER STATE.  SUCH PROCEEDING SHALL BE COMMENCED WITHIN ONE YEAR OF
SUCH CONVICTION.
  2. PRIOR TO THE COMMENCEMENT OF THE PROCEEDING DESCRIBED  IN  SUBDIVI-
SION ONE OF THIS SECTION, THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL,

S. 3185                             3

AS THE CASE MAY BE, SHALL PROVIDE NOTICE TO THE COMPTROLLER STATING THAT
HE  OR  SHE  HAS REASON TO BELIEVE THAT THE PERSON CONVICTED COMMITTED A
DESIGNATED FELONY OFFENSE. WITHIN TWENTY DAYS OF RECEIPT OF SUCH NOTICE,
THE  COMPTROLLER  SHALL SUBMIT A NOTICE OF APPLICABILITY TO THE DISTRICT
ATTORNEY OR THE ATTORNEY GENERAL AS THE  CASE  MAY  BE.  THE  NOTICE  OF
APPLICABILITY  SHALL  CONTAIN  A STATEMENT SPECIFYING WHETHER THE PERSON
CONVICTED IS OR HAS BEEN A MEMBER OR RETIRED MEMBER  OF  THE  RETIREMENT
SYSTEM  AND  SHALL DESCRIBE THE RIGHTS AND BENEFITS TO WHICH SUCH PERSON
IS OR WILL BE ENTITLED TO FROM SUCH  RETIREMENT  SYSTEM.  NO  FORFEITURE
PROCEEDING  MAY  BE  COMMENCED  BY THE DISTRICT ATTORNEY OR THE ATTORNEY
GENERAL UNTIL RECEIPT OF THE NOTICE OF APPLICABILITY  AS  SET  FORTH  IN
THIS SUBDIVISION.
  3.  UPON  COMMENCEMENT  OF  OR  AT  ANY  TIME DURING THE PENDENCY OF A
FORFEITURE PROCEEDING, PURSUANT TO THE PROCEDURE SET FORTH  IN  SUBDIVI-
SION  ONE  OF  SECTION  SIX THOUSAND THREE HUNDRED ELEVEN OR SECTION SIX
THOUSAND THREE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES, THE
COURT MAY ISSUE A TEMPORARY RESTRAINING ORDER OR A  PRELIMINARY  INJUNC-
TION  PROHIBITING THE MEMBER OR RETIRED MEMBER FROM RECEIVING ANY RIGHTS
OR BENEFITS FROM THE RETIREMENT SYSTEM. A PRELIMINARY INJUNCTION MAY  BE
GRANTED  WHERE  THE  COURT FINDS THAT THERE IS A SUBSTANTIAL PROBABILITY
THAT THE DISTRICT ATTORNEY OR ATTORNEY GENERAL WILL PREVAIL ON THE ISSUE
OF FORFEITURE. NO SHOWING OF IRREPARABLE HARM SHALL BE REQUIRED.
  4. THE BURDEN OF PROOF SHALL BE UPON  THE  DISTRICT  ATTORNEY  OR  THE
ATTORNEY GENERAL, AS THE CASE MAY BE, TO PROVE BY A PREPONDERANCE OF THE
EVIDENCE  THAT  THE  CRIME  FOR  WHICH  THE MEMBER OR RETIRED MEMBER WAS
CONVICTED WAS A DESIGNATED FELONY OFFENSE AS SUCH  TERM  IS  DEFINED  IN
SUBDIVISION ONE OF SECTION ONE HUNDRED FIFTY-SIX OF THIS ARTICLE.
  5.  THE  COURT  MAY ORDER THAT SOME OR ALL OF THE FORFEITED PENSION BE
PAID TO A LIEN HOLDER IF THE MEMBER OR RETIRED MEMBER HAS ANY  OUTSTAND-
ING  PRIOR  TAX LIENS.  THE COURT SHALL ISSUE A WRITTEN DECISION STATING
THE BASIS FOR AN ORDER ISSUED PURSUANT TO THIS SUBDIVISION.
  6. UPON A FINDING BY THE COURT THAT A MEMBER  OR  RETIRED  MEMBER  HAS
COMMITTED  A  DESIGNATED  FELONY OFFENSE, THE COURT SHALL ISSUE AN ORDER
FOR THE FORFEITURE OF THE MEMBER'S OR RETIRED MEMBER'S RIGHTS AND  BENE-
FITS  AS A MEMBER OR RETIRED MEMBER OF THE RETIREMENT SYSTEM AND FOR THE
RECOUPMENT OF THE RETIREMENT BENEFITS PAID  TO  THE  MEMBER  OR  RETIRED
MEMBER.  ALL  ORDERS  AND  FINDINGS  MADE  BY THE COURT PURSUANT TO THIS
SECTION SHALL BE SERVED UPON THE COMPTROLLER BY  THE  DISTRICT  ATTORNEY
HAVING  JURISDICTION OVER THE OFFENSE, OR BY THE ATTORNEY GENERAL IF THE
ATTORNEY GENERAL BROUGHT THE UNDERLYING CRIMINAL CHARGE.
  7. UPON A FINAL DETERMINATION THAT REVERSES OR VACATES THE  CONVICTION
OR  CONVICTIONS OF A DESIGNATED OFFENSE OR OFFENSES, OR IF THE MEMBER OR
RETIRED MEMBER IS SUBSEQUENTLY PARDONED BY THE GOVERNOR OR THE PRESIDENT
OF THE UNITED STATES, THE MEMBER OR RETIRED  MEMBER  WHO  HAS  FORFEITED
RETIREMENT   RIGHTS   AND  BENEFITS  PURSUANT  TO  SECTION  ONE  HUNDRED
FIFTY-SEVEN OF THIS ARTICLE SHALL HAVE SUCH RIGHTS AND BENEFITS RETROAC-
TIVELY RESTORED, PLUS INTEREST, IF ANY, UPON APPLICATION BY SUCH  MEMBER
OR  RETIRED  MEMBER  TO  THE COURT WITH JURISDICTION OVER THE FORFEITURE
PROCEEDING.
  S 159. MISCELLANEOUS. THE REMEDIES PROVIDED FOR IN  THIS  ARTICLE  ARE
NOT  INTENDED TO SUBSTITUTE FOR, LIMIT OR SUPERSEDE THE LAWFUL AUTHORITY
OF ANY PUBLIC OFFICER, AGENCY OR OTHER PERSON TO ENFORCE ANY OTHER RIGHT
OR REMEDY PROVIDED FOR BY LAW.
  S 2. Subdivision 1 of section 80.00 of the penal law,  as  amended  by
chapter 338 of the laws of 1989, is amended to read as follows:

S. 3185                             4

  1. A sentence to pay a fine for a felony shall be a sentence to pay an
amount, fixed by the court, not exceeding the higher of
  a. five thousand dollars; or
  b.  double  the  amount of the defendant's gain from the commission of
the crime; or
  c. if the conviction is for any felony defined in article two  hundred
twenty  or  two  hundred  twenty-one  of  this chapter, according to the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;
  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.
When imposing a fine pursuant to the provisions of this  paragraph,  the
court  shall  consider the profit gained by defendant's conduct, whether
the amount of the fine is  disproportionate  to  the  conduct  in  which
defendant  engaged,  its impact on any victims, and defendant's economic
circumstances, including the defendant's ability to pay, the  effect  of
the  fine  upon his or her immediate family or any other persons to whom
the defendant owes an obligation of support[.]; OR
  D. FOR AN ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN SECTION 196.00 OF
THIS CHAPTER, OR ANY OFFENSE FOR WHICH THE OFFENDER'S STATUS AS A PUBLIC
SERVANT CONSTITUTES AN ELEMENT OF THE OFFENSE AS ENUMERATED IN PARAGRAPH
(B) OF SUBDIVISION ONE OF SECTION 196.00 OF THIS CHAPTER, THE COURT,  IN
ADDITION  TO  ANY  OTHER  PENALTY  WHICH MAY BE IMPOSED PURSUANT TO LAW,
SHALL IMPOSE A FINE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH A  OR
B OF THIS SUBDIVISION, WHICHEVER IS GREATER.
  S 3. Section 195.00 of the penal law, as amended by chapter 906 of the
laws of 1990, is amended to read as follows:
S 195.00 Official misconduct IN THE THIRD DEGREE.
  A  public servant is guilty of official misconduct IN THE THIRD DEGREE
when, with intent to obtain a benefit or deprive  another  person  of  a
benefit:
  1.  He OR SHE commits an act relating to his OR HER office but consti-
tuting an unauthorized exercise of his OR HER official functions,  know-
ing that such act is unauthorized; or
  2.  He  OR  SHE  knowingly  refrains  from  performing a duty which is
imposed upon him OR HER by law or is clearly inherent in the  nature  of
his OR HER office.
  Official  misconduct  IN THE THIRD DEGREE is a class [A misdemeanor] E
FELONY.
  S 4. The penal law is amended by adding two new  sections  195.01  and
195.02 to read as follows:
S 195.01 OFFICIAL MISCONDUCT IN THE SECOND DEGREE.
  A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE SECOND DEGREE
WHEN  HE  OR  SHE  COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF ONE THOUSAND DOLLARS.
  OFFICIAL MISCONDUCT IN THE SECOND DEGREE IS A CLASS D FELONY.
S 195.02 OFFICIAL MISCONDUCT IN THE FIRST DEGREE.
  A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE FIRST  DEGREE
WHEN  HE  OR  SHE  COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF THREE THOUSAND DOLLARS.
  OFFICIAL MISCONDUCT IN THE FIRST DEGREE IS A CLASS C FELONY.
  S 5. The penal law is amended by adding a new article 196 to  read  as
follows:

