Senate Bill S4059

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

                                 4059--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 16, 2011
                               ___________

Introduced  by  Sen. JOHNSON -- read twice and ordered printed, and when
  printed to be committed to the Committee  on  Consumer  Protection  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

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

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

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07252-03-1
              

S. 4059--A                          2

section,  "reasonable  grounds"  shall  include,  but not be limited to,
knowledge that a person (i)  has  concealed  possession  of  unpurchased
merchandise of a retail mercantile establishment, or (ii) has possession
of  an item designed for the purpose of overcoming detection of security
markings attachments placed on merchandise offered for sale at  such  an
establishment,  or (iii) has possession of a recording device in a thea-
ter in which a motion picture is being exhibited and a "reasonable time"
shall mean the PERIOD OF time [necessary to permit the  person  detained
to  make  a  statement  or  to  refuse to make a statement, and the time
necessary], NOT TO EXCEED ONE HOUR, to examine employees and records  of
the  mercantile  establishment relative to the ownership of the merchan-
dise, or possession of such an item or device.   UNDER NO  CIRCUMSTANCES
SHALL "REASONABLE TIME" INCLUDE, NOR SHALL THE RELEASE FROM DETENTION BY
A MERCANTILE ESTABLISHMENT BE CONDITIONED UPON, ANY REQUIREMENT THAT THE
PERSON  DETAINED  FOR  COMMISSION  OF A LARCENY, OR HIS OR HER PARENT OR
LEGAL GUARDIAN, ENTER INTO ANY AGREEMENT TO PAY, DIRECTLY OR THROUGH THE
EXTENSION OF CREDIT, THE CIVIL DAMAGES PROVIDED FOR IN SECTION 11-105 OF
THE GENERAL OBLIGATIONS LAW.  EVERY PERSON WHO IS DETAINED  PURSUANT  TO
THIS  SECTION,  AND WHO DURING SUCH DETENTION MAKES AN ORAL STATEMENT OR
SIGNS ANY STATEMENT OR DOCUMENT,  SHALL  UPON  HIS  OR  HER  RELEASE  BE
PROVIDED  WITH A WRITTEN TRANSCRIPT OF SUCH ORAL STATEMENT AND A COPY OF
ANY STATEMENT OR DOCUMENT SO SIGNED. Such  detention  at  such  vicinity
shall  not  authorize  the  taking of such person's fingerprints at such
vicinity unless the taking of fingerprints is  otherwise  authorized  by
section  160.10  of  the  criminal  procedure  law  and are taken by the
arresting or other appropriate police officer or agency described there-
in in accordance with section 140.20 or 140.27  of  such  law.  Whenever
fingerprints are taken, the requirements of article one hundred sixty of
the criminal procedure law shall apply as if fully set forth herein.
  S  2.  Subdivisions  5, 6 and 8 of section 11-105 of the general obli-
gations law, as added by chapter 724 of the laws of  1991,  are  amended
and two new subdivisions 2-a and 8-a are added to read as follows:
  2-A.  WHEN  USED  IN THIS SECTION, THE TERM "ACTUAL SALES PRICE" SHALL
MEAN THE PRICE OF THE MERCHANDISE OFFERED FOR SALE TO THE PUBLIC AT  THE
SPECIFIC  PLACE,  ON  THE  SPECIFIC  DAY AND AT THE SPECIFIC TIME OF THE
ALLEGED LARCENY.
  5. An adult or emancipated minor who commits larceny against the prop-
erty of a mercantile establishment shall be civilly liable to the opera-
tor of such establishment in an amount consisting of:
  (a) the [retail] ACTUAL SALE price of the merchandise IMPOSED FOR  THE
RETAIL  SALE  THEREOF AT THE TIME OF SUCH LARCENY if SUCH MERCHANDISE IS
not recovered in merchantable condition up to an amount  not  to  exceed
fifteen hundred dollars; plus
  (b)  a  penalty  not  to exceed the greater of [five] THREE times [the
retail] SUCH price of the merchandise or [seventy-five]  FIFTY  dollars;
provided,  however,  that  in  no  event  shall such penalty exceed five
hundred dollars.
  6. Parents or legal guardians  of  an  unemancipated  minor  shall  be
civilly  liable  for said minor who commits larceny against the property
of a mercantile establishment to the operator of such  establishment  in
an amount consisting of:
  (a)  the [retail] ACTUAL SALE price of the merchandise IMPOSED FOR THE
RETAIL SALE THEREOF AT THE TIME OF SUCH LARCENY if SUCH  MERCHANDISE  IS
not  recovered  in  merchantable condition up to an amount not to exceed
fifteen hundred dollars; plus