S. 3185                             5

                               ARTICLE 196
                          ABUSE OF PUBLIC TRUST
SECTION 196.00 ABUSE OF PUBLIC TRUST CRIME.
S 196.00 ABUSE OF PUBLIC TRUST CRIME.
  1.  (A) A PERSON COMMITS AN ABUSE OF PUBLIC TRUST CRIME WHEN HE OR SHE
COMMITS A FELONY OFFENSE AND EITHER:
  (I) INTENTIONALLY USES HIS OR HER POSITION AS A PUBLIC  SERVANT  IN  A
MANNER  THAT  SIGNIFICANTLY FACILITATES THE COMMISSION OR CONCEALMENT OF
THE OFFENSE; OR
  (II) ATTEMPTS, CONSPIRES OR SOLICITS ANOTHER TO COMMIT ANY FELONY, AND
IN SUCH ATTEMPT, CONSPIRACY OR SOLICITATION INTENTIONALLY  USES  HIS  OR
HER POSITION AS A PUBLIC SERVANT TO SIGNIFICANTLY FACILITATE THE COMMIS-
SION OR CONCEALMENT OF THE OFFENSE.
  (B)  NOTWITHSTANDING  PARAGRAPH  (A)  OF THIS SUBDIVISION, AN ABUSE OF
PUBLIC  TRUST  CRIME  SHALL  NOT  INCLUDE  ANY  OFFENSE  FOR  WHICH  THE
OFFENDER'S  STATUS  AS  A  PUBLIC  SERVANT CONSTITUTES AN ELEMENT OF THE
OFFENSE, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING PROVISIONS OF THIS
CHAPTER: PARAGRAPH (G) OF SUBDIVISION  FOUR  OF  SECTION  135.35  (LABOR
TRAFFICKING);  SUBDIVISION  EIGHT  OF  SECTION  135.60  (COERCION IN THE
SECOND DEGREE); PARAGRAPH (C)  OF  SUBDIVISION  TWO  OF  SECTION  135.65
(COERCION  IN  THE  FIRST  DEGREE);  PARAGRAPH (C) OF SUBDIVISION TWO OF
SECTION 155.40 (GRAND LARCENY IN  THE  SECOND  DEGREE);  SECTION  175.40
(ISSUING  A  FALSE  CERTIFICATE); SECTION 195.00 (OFFICIAL MISCONDUCT IN
THE THIRD DEGREE); SECTION 195.01 (OFFICIAL  MISCONDUCT  IN  THE  SECOND
DEGREE);  SECTION  195.02  (OFFICIAL  MISCONDUCT  IN  THE FIRST DEGREE);
SECTION 200.10 (BRIBE RECEIVING IN THE  THIRD  DEGREE);  SECTION  200.11
(BRIBE  RECEIVING IN THE SECOND DEGREE); SECTION 200.12 (BRIBE RECEIVING
IN THE FIRST DEGREE); SECTION  200.25  (RECEIVING  REWARD  FOR  OFFICIAL
MISCONDUCT  IN  THE SECOND DEGREE); SECTION 200.27 (RECEIVING REWARD FOR
OFFICIAL MISCONDUCT IN THE  FIRST  DEGREE);  SECTION  200.35  (RECEIVING
UNLAWFUL   GRATUITIES);  SECTION  200.50  (BRIBE  RECEIVING  FOR  PUBLIC
OFFICE); PARAGRAPH (G) OF SUBDIVISION FIVE OF SECTION 230.34 (SEX  TRAF-
FICKING);  OR  ANY  ATTEMPT OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING
OFFENSES.
  2. WHEN A PERSON IS CONVICTED OF AN ABUSE OF TRUST CRIME  PURSUANT  TO
SUBDIVISION  ONE OF THIS SECTION AND THE SPECIFIED OFFENSE IS A CLASS C,
D OR E FELONY, THE CRIME SHALL BE DEEMED TO BE ONE CATEGORY HIGHER  THAN
THE  SPECIFIED  OFFENSE  THE DEFENDANT COMMITTED, OR ONE CATEGORY HIGHER
THAN THE OFFENSE LEVEL APPLICABLE TO THE DEFENDANT'S CONVICTION  FOR  AN
ATTEMPT OR CONSPIRACY TO COMMIT A SPECIFIED OFFENSE, WHICHEVER IS APPLI-
CABLE.
  3.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS B FELONY:
  (A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST  BE  AT  LEAST
SIX  YEARS  IF  THE  DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.00 OF
THIS CHAPTER;
  (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT  YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
  (C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
  (D)  THE  MAXIMUM  TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO  SECTION  70.05  OF
THIS CHAPTER; AND

S. 3185                             6

  (E)  THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
DETERMINATE SENTENCE MUST BE AT LEAST TEN  YEARS  IF  THE  DEFENDANT  IS
SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
  4.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS A-1 FELONY, THE MINIMUM PERIOD OF THE INDE-
TERMINATE SENTENCE SHALL BE NOT LESS THAN TWENTY YEARS.
  S 6. Subdivision 4 of section 200.50 of the criminal procedure law, as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
  4. A statement in each count that the grand jury, or, where the  accu-
satory  instrument  is a superior court information, the district attor-
ney, accuses the  defendant  or  defendants  of  a  designated  offense,
provided  that in any prosecution under article four hundred eighty-five
of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section  485.05  of  the  penal  law,
followed  by  the phrase "as a hate crime", and provided further that in
any prosecution under section 490.25 of the penal  law,  the  designated
offense  shall be the specified offense, as defined in subdivision three
of section 490.05 of the penal law, followed by the phrase "as  a  crime
of  terrorism";  and  provided  further  that  in  any prosecution under
section 130.91 of the penal law, the designated  offense  shall  be  the
specified  offense,  as  defined in subdivision two of section 130.91 of
the penal law, followed by the phrase "as a sexually motivated  felony";
AND  PROVIDED  FURTHER THAT IN ANY PROSECUTION UNDER ARTICLE ONE HUNDRED
NINETY-SIX OF THE PENAL LAW, THE DESIGNATED OFFENSE SHALL BE THE  DESIG-
NATED FELONY OFFENSE, AS DEFINED IN SUBDIVISION TWO OF SECTION 196.00 OF
THE  PENAL  LAW,  FOLLOWED  BY  THE  PHRASE "AS AN ABUSE OF PUBLIC TRUST
CRIME"; and
  S 7. Subdivision 7 of section 200.50 of the criminal procedure law  is
amended by adding a new paragraph (f) to read as follows:
  (F)  IN  THE  CASE  OF  AN  ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN
SECTION 196.00 OF THE PENAL LAW,  SPECIFIES,  AS  APPLICABLE,  THAT  THE
DEFENDANT  OR DEFENDANTS COMMITTED, OR ATTEMPTED, CONSPIRED OR SOLICITED
ANOTHER TO COMMIT, A FELONY AND INTENTIONALLY USED HIS OR  HER  POSITION
AS  A  PUBLIC  SERVANT  IN  A  MANNER THAT SIGNIFICANTLY FACILITATED THE
COMMISSION OR CONCEALMENT OF THE OFFENSE; AND
  S 8. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

co-Sponsors

2011-S3185A - Details

Current Committee:: Senate Codes
Law Section:: Retirement and Social Security Law
Laws Affected:: Amd §§80.00 & 195.00, add §§195.01 & 195.02, Art 196 §196.00, Pen L; amd §200.50, CP L
Versions Introduced in 2013-2014 Legislative Session:: S4044

2011-S3185A - Summary

Provides for the imposition of a mandatory fine upon certain public officials convicted of a designated felony offense related to his or her official duties.

2011-S3185A - Sponsor Memo

                                BILL NUMBER:S3185A

TITLE OF BILL:
An act
to amend the retirement and social security law, in relation to
the forfeiture of
the pensions of certain public officers upon conviction of a felony
related to public
employment; to amend the penal law, in relation to the imposition of a
mandatory fine
upon certain public officers convicted of a designated felony offense
related to his or her
official duties; and to amend the penal law and the criminal procedure
law, in relation to
the crime of official misconduct and to abuse of public trust crimes

PURPOSE:
Provides for the forfeiture of the pension of a public
officer who is a member or retired member of the New York State and
Local Employees' Retirement System or the New York State and Local
Police and Fire Retirement System and is convicted of a felony
related to the performance or failure to perform such member's or
retired member's official duties and responsibilities as a public
officer.
Additionally, this bill strengthens the penalties received by any
public servant who commits a crime in abuse of the public trust by

using his or her office to commit, facilitate or conceal criminal acts.

SUMMARY OF PROVISIONS:
Section 1 of this bill adds a new Article 3-B
to the Retirement and Social Security Law to establish the procedures
and guidelines for forfeiture of retirement benefits for public
officers convicted of a designated felony offense who are either
members or retired members of the New York State and Local Employees'
Retirement System or the New York State and Local Police and Fire
Retirement System.

Section 2 of this bill amends Subdivision 1 of Section 80.00 of the
Penal Law to mandate that a fine be imposed, in addition to any other
sanction, in an amount based upon the gain received or imparted by a
public servant who abuses the public trust.

Section 3 of this bill amends Section 195.00 of the Penal Law to rename
the current crime of "Official Misconduct" as "Official Misconduct in
the Third Degree".
Additionally, a person who is convicted of violating this Section will
now be guilty of a Class E Felony rather than a Class A Misdemeanor.

Section 4 of this bill adds two new Sections 195.01 and 195.02 to the
Penal Law:

Section 195.01 of the Penal Law is the newly created Class D Felony of
"Official Misconduct in the Second Degree". A public servant is
guilty of Official Misconduct in the Second Degree when he or she
commits the crime of Official Misconduct in the Third Degree and he
or she obtains any benefit or deprives another person of a benefit
valued in excess of $1,000.

Section 195.02 of the Penal Law is the newly created Class C Felony of
"Official Misconduct in the First Degree". A public servant is guilty
of Official Misconduct in the First Degree when he or she commits the
crime of Official Misconduct in the Third Degree and he or she
obtains any benefit or deprives another person of a benefit valued in
excess of $3,000.

Section 5 of this bill creates a new Article 196 of the Penal Law
titled "Abuse of Public Trust". pursuant to this Article, if a person
commits an abuse of public trust crime when he or she commits a
felony offense and either intentionally uses his or her position as a
public servant in a manner that significantly facilitates the
commission or concealment of the offense; or attempts, conspires or
solicits another to commit any felony, and in such attempt,
conspiracy or solicitation intentionally uses his or her position as
a public servant to significantly facilitate the commission or
concealment of the offense then he or she faces a penalty enhancement
of one category higher than the specified offense that the defendant
committed for a Class C, D or E Felony or enhanced sentencing for a
defendant who is convicted of a Class A-1 or B Felony.

Sections 6 and 7 of this bill amend Subdivisions 4 and 7 of Section
200.50 of the Criminal Procedure Law with respect to the language
that must be included in an indictment charging a defendant with an
abuse of public trust crime.

Section 8 of this bill provides for an effective date of the one
hundred twentieth day after it shall have become a law.

PRIOR LEGISLATIVE HISTORY:
New Bill.

JUSTIFICATION:
When a public officer participates in criminal conduct
related to the performance of failure to perform such officer's
official duties and responsibilities, he or she is exploiting the
public's trust in government. A public officer who commits a
designated felony offense to his or her illegal advantage should not
be entitled to the benefits derived from their public office.

Consistent with the Comptroller's commitment to propose a
constitutionally viable pension forfeiture law, this bill provides a
mechanism for the forfeiture of a public officer's pension benefits
if such officer is convicted of a designated felony offense related

to the performance of or failure to perform his or her official
duties and responsibilities as a public officer.

Additionally, this bill provides for enhanced criminal penalties for
any public servant who abuses his or her office by using such office
to commit, facilitate the commission or conceal the commission of a
crime thereby violating the fiduciary duty owed to the public and
inflicting immeasurable future harm by undermining the public's
confidence in government.

Therefore, the law must be strengthened to provide clear recognition
of the gravity of these criminal violations of the public trust and
the compelling importance of preventing their recurrence. With this
legislation, such goal is accomplished by increasing the criminal
penalties for not only official misconduct but for any crime
committed by a public servant who uses his or her official status to
further his or her personal interest at the expense of the public's
trust in the integrity of government.

The Comptroller urges passage of this legislation.

BUDGET IMPLICATIONS:
This bill has no significant fiscal impact.

EFFECTIVE DATE:
This bill would take effect on the one hundred
twentieth day after it shall have become a law.

2011-S3185A - Bill Text download pdf

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

                                 3185--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 11, 2011
                               ___________

Introduced  by  Sen.  GOLDEN -- (at request of the State Comptroller) --
  read twice and ordered printed, and when printed to  be  committed  to
  the  Committee  on Civil Service and Pensions -- committee discharged,
  bill amended, ordered reprinted as amended  and  recommitted  to  said
  committee

AN  ACT  to amend the retirement and social security law, in relation to
  the forfeiture  of  the  pensions  of  certain  public  officers  upon
  conviction  of  a  felony  related  to public employment; to amend the
  penal law, in relation to the imposition  of  a  mandatory  fine  upon
  certain  public  officers  convicted  of  a  designated felony offense
  related to his or her official duties; and to amend the penal law  and
  the  criminal  procedure  law,  in  relation  to the crime of official
  misconduct and to abuse of public trust crimes

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

  Section 1. The retirement and social security law is amended by adding
a new article 3-B to read as follows:
                               ARTICLE 3-B
               DISQUALIFICATION AND FORFEITURE OF BENEFITS
SECTION 156. DEFINITIONS.
        157. DISQUALIFICATION AND FORFEITURE OF BENEFITS.
        158. FORFEITURE PROCEEDING; COMMENCEMENT AND PROCEDURE.
        159. MISCELLANEOUS.
  S  156.  DEFINITIONS. THE FOLLOWING WORDS AND PHRASES, AS USED IN THIS
ARTICLE, SHALL HAVE THE FOLLOWING MEANINGS, UNLESS A  DIFFERENT  MEANING
IS PLAINLY REQUIRED BY THE CONTEXT:
  1.  (A)  "DESIGNATED  FELONY  OFFENSE" SHALL MEAN: (I) ANY FELONY, THE
COMMISSION OF WHICH IS RELATED TO THE PERFORMANCE OR FAILURE TO  PERFORM
SUCH  MEMBER'S  OR RETIRED MEMBER'S OFFICIAL DUTIES AND RESPONSIBILITIES
AS A PUBLIC OFFICER; (II) AN ATTEMPT,  CONSPIRACY,  OR  SOLICITATION  OF
ANOTHER  TO COMMIT ANY FELONY, THE COMMISSION OF WHICH IS RELATED TO THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08618-05-1