S. 4059--A                          3

  (b) a penalty not to exceed the greater  of  [five]  THREE  times  the
[retail]  ACTUAL  SALES price of the merchandise or [seventy-five] TWEN-
TY-FIVE dollars; provided, however, that in no event shall such  penalty
exceed five hundred dollars.
  8.  The  fact that an operator of a mercantile establishment may bring
an action against an individual as provided in this  section  shall  not
limit  the right of such merchant to [demand, orally or] ASK in writing,
that a person who is liable for damages and penalties under this section
remit the damages and penalties prior to the commencement of  any  legal
action.   PROVIDED, HOWEVER, UNDER NO CIRCUMSTANCES SHALL THE PROVISIONS
OF THIS SUBDIVISION BE DEEMED TO AUTHORIZE THE OPERATOR OF A  MERCANTILE
ESTABLISHMENT  TO  DETAIN ANY PERSON IN VIOLATION OF SECTION TWO HUNDRED
EIGHTEEN OF THE GENERAL BUSINESS LAW FOR THE PURPOSE OF  RECOVERING  THE
DAMAGES AND PENALTIES ESTABLISHED PURSUANT TO THIS SECTION. ANY OPERATOR
OF  A MERCANTILE ESTABLISHMENT WHO SO DETAINS ANY PERSON IN VIOLATION OF
SUCH SECTION OF THE GENERAL BUSINESS LAW SHALL FORFEIT HIS OR HER  RIGHT
TO  DAMAGES  AND  PENALTIES  PURSUANT  TO THIS SECTION, AND SHALL REMAIN
CIVILLY LIABLE TO THE PERSON DETAINED FOR FALSE ARREST, FALSE  IMPRISON-
MENT,  UNLAWFUL  DETENTION,  DEFAMATION  OF CHARACTER, ASSAULT, TRESPASS
AND/OR INVASION OF CIVIL RIGHTS.
  8-A. IN ANY ACTION BROUGHT PURSUANT TO SUBDIVISION FIVE OR SIX OF THIS
SECTION, THE COURT SHALL CONSIDER IN THE INTEREST OF JUSTICE, AS A MITI-
GATING CIRCUMSTANCE, ANY CREDIBLE EVIDENCE OFFERED BY THE  DEFENDANT  OF
MENTAL  DISEASE OR DEFECT, AS DEFINED IN SECTION 40.15 OF THE PENAL LAW,
SUFFERED BY SUCH DEFENDANT.
  S 3. This act shall take effect on the thirtieth day  after  it  shall
have  become a law, and shall apply to larcenies and attempted larcenies
committed on or after such effective date.

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

                                 4059--B

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 16, 2011
                               ___________

Introduced  by  Sen. JOHNSON -- read twice and ordered printed, and when
  printed to be committed to the Committee  on  Consumer  Protection  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee -- committee discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the general business law, in relation to requiring secu-
  rity  guards  in  mercantile  establishments  to  complete training on
  awareness and sensitivity to mental illness; and to amend the  general
  obligations  law,  in  relation  to  requiring a court to consider any
  mental disease or defect of the defendant in a civil  action  relating
  to a larceny in a mercantile establishment

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

  Section 1. Paragraph b of subdivision 1 of section 89-n of the general
business law, as amended by chapter 634 of the laws of 1994, is  amended
to read as follows:
  b. an on-the-job training course to be completed within ninety working
days  following employment, consisting of a minimum of sixteen hours and
a maximum of forty hours, as determined by the council, generally relat-
ing to the security guard's specific duties,  the  nature  of  the  work
place  and  the  requirements  of  the security guard company; PROVIDED,
HOWEVER, THAT IN A  MERCANTILE  ESTABLISHMENT,  AS  DEFINED  IN  SECTION
11-105  OF  THE  GENERAL  OBLIGATIONS  LAW,  SUCH COURSE SHALL CONTAIN A
COMPONENT ON AWARENESS AND SENSITIVITY TO MENTAL ILLNESS;
  S 2. Section 11-105 of the  general  obligations  law  is  amended  by
adding a new subdivision 8-a to read as follows:
  8-A. IN ANY ACTION BROUGHT PURSUANT TO SUBDIVISION FIVE OR SIX OF THIS
SECTION, THE COURT SHALL CONSIDER IN THE INTEREST OF JUSTICE, AS A MITI-
GATING  CIRCUMSTANCE,  ANY CREDIBLE EVIDENCE OFFERED BY THE DEFENDANT OF
MENTAL DISEASE OR DEFECT, AS DEFINED IN SECTION 40.15 OF THE PENAL  LAW,
SUFFERED BY SUCH DEFENDANT.
  S  3.  This  act shall take effect on the thirtieth day after it shall
have become a law.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD07252-04-1