S. 3185--A                          2

PERFORMANCE OR FAILURE TO PERFORM  SUCH  MEMBER'S  OR  RETIRED  MEMBER'S
OFFICIAL  DUTIES  AND RESPONSIBILITIES AS A PUBLIC OFFICER; OR (III) ANY
CRIMINAL OFFENSE COMMITTED IN VIOLATION OF FEDERAL LAW OR THE LAW OF ANY
OTHER  STATE  WHICH  IF COMMITTED WITHIN THIS STATE, WOULD CONSTITUTE AN
OFFENSE DESIGNATED IN SUBPARAGRAPH (I) OR (II) OF THIS PARAGRAPH.
  (B) FOR THE PURPOSES OF PARAGRAPH (A) OF THIS  SUBDIVISION,  A  DESIG-
NATED FELONY OFFENSE IS RELATED TO THE PERFORMANCE OR FAILURE TO PERFORM
SUCH  MEMBER'S  OR RETIRED MEMBER'S OFFICIAL DUTIES AND RESPONSIBILITIES
AS A PUBLIC OFFICER IF IT: (I) CONSTITUTED A MATERIAL VIOLATION OF  SUCH
MEMBER'S  OR  RETIRED MEMBER'S DUTIES AND RESPONSIBILITIES; OR (II) EVEN
THOUGH COMMITTED OUTSIDE THE SCOPE OF SUCH MEMBER'S OR RETIRED  MEMBER'S
OFFICIAL  DUTIES  OR  RESPONSIBILITIES,  INVOLVED  ACTIONS OR CONDUCT BY
WHICH SUCH MEMBER OR RETIRED MEMBER INDICATED OR CONVEYED THAT HE OR SHE
WAS ACTING WITH THE AUTHORITY OF, OR UNDER COLOR OF  THE  AUTHORITY  OF,
ANY GOVERNMENTAL ENTITY.
  2.  "COMPTROLLER"  SHALL MEAN THE COMPTROLLER OF THE STATE OF NEW YORK
IN HIS OR HER CAPACITY AS ADMINISTRATIVE HEAD OF THE RETIREMENT SYSTEM.
  3. "PUBLIC OFFICER" SHALL MEAN (A) ANY STATEWIDE ELECTED OFFICIAL, (B)
ANY PERSON APPOINTED BY SUCH STATEWIDE ELECTED OFFICIAL WHO WAS EMPLOYED
IN A POSITION IN THE  UNCLASSIFIED  SERVICE  OF  THE  CIVIL  SERVICE  AS
DEFINED  IN  SECTION  THIRTY-FIVE OF THE CIVIL SERVICE LAW, OR AN EXEMPT
CLASS POSITION AS DEFINED IN SECTION FORTY-ONE OF THE CIVIL SERVICE  LAW
OR  A  NON-COMPETITIVE  POSITION  AS DEFINED IN SECTION FORTY-TWO OF THE
CIVIL SERVICE LAW AND DESIGNATED IN THE RULES OF THE STATE CIVIL SERVICE
COMMISSION AS REQUIRING THE PERFORMANCE OF FUNCTIONS INFLUENCING  POLICY
AT  THE  TIME  OF THE COMMISSION OF A DESIGNATED FELONY OFFENSE, (C) ANY
MEMBER OF THE STATE LEGISLATURE, (D) ANY PERSON APPOINTED BY SUCH MEMBER
OF THE STATE LEGISLATURE, (E) ANY LOCAL ELECTED OFFICIAL, (F) ANY PERSON
APPOINTED BY SUCH LOCAL ELECTED OFFICIAL WHO WAS EMPLOYED IN  AN  EXEMPT
CLASS  POSITION AS DEFINED IN SECTION FORTY-ONE OF THE CIVIL SERVICE LAW
OR A NON-COMPETITIVE POSITION AS DEFINED IN  SECTION  FORTY-TWO  OF  THE
CIVIL SERVICE LAW AND DESIGNATED IN THE RULES OF THE APPROPRIATE MUNICI-
PAL  CIVIL  SERVICE COMMISSION AS REQUIRING THE PERFORMANCE OF FUNCTIONS
INFLUENCING POLICY AT THE TIME OF THE COMMISSION OF A DESIGNATED  FELONY
OFFENSE,  (G)  ANY MEMBER OF THE GOVERNING BOARD OF ANY PUBLIC AUTHORITY
OTHER THAN A MULTI-STATE AUTHORITY, (H)  ANY  MEMBER  OF  THE  GOVERNING
BOARD  OF  ANY  PUBLIC  BENEFIT  CORPORATION  OR COMMISSION, AND (I) ANY
PERSON APPOINTED BY SUCH MEMBER OR DIRECTOR OF ANY PUBLIC  AUTHORITY  OR
PUBLIC  BENEFIT  CORPORATION OR COMMISSION WHO WAS EMPLOYED IN AN EXEMPT
CLASS POSITION AS DEFINED IN SECTION FORTY-ONE OF THE CIVIL SERVICE  LAW
OR  A  NON-COMPETITIVE  POSITION  AS DEFINED IN SECTION FORTY-TWO OF THE
CIVIL SERVICE LAW AND DESIGNATED IN THE RULES OF THE STATE CIVIL SERVICE
COMMISSION AS REQUIRING THE PERFORMANCE OF FUNCTIONS INFLUENCING  POLICY
AT THE TIME OF THE COMMISSION OF A DESIGNATED FELONY OFFENSE.
  4."MEMBER" SHALL MEAN A PUBLIC OFFICER WHO FIRST JOINED THE RETIREMENT
SYSTEM ON OR AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
  5.  "RETIRED  MEMBER"  SHALL MEAN A PUBLIC OFFICER WHO IS RETIRED FROM
AND WHO IS RECEIVING OR ELIGIBLE TO RECEIVE A RETIREMENT ALLOWANCE  FROM
THE  RETIREMENT  SYSTEM AND WHO HAD FIRST JOINED SUCH SYSTEM ON OR AFTER
THE EFFECTIVE DATE OF THIS ARTICLE.
  6. "RETIREMENT SYSTEM" SHALL MEAN THE NEW YORK STATE AND LOCAL EMPLOY-
EES' RETIREMENT SYSTEM OR THE NEW YORK STATE AND LOCAL POLICE  AND  FIRE
RETIREMENT SYSTEM.
  S  157.  DISQUALIFICATION  AND FORFEITURE OF BENEFITS. NOTWITHSTANDING
ANY OTHER PROVISION OF GENERAL, SPECIAL OR LOCAL LAW, RULE OR REGULATION
TO THE CONTRARY, A MEMBER OR RETIRED  MEMBER  WHO  IS  CONVICTED  OF  OR

S. 3185--A                          3

PLEADS  NOLO  CONTENDERE TO, ANY DESIGNATED FELONY OFFENSE SHALL FORFEIT
ALL OF THOSE RIGHTS AND BENEFITS TO WHICH SUCH  PERSON  IS  OR  WILL  BE
ENTITLED AS A MEMBER OR RETIRED MEMBER.
  S  158.  FORFEITURE  PROCEEDING;  COMMENCEMENT  AND  PROCEDURE. 1. ANY
PROCEEDING FOR THE FORFEITURE OF THOSE RIGHTS AND BENEFITS  TO  WHICH  A
PERSON  IS  OR  WILL  BE ENTITLED AS A MEMBER OR RETIRED MEMBER SHALL BE
COMMENCED PURSUANT TO AND IN ACCORDANCE WITH THE PROVISIONS  OF  ARTICLE
FOUR OF THE CIVIL PRACTICE LAW AND RULES BY THE DISTRICT ATTORNEY HAVING
JURISDICTION  OVER THE OFFENSE, OR BY THE ATTORNEY GENERAL IF THE ATTOR-
NEY GENERAL BROUGHT THE UNDERLYING CRIMINAL  CHARGE  OR  THE  UNDERLYING
CRIMINAL OFFENSE WAS COMMITTED IN VIOLATION OF FEDERAL LAW OR THE LAW OF
ANY  OTHER STATE.  SUCH PROCEEDING SHALL BE COMMENCED WITHIN ONE YEAR OF
SUCH CONVICTION.
  2. PRIOR TO THE COMMENCEMENT OF THE PROCEEDING DESCRIBED  IN  SUBDIVI-
SION ONE OF THIS SECTION, THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL,
AS THE CASE MAY BE, SHALL PROVIDE NOTICE TO THE COMPTROLLER STATING THAT
HE  OR  SHE  HAS REASON TO BELIEVE THAT THE PERSON CONVICTED COMMITTED A
DESIGNATED FELONY OFFENSE. WITHIN TWENTY DAYS OF RECEIPT OF SUCH NOTICE,
THE COMPTROLLER SHALL SUBMIT A NOTICE OF APPLICABILITY TO  THE  DISTRICT
ATTORNEY  OR  THE  ATTORNEY  GENERAL  AS  THE CASE MAY BE. THE NOTICE OF
APPLICABILITY SHALL CONTAIN A STATEMENT SPECIFYING  WHETHER  THE  PERSON
CONVICTED  IS  OR  HAS BEEN A MEMBER OR RETIRED MEMBER OF THE RETIREMENT
SYSTEM AND SHALL DESCRIBE THE RIGHTS AND BENEFITS TO WHICH  SUCH  PERSON
IS  OR  WILL  BE  ENTITLED TO FROM SUCH RETIREMENT SYSTEM. NO FORFEITURE
PROCEEDING MAY BE COMMENCED BY THE DISTRICT  ATTORNEY  OR  THE  ATTORNEY
GENERAL  UNTIL  RECEIPT  OF  THE NOTICE OF APPLICABILITY AS SET FORTH IN
THIS SUBDIVISION.
  3. UPON COMMENCEMENT OF OR AT  ANY  TIME  DURING  THE  PENDENCY  OF  A
FORFEITURE  PROCEEDING,  PURSUANT TO THE PROCEDURE SET FORTH IN SUBDIVI-
SION ONE OF SECTION SIX THOUSAND THREE HUNDRED  ELEVEN  OR  SECTION  SIX
THOUSAND THREE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES, THE
COURT  MAY  ISSUE A TEMPORARY RESTRAINING ORDER OR A PRELIMINARY INJUNC-
TION PROHIBITING THE MEMBER OR RETIRED MEMBER FROM RECEIVING ANY  RIGHTS
OR  BENEFITS FROM THE RETIREMENT SYSTEM. A PRELIMINARY INJUNCTION MAY BE
GRANTED WHERE THE COURT FINDS THAT THERE IS  A  SUBSTANTIAL  PROBABILITY
THAT THE DISTRICT ATTORNEY OR ATTORNEY GENERAL WILL PREVAIL ON THE ISSUE
OF FORFEITURE. NO SHOWING OF IRREPARABLE HARM SHALL BE REQUIRED.
  4.  THE  BURDEN  OF  PROOF  SHALL BE UPON THE DISTRICT ATTORNEY OR THE
ATTORNEY GENERAL, AS THE CASE MAY BE, TO PROVE BY A PREPONDERANCE OF THE
EVIDENCE THAT THE CRIME FOR WHICH  THE  MEMBER  OR  RETIRED  MEMBER  WAS
CONVICTED  WAS  A  DESIGNATED  FELONY OFFENSE AS SUCH TERM IS DEFINED IN
SUBDIVISION ONE OF SECTION ONE HUNDRED FIFTY-SIX OF THIS ARTICLE.
  5. THE COURT MAY ORDER THAT SOME OR ALL OF THE  FORFEITED  PENSION  BE
PAID  TO A LIEN HOLDER IF THE MEMBER OR RETIRED MEMBER HAS ANY OUTSTAND-
ING PRIOR TAX LIENS.  THE COURT SHALL ISSUE A WRITTEN  DECISION  STATING
THE BASIS FOR AN ORDER ISSUED PURSUANT TO THIS SUBDIVISION.
  6.  UPON  A  FINDING  BY THE COURT THAT A MEMBER OR RETIRED MEMBER HAS
COMMITTED A DESIGNATED FELONY OFFENSE, THE COURT SHALL  ISSUE  AN  ORDER
FOR  THE FORFEITURE OF THE MEMBER'S OR RETIRED MEMBER'S RIGHTS AND BENE-
FITS AS A MEMBER OR RETIRED MEMBER OF THE RETIREMENT SYSTEM AND FOR  THE
RECOUPMENT  OF  THE  RETIREMENT  BENEFITS  PAID TO THE MEMBER OR RETIRED
MEMBER. ALL ORDERS AND FINDINGS MADE  BY  THE  COURT  PURSUANT  TO  THIS
SECTION  SHALL  BE  SERVED UPON THE COMPTROLLER BY THE DISTRICT ATTORNEY
HAVING JURISDICTION OVER THE OFFENSE, OR BY THE ATTORNEY GENERAL IF  THE
ATTORNEY GENERAL BROUGHT THE UNDERLYING CRIMINAL CHARGE.

S. 3185--A                          4

  7.  UPON A FINAL DETERMINATION THAT REVERSES OR VACATES THE CONVICTION
OR CONVICTIONS OF A DESIGNATED OFFENSE OR OFFENSES, OR IF THE MEMBER  OR
RETIRED MEMBER IS SUBSEQUENTLY PARDONED BY THE GOVERNOR OR THE PRESIDENT
OF  THE  UNITED  STATES,  THE MEMBER OR RETIRED MEMBER WHO HAS FORFEITED
RETIREMENT   RIGHTS   AND  BENEFITS  PURSUANT  TO  SECTION  ONE  HUNDRED
FIFTY-SEVEN OF THIS ARTICLE SHALL HAVE SUCH RIGHTS AND BENEFITS RETROAC-
TIVELY RESTORED, PLUS INTEREST, IF ANY, UPON APPLICATION BY SUCH  MEMBER
OR  RETIRED  MEMBER  TO  THE COURT WITH JURISDICTION OVER THE FORFEITURE
PROCEEDING.
  S 159. MISCELLANEOUS. THE REMEDIES PROVIDED FOR IN  THIS  ARTICLE  ARE
NOT  INTENDED TO SUBSTITUTE FOR, LIMIT OR SUPERSEDE THE LAWFUL AUTHORITY
OF ANY PUBLIC OFFICER, AGENCY OR OTHER PERSON TO ENFORCE ANY OTHER RIGHT
OR REMEDY PROVIDED FOR BY LAW.
  S 2. Subdivision 1 of section 80.00 of the penal law,  as  amended  by
chapter 338 of the laws of 1989, is amended to read as follows:
  1. A sentence to pay a fine for a felony shall be a sentence to pay an
amount, fixed by the court, not exceeding the higher of
  a. five thousand dollars; or
  b.  double  the  amount of the defendant's gain from the commission of
the crime; or
  c. if the conviction is for any felony defined in article two  hundred
twenty  or  two  hundred  twenty-one  of  this chapter, according to the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;
  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.
When imposing a fine pursuant to the provisions of this  paragraph,  the
court  shall  consider the profit gained by defendant's conduct, whether
the amount of the fine is  disproportionate  to  the  conduct  in  which
defendant  engaged,  its impact on any victims, and defendant's economic
circumstances, including the defendant's ability to pay, the  effect  of
the  fine  upon his or her immediate family or any other persons to whom
the defendant owes an obligation of support[.]; OR
  D. FOR AN ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN SECTION 196.00 OF
THIS CHAPTER, OR ANY OFFENSE FOR WHICH THE OFFENDER'S STATUS AS A PUBLIC
SERVANT CONSTITUTES AN ELEMENT OF THE OFFENSE AS ENUMERATED IN PARAGRAPH
(B) OF SUBDIVISION ONE OF SECTION 196.00 OF THIS CHAPTER, THE COURT,  IN
ADDITION  TO  ANY  OTHER  PENALTY  WHICH MAY BE IMPOSED PURSUANT TO LAW,
SHALL IMPOSE A FINE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH A  OR
B OF THIS SUBDIVISION, WHICHEVER IS GREATER.
  S 3. Section 195.00 of the penal law, as amended by chapter 906 of the
laws of 1990, is amended to read as follows:
S 195.00 Official misconduct IN THE THIRD DEGREE.
  A  public servant is guilty of official misconduct IN THE THIRD DEGREE
when, with intent to obtain a benefit or deprive  another  person  of  a
benefit:
  1.  He OR SHE commits an act relating to his OR HER office but consti-
tuting an unauthorized exercise of his OR HER official functions,  know-
ing that such act is unauthorized; or
  2.  He  OR  SHE  knowingly  refrains  from  performing a duty which is
imposed upon him OR HER by law or is clearly inherent in the  nature  of
his OR HER office.
  Official  misconduct  IN THE THIRD DEGREE is a class [A misdemeanor] E
FELONY.

S. 3185--A                          5

  S 4. The penal law is amended by adding two new  sections  195.01  and
195.02 to read as follows:
S 195.01 OFFICIAL MISCONDUCT IN THE SECOND DEGREE.
  A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE SECOND DEGREE
WHEN  HE  OR  SHE  COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF ONE THOUSAND DOLLARS.
  OFFICIAL MISCONDUCT IN THE SECOND DEGREE IS A CLASS D FELONY.
S 195.02 OFFICIAL MISCONDUCT IN THE FIRST DEGREE.
  A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE FIRST  DEGREE
WHEN  HE  OR  SHE  COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF THREE THOUSAND DOLLARS.
  OFFICIAL MISCONDUCT IN THE FIRST DEGREE IS A CLASS C FELONY.
  S 5. The penal law is amended by adding a new article 196 to  read  as
follows:
                               ARTICLE 196
                          ABUSE OF PUBLIC TRUST
SECTION 196.00 ABUSE OF PUBLIC TRUST CRIME.
S 196.00 ABUSE OF PUBLIC TRUST CRIME.
  1.  (A) A PERSON COMMITS AN ABUSE OF PUBLIC TRUST CRIME WHEN HE OR SHE
COMMITS A FELONY OFFENSE AND EITHER:
  (I) INTENTIONALLY USES HIS OR HER POSITION AS A PUBLIC  SERVANT  IN  A
MANNER  THAT  SIGNIFICANTLY FACILITATES THE COMMISSION OR CONCEALMENT OF
THE OFFENSE; OR
  (II) ATTEMPTS, CONSPIRES OR SOLICITS ANOTHER TO COMMIT ANY FELONY, AND
IN SUCH ATTEMPT, CONSPIRACY OR SOLICITATION INTENTIONALLY  USES  HIS  OR
HER POSITION AS A PUBLIC SERVANT TO SIGNIFICANTLY FACILITATE THE COMMIS-
SION OR CONCEALMENT OF THE OFFENSE.
  (B)  NOTWITHSTANDING  PARAGRAPH  (A)  OF THIS SUBDIVISION, AN ABUSE OF
PUBLIC  TRUST  CRIME  SHALL  NOT  INCLUDE  ANY  OFFENSE  FOR  WHICH  THE
OFFENDER'S  STATUS  AS  A  PUBLIC  SERVANT CONSTITUTES AN ELEMENT OF THE
OFFENSE, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING PROVISIONS OF THIS
CHAPTER: PARAGRAPH (G) OF SUBDIVISION  FOUR  OF  SECTION  135.35  (LABOR
TRAFFICKING);  SUBDIVISION  EIGHT  OF  SECTION  135.60  (COERCION IN THE
SECOND DEGREE); PARAGRAPH (C)  OF  SUBDIVISION  TWO  OF  SECTION  135.65
(COERCION  IN  THE  FIRST  DEGREE);  PARAGRAPH (C) OF SUBDIVISION TWO OF
SECTION 155.40 (GRAND LARCENY IN  THE  SECOND  DEGREE);  SECTION  175.40
(ISSUING  A  FALSE  CERTIFICATE); SECTION 195.00 (OFFICIAL MISCONDUCT IN
THE THIRD DEGREE); SECTION 195.01 (OFFICIAL  MISCONDUCT  IN  THE  SECOND
DEGREE);  SECTION  195.02  (OFFICIAL  MISCONDUCT  IN  THE FIRST DEGREE);
SECTION 200.10 (BRIBE RECEIVING IN THE  THIRD  DEGREE);  SECTION  200.11
(BRIBE  RECEIVING IN THE SECOND DEGREE); SECTION 200.12 (BRIBE RECEIVING
IN THE FIRST DEGREE); SECTION  200.25  (RECEIVING  REWARD  FOR  OFFICIAL
MISCONDUCT  IN  THE SECOND DEGREE); SECTION 200.27 (RECEIVING REWARD FOR
OFFICIAL MISCONDUCT IN THE  FIRST  DEGREE);  SECTION  200.35  (RECEIVING
UNLAWFUL   GRATUITIES);  SECTION  200.50  (BRIBE  RECEIVING  FOR  PUBLIC
OFFICE); PARAGRAPH (G) OF SUBDIVISION FIVE OF SECTION 230.34 (SEX  TRAF-
FICKING);  OR  ANY  ATTEMPT OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING
OFFENSES.
  2. WHEN A PERSON IS CONVICTED OF AN ABUSE OF TRUST CRIME  PURSUANT  TO
SUBDIVISION  ONE OF THIS SECTION AND THE SPECIFIED OFFENSE IS A CLASS C,
D OR E FELONY, THE CRIME SHALL BE DEEMED TO BE ONE CATEGORY HIGHER  THAN
THE  SPECIFIED  OFFENSE  THE DEFENDANT COMMITTED, OR ONE CATEGORY HIGHER
THAN THE OFFENSE LEVEL APPLICABLE TO THE DEFENDANT'S CONVICTION  FOR  AN

S. 3185--A                          6

ATTEMPT OR CONSPIRACY TO COMMIT A SPECIFIED OFFENSE, WHICHEVER IS APPLI-
CABLE.
  3.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS B FELONY:
  (A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST  BE  AT  LEAST
SIX  YEARS  IF  THE  DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.00 OF
THIS CHAPTER;
  (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT  YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
  (C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
  (D)  THE  MAXIMUM  TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO  SECTION  70.05  OF
THIS CHAPTER; AND
  (E)  THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
DETERMINATE SENTENCE MUST BE AT LEAST TEN  YEARS  IF  THE  DEFENDANT  IS
SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
  4.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS A-1 FELONY, THE MINIMUM PERIOD OF THE INDE-
TERMINATE SENTENCE SHALL BE NOT LESS THAN TWENTY YEARS.
  S 6. Subdivision 4 of section 200.50 of the criminal procedure law, as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
  4. A statement in each count that the grand jury, or, where the  accu-
satory  instrument  is a superior court information, the district attor-
ney, accuses the  defendant  or  defendants  of  a  designated  offense,
provided  that in any prosecution under article four hundred eighty-five
of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section  485.05  of  the  penal  law,
followed  by  the phrase "as a hate crime", and provided further that in
any prosecution under section 490.25 of the penal  law,  the  designated
offense  shall be the specified offense, as defined in subdivision three
of section 490.05 of the penal law, followed by the phrase "as  a  crime
of  terrorism";  and  provided  further  that  in  any prosecution under
section 130.91 of the penal law, the designated  offense  shall  be  the
specified  offense,  as  defined in subdivision two of section 130.91 of
the penal law, followed by the phrase "as a sexually motivated  felony";
AND  PROVIDED  FURTHER THAT IN ANY PROSECUTION UNDER ARTICLE ONE HUNDRED
NINETY-SIX OF THE PENAL LAW, THE DESIGNATED OFFENSE SHALL BE THE  DESIG-
NATED FELONY OFFENSE, AS DEFINED IN SUBDIVISION TWO OF SECTION 196.00 OF
THE  PENAL  LAW,  FOLLOWED  BY  THE  PHRASE "AS AN ABUSE OF PUBLIC TRUST
CRIME"; and
  S 7. Subdivision 7 of section 200.50 of the criminal procedure law  is
amended by adding a new paragraph (f) to read as follows:
  (F)  IN  THE  CASE  OF  AN  ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN
SECTION 196.00 OF THE PENAL LAW,  SPECIFIES,  AS  APPLICABLE,  THAT  THE
DEFENDANT  OR DEFENDANTS COMMITTED, OR ATTEMPTED, CONSPIRED OR SOLICITED
ANOTHER TO COMMIT, A FELONY AND INTENTIONALLY USED HIS OR  HER  POSITION
AS  A  PUBLIC  SERVANT  IN  A  MANNER THAT SIGNIFICANTLY FACILITATED THE
COMMISSION OR CONCEALMENT OF THE OFFENSE; AND
  S 8. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

co-Sponsors

2011-S3185B (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Retirement and Social Security Law
Laws Affected:: Amd §§80.00 & 195.00, add §§195.01 & 195.02, Art 196 §196.00, Pen L; amd §200.50, CP L
Versions Introduced in 2013-2014 Legislative Session:: S4044

2011-S3185B (ACTIVE) - Summary

Provides for the imposition of a mandatory fine upon certain public officials convicted of a designated felony offense related to his or her official duties.

2011-S3185B (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S3185B

TITLE OF BILL:
An act
to amend the
penal law, in relation to the imposition of a
mandatory fine
upon certain public servants
convicted of a designated felony offense
related to his or her
official duties; and to amend the penal law and the criminal procedure
law, in relation to
the crime of official misconduct and to abuse of public trust crimes

PURPOSE:
This bill increases the penalties imposed on any public
servant who commits a crime in abuse of the public trust by using his
or her office to commit, facilitate or conceal criminal acts.

SUMMARY OF PROVISIONS:
Section 1 of this bill amends Subdivision 1 of
Section 80.00 of the Penal Law to mandate that, in addition to any
other sanction, a fine be imposed upon any public servant who abuses
the public trust, the amount of which is based upon the gain received
or imparted by the guilty public servant.

Section 2 of this bill amends Section 195.00 of the Penal Law to
rename and reclassify the current crime of "Official Misconduct" as
"Official Misconduct in the Third Degree." A person convicted of
violating this Section will now be guilty of a Class E Felony rather
than a Class A Misdemeanor.

Section 3 of this bill adds two new Sections, 195.01 and 195.02, to
the Penal Law:

Section 195.01 of the Penal Law establishes the crime of "Official
Misconduct in the Second Degree," a Class D Felony. A public servant
is guilty of Official Misconduct in the Second Degree when he or she
commits the crime of Official Misconduct in the Third Degree and he or
she obtains any benefit or deprives another person of a benefit
valued in excess of $1,000.

Section 195.02 of the Penal Law establishes the crime of "Official
Misconduct in the First Degree," a Class C Felony. A public servant
is guilty of Official Misconduct in the First Degree when he or she
commits the crime of Official Misconduct in the Third degree and
he or she obtains any benefit or deprives another person of a benefit
valued in excess of $3,000.

Section 4 of this bill creates a new Article 196 of the Penal Law,
titled "Abuse of Public Trust." Pursuant to this Article, if a public

servant commits a crime in abuse of public trust, by either
intentionally using his or her position as a public servant in a
manner that significantly facilitates the commission or concealment
of a felony offense, or by attempting, conspiring or soliciting
another to commit any felony, and in such attempt, conspiracy or
solicitation intentionally uses his or her position as a public
servant to significantly facilitate the commission or concealment of
the offense, then the public servant faces an enhanced punishment.
Specifically, the level of felony will be elevated one category
higher than normally associated with the specified offense the
defendant committed for a Class C, D or E Felony and a defendant who
is convicted of a Class A-1 or B Felony will face enhanced sentencing.

Sections 5 and 6 of this bill amend Subdivisions 4 and 7 of Section
200.50 of the Criminal Procedure Law with respect to the language
that must be included in an indictment charging a defendant with the
crime of abuse of public trust.

Section 7 of this bill provides for an effective date of the
one-hundred-twentieth day after it shall have become a law.

PRIOR LEGISLATIVE HISTORY:
New Bill.

JUSTIFICATION:
When public servants participate in criminal conduct
related to the performance of or the failure to perform their
official duties and responsibilities, they have exploited their
office, thereby diminishing the public's trust in government. Public
servants who commit a designated felony offense in order to secure
financial advantage for themselves or others should not be entitled
to the benefits derived from the abuse of public office and should
suffer a financial penalty.

This bill provides for enhanced criminal penalties for any public
servant who abuses his or her office by using such office to commit
or to facilitate the commission or concealment of a crime, and who
thereby violates the duty owed to the public and concomitantly
undermines the public's confidence in government.

Current law has proved to be woefully inadequate to deter and punish
those who misuse or abuse their public office for personal gain. The
law must be strengthened to reflect more clearly the gravity of these
criminal breaches of the public trust, to punish such actions and to
prevent their recurrence. With this legislation, these goals are
accomplished by increasing the criminal penalties not only for
official misconduct but for any crime committed by a public servant
who uses his or her official status to further his or her personal
interest at the expense of the public's trust in the integrity of
government.

The Comptroller urges passage of this legislation.

BUDGET IMPLICATIONS:
This bill has no significant fiscal impact.

EFFECTIVE DATE:
This bill would take effect on the
one-hundred-twentieth day after it shall have become a law.

2011-S3185B (ACTIVE) - Bill Text download pdf

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

                                 3185--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 11, 2011
                               ___________

Introduced  by  Sens.  GOLDEN,  GRIFFO,  BALL,  KENNEDY,  KRUEGER -- (at
  request of the State Comptroller) -- read twice and  ordered  printed,
  and when printed to be committed to the Committee on Civil Service and
  Pensions  --  committee discharged, bill amended, ordered reprinted as
  amended and recommitted  to  said  committee  --  recommitted  to  the
  Committee on Civil Service and Pensions in accordance with Senate Rule
  6,  sec.  8  --  committee  discharged  and said bill committed to the
  Committee on Codes --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the penal law, in relation to the imposition of a manda-
  tory fine upon certain public servants convicted of a designated felo-
  ny  offense  related  to  his or her official duties; and to amend the
  penal law and the criminal procedure law, in relation to the crime  of
  official misconduct and to abuse of public trust crimes

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

  Section 1.   Subdivision 1 of section  80.00  of  the  penal  law,  as
amended  by  chapter  338  of  the  laws  of 1989, is amended to read as
follows:
  1. A sentence to pay a fine for a felony shall be a sentence to pay an
amount, fixed by the court, not exceeding the higher of
  a. five thousand dollars; or
  b. double the amount of the defendant's gain from  the  commission  of
the crime; or
  c.  if the conviction is for any felony defined in article two hundred
twenty or two hundred twenty-one  of  this  chapter,  according  to  the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;
  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08618-06-2

S. 3185--B                          2

When  imposing  a fine pursuant to the provisions of this paragraph, the
court shall consider the profit gained by defendant's  conduct,  whether
the  amount  of  the  fine  is  disproportionate to the conduct in which
defendant engaged, its impact on any victims, and  defendant's  economic
circumstances,  including  the defendant's ability to pay, the effect of
the fine upon his or her immediate family or any other persons  to  whom
the defendant owes an obligation of support[.]; OR
  D. FOR AN ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN SECTION 196.00 OF
THIS CHAPTER, OR ANY OFFENSE FOR WHICH THE OFFENDER'S STATUS AS A PUBLIC
SERVANT CONSTITUTES AN ELEMENT OF THE OFFENSE AS ENUMERATED IN PARAGRAPH
(B)  OF SUBDIVISION ONE OF SECTION 196.00 OF THIS CHAPTER, THE COURT, IN
ADDITION TO ANY OTHER PENALTY WHICH MAY  BE  IMPOSED  PURSUANT  TO  LAW,
SHALL  IMPOSE A FINE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH A OR
B OF THIS SUBDIVISION, WHICHEVER IS GREATER.
  S 2. Section 195.00 of the penal law, as amended by chapter 906 of the
laws of 1990, is amended to read as follows:
S 195.00 Official misconduct IN THE THIRD DEGREE.
  A public servant is guilty of official misconduct IN THE THIRD  DEGREE
when,  with  intent  to  obtain a benefit or deprive another person of a
benefit:
  1. He OR SHE commits an act relating to his OR HER office but  consti-
tuting  an unauthorized exercise of his OR HER official functions, know-
ing that such act is unauthorized; or
  2. He OR SHE knowingly  refrains  from  performing  a  duty  which  is
imposed  upon  him OR HER by law or is clearly inherent in the nature of
his OR HER office.
  Official misconduct IN THE THIRD DEGREE is a class [A  misdemeanor]  E
FELONY.
  S  3.  The  penal law is amended by adding two new sections 195.01 and
195.02 to read as follows:
S 195.01 OFFICIAL MISCONDUCT IN THE SECOND DEGREE.
  A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE SECOND DEGREE
WHEN HE OR SHE COMMITS THE CRIME OF OFFICIAL  MISCONDUCT  IN  THE  THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF ONE THOUSAND DOLLARS.
  OFFICIAL MISCONDUCT IN THE SECOND DEGREE IS A CLASS D FELONY.
S 195.02 OFFICIAL MISCONDUCT IN THE FIRST DEGREE.
  A  PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE FIRST DEGREE
WHEN HE OR SHE COMMITS THE CRIME OF OFFICIAL  MISCONDUCT  IN  THE  THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF THREE THOUSAND DOLLARS.
  OFFICIAL MISCONDUCT IN THE FIRST DEGREE IS A CLASS C FELONY.
  S  4.  The penal law is amended by adding a new article 196 to read as
follows:
                               ARTICLE 196
                          ABUSE OF PUBLIC TRUST
SECTION 196.00 ABUSE OF PUBLIC TRUST CRIME.
S 196.00 ABUSE OF PUBLIC TRUST CRIME.
  1. (A) A PERSON COMMITS AN ABUSE OF PUBLIC TRUST CRIME WHEN HE OR  SHE
COMMITS A FELONY OFFENSE AND EITHER:
  (I)  INTENTIONALLY  USES  HIS OR HER POSITION AS A PUBLIC SERVANT IN A
MANNER THAT SIGNIFICANTLY FACILITATES THE COMMISSION OR  CONCEALMENT  OF
THE OFFENSE; OR
  (II) ATTEMPTS, CONSPIRES OR SOLICITS ANOTHER TO COMMIT ANY FELONY, AND
IN  SUCH  ATTEMPT,  CONSPIRACY OR SOLICITATION INTENTIONALLY USES HIS OR

S. 3185--B                          3

HER POSITION AS A PUBLIC SERVANT TO SIGNIFICANTLY FACILITATE THE COMMIS-
SION OR CONCEALMENT OF THE OFFENSE.
  (B)  NOTWITHSTANDING  PARAGRAPH  (A)  OF THIS SUBDIVISION, AN ABUSE OF
PUBLIC  TRUST  CRIME  SHALL  NOT  INCLUDE  ANY  OFFENSE  FOR  WHICH  THE
OFFENDER'S  STATUS  AS  A  PUBLIC  SERVANT CONSTITUTES AN ELEMENT OF THE
OFFENSE, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING PROVISIONS OF THIS
CHAPTER: PARAGRAPH (G) OF SUBDIVISION  FOUR  OF  SECTION  135.35  (LABOR
TRAFFICKING);  SUBDIVISION  EIGHT  OF  SECTION  135.60  (COERCION IN THE
SECOND DEGREE); PARAGRAPH (C)  OF  SUBDIVISION  TWO  OF  SECTION  135.65
(COERCION  IN  THE  FIRST  DEGREE);  PARAGRAPH (C) OF SUBDIVISION TWO OF
SECTION 155.40 (GRAND LARCENY IN  THE  SECOND  DEGREE);  SECTION  175.40
(ISSUING  A  FALSE  CERTIFICATE); SECTION 195.00 (OFFICIAL MISCONDUCT IN
THE THIRD DEGREE); SECTION 195.01 (OFFICIAL  MISCONDUCT  IN  THE  SECOND
DEGREE);  SECTION  195.02  (OFFICIAL  MISCONDUCT  IN  THE FIRST DEGREE);
SECTION 200.10 (BRIBE RECEIVING IN THE  THIRD  DEGREE);  SECTION  200.11
(BRIBE  RECEIVING IN THE SECOND DEGREE); SECTION 200.12 (BRIBE RECEIVING
IN THE FIRST DEGREE); SECTION  200.25  (RECEIVING  REWARD  FOR  OFFICIAL
MISCONDUCT  IN  THE SECOND DEGREE); SECTION 200.27 (RECEIVING REWARD FOR
OFFICIAL MISCONDUCT IN THE  FIRST  DEGREE);  SECTION  200.35  (RECEIVING
UNLAWFUL   GRATUITIES);  SECTION  200.50  (BRIBE  RECEIVING  FOR  PUBLIC
OFFICE); PARAGRAPH (G) OF SUBDIVISION FIVE OF SECTION 230.34 (SEX  TRAF-
FICKING);  OR  ANY  ATTEMPT OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING
OFFENSES.
  2. WHEN A PERSON IS CONVICTED OF AN ABUSE OF TRUST CRIME  PURSUANT  TO
SUBDIVISION  ONE OF THIS SECTION AND THE SPECIFIED OFFENSE IS A CLASS C,
D OR E FELONY, THE CRIME SHALL BE DEEMED TO BE ONE CATEGORY HIGHER  THAN
THE  SPECIFIED  OFFENSE  THE DEFENDANT COMMITTED, OR ONE CATEGORY HIGHER
THAN THE OFFENSE LEVEL APPLICABLE TO THE DEFENDANT'S CONVICTION  FOR  AN
ATTEMPT OR CONSPIRACY TO COMMIT A SPECIFIED OFFENSE, WHICHEVER IS APPLI-
CABLE.
  3.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS B FELONY:
  (A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST  BE  AT  LEAST
SIX  YEARS  IF  THE  DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.00 OF
THIS CHAPTER;
  (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT  YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
  (C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
  (D)  THE  MAXIMUM  TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO  SECTION  70.05  OF
THIS CHAPTER; AND
  (E)  THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
DETERMINATE SENTENCE MUST BE AT LEAST TEN  YEARS  IF  THE  DEFENDANT  IS
SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
  4.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF  LAW,  WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS A-1 FELONY, THE MINIMUM PERIOD OF THE INDE-
TERMINATE SENTENCE SHALL BE NOT LESS THAN TWENTY YEARS.
  S 5. Subdivision 4 of section 200.50 of the criminal procedure law, as
amended by chapter 7 of the laws of 2007, is amended to read as follows:
  4. A statement in each count that the grand jury, or, where the  accu-
satory  instrument  is a superior court information, the district attor-
ney, accuses the  defendant  or  defendants  of  a  designated  offense,
provided  that in any prosecution under article four hundred eighty-five

S. 3185--B                          4

of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section  485.05  of  the  penal  law,
followed  by  the phrase "as a hate crime", and provided further that in
any  prosecution  under  section 490.25 of the penal law, the designated
offense shall be the specified offense, as defined in subdivision  three
of  section  490.05 of the penal law, followed by the phrase "as a crime
of terrorism"; and  provided  further  that  in  any  prosecution  under
section  130.91  of  the  penal law, the designated offense shall be the
specified offense, as defined in subdivision two of  section  130.91  of
the  penal law, followed by the phrase "as a sexually motivated felony";
AND PROVIDED FURTHER THAT IN ANY PROSECUTION UNDER ARTICLE  ONE  HUNDRED
NINETY-SIX  OF THE PENAL LAW, THE DESIGNATED OFFENSE SHALL BE THE DESIG-
NATED FELONY OFFENSE, AS DEFINED IN SUBDIVISION TWO OF SECTION 196.00 OF
THE PENAL LAW, FOLLOWED BY THE PHRASE  "AS  AN  ABUSE  OF  PUBLIC  TRUST
CRIME"; and
  S  6. Subdivision 7 of section 200.50 of the criminal procedure law is
amended by adding a new paragraph (f) to read as follows:
  (F) IN THE CASE OF AN ABUSE OF  PUBLIC  TRUST  CRIME,  AS  DEFINED  IN
SECTION  196.00  OF  THE  PENAL  LAW, SPECIFIES, AS APPLICABLE, THAT THE
DEFENDANT OR DEFENDANTS COMMITTED, OR ATTEMPTED, CONSPIRED OR  SOLICITED
ANOTHER  TO  COMMIT, A FELONY AND INTENTIONALLY USED HIS OR HER POSITION
AS A PUBLIC SERVANT IN  A  MANNER  THAT  SIGNIFICANTLY  FACILITATED  THE
COMMISSION OR CONCEALMENT OF THE OFFENSE; AND
  S 7. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

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