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

                                  10326

                          I N  A S S E M B L Y

                              May 22, 2012
                               ___________

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

AN  ACT to amend the general business law and the penal law, in relation
  to creating a crime of leading a retail theft enterprise

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

  Section 1. The general business law is amended by adding a new section
393-e to read as follows:
  S 393-E. LEADING AN ORGANIZED RETAIL THEFT ENTERPRISE.  1. A PERSON IS
GUILTY  OF  LEADING  AN  ORGANIZED  RETAIL THEFT ENTERPRISE IF HE OR SHE
CONSPIRES WITH OTHERS AS AN ORGANIZER, SUPERVISOR, FINANCIER OR MANAGER,
TO ENGAGE FOR PROFIT IN ORGANIZED RETAIL CRIME OR IN A SCHEME OR  COURSE
OF CONDUCT TO EFFECTUATE THE TRANSFER OR SALE OF SHOPLIFTED MERCHANDISE.
LEADING  AN ORGANIZED RETAIL THEFT ENTERPRISE CONSTITUTES LARCENY IN THE
SECOND DEGREE. NOTWITHSTANDING THE PROVISIONS OF SECTION  80.00  OF  THE
PENAL  LAW,  THE COURT MAY IMPOSE A FINE NOT TO EXCEED TWO HUNDRED FIFTY
THOUSAND DOLLARS OR FIVE TIMES  THE  RETAIL  VALUE  OF  THE  MERCHANDISE
SEIZED AT THE TIME OF THE ARREST, WHICHEVER IS GREATER.
  2. NOTWITHSTANDING THE PROVISIONS OF SECTION 70.35 OF THE PENAL LAW, A
CONVICTION  OF  LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE SHALL NOT
MERGE WITH THE CONVICTION FOR ANY OFFENSE WHICH IS  THE  OBJECT  OF  THE
CONSPIRACY.  NOTHING  CONTAINED IN THIS SECTION SHALL PROHIBIT THE COURT
FROM IMPOSING AN EXTENDED TERM PURSUANT TO ARTICLE SEVENTY OF THE  PENAL
LAW; NOR SHALL THIS SECTION BE CONSTRUED IN ANY WAY TO PRECLUDE OR LIMIT
THE PROSECUTION OR CONVICTION OF ANY PERSON FOR CONSPIRACY UNDER ARTICLE
ONE  HUNDRED FIVE OF THE PENAL LAW, OR ANY PROSECUTION OR CONVICTION FOR
ANY OTHER OFFENSE.
  3. IT SHALL NOT BE NECESSARY IN ANY PROSECUTION UNDER THIS SECTION FOR
THE STATE TO PROVE THAT ANY INTENDED PROFIT WAS ACTUALLY  REALIZED.  THE
TRIER  OF  FACT  MAY INFER THAT A PARTICULAR SCHEME OR COURSE OF CONDUCT
WAS UNDERTAKEN FOR PROFIT  FROM  ALL  OF  THE  ATTENDING  CIRCUMSTANCES,
INCLUDING  BUT  NOT  LIMITED  TO  THE  NUMBER OF PERSONS INVOLVED IN THE
SCHEME OR COURSE OF CONDUCT, THE  ACTOR'S  NET  WORTH  AND  HIS  OR  HER
EXPENDITURES IN RELATION TO HIS OR HER LEGITIMATE SOURCES OF INCOME, THE

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

                                                           LBD15086-05-2

A. 10326                            2

AMOUNT  OF  MERCHANDISE  INVOLVED,  OR  THE  AMOUNT  OF CASH OR CURRENCY
INVOLVED.
  4.  IT SHALL NOT BE A DEFENSE TO A PROSECUTION UNDER THIS SECTION THAT
ANY SHOPLIFTED MERCHANDISE WAS BROUGHT INTO OR TRANSPORTED IN THIS STATE
SOLELY FOR ULTIMATE DISTRIBUTION IN ANOTHER JURISDICTION; NOR  SHALL  IT
BE  A  DEFENSE THAT ANY PROFIT WAS INTENDED TO BE MADE IN ANOTHER JURIS-
DICTION.
  5. LEADING AN ORGANIZED RETAIL THEFT ENTERPRISE IS A CLASS C FELONY.
  S 2. The penal law is amended by adding a new section 155.50  to  read
as follows:
S 155.50 LEADING AN ORGANIZED RETAIL THEFT ENTERPRISE.
  1.  DEFINITIONS. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "ANTI-SHOPLIFTING  OR  INVENTORY  CONTROL  DEVICE  COUNTERMEASURE"
SHALL MEAN ANY ITEM OR DEVICE WHICH IS DESIGNED, MANUFACTURED, MODIFIED,
OR ALTERED TO DEFEAT ANY ANTI-SHOPLIFTING OR INVENTORY CONTROL DEVICE;
  (B)  "CONCEAL"  SHALL  MEAN  TO  HIDE,  COVER,  OR  OTHERWISE DISGUISE
MERCHANDISE SO THAT, ALTHOUGH THERE MAY BE SOME NOTICE OF ITS  PRESENCE,
IT IS NOT VISIBLE THROUGH ORDINARY OBSERVATION;
  (C) "FULL RETAIL VALUE" SHALL MEAN THE MERCHANT'S STATED OR ADVERTISED
PRICE OF THE MERCHANDISE;
  (D)  "MERCHANDISE" SHALL MEAN ANY GOODS, CHATTELS, FOODSTUFFS OR WARES
OF ANY TYPE AND DESCRIPTION, REGARDLESS OF THE VALUE THEREOF;
  (E) "MERCHANT" SHALL MEAN ANY OWNER OR OPERATOR OF ANY STORE OR  OTHER
RETAIL   MERCANTILE  ESTABLISHMENT,  OR  ANY  AGENT,  EMPLOYEE,  LESSEE,
CONSIGNEE, OFFICER, DIRECTOR, FRANCHISEE, OR INDEPENDENT  CONTRACTOR  OF
SUCH OWNER OR PROPRIETOR;
  (F)  "ORGANIZED  RETAIL  THEFT" SHALL MEAN (1) THE STEALING, EMBEZZLE-
MENT, OR OBTAINING BY FRAUD, FALSE PRETENSES, OR OTHER ILLEGAL MEANS, OF
RETAIL MERCHANDISE IN QUANTITIES THAT WOULD NOT  NORMALLY  BE  PURCHASED
FOR  PERSONAL  USE OR CONSUMPTION FOR THE PURPOSE OF RESELLING OR OTHER-
WISE REENTERING SUCH RETAIL MERCHANDISE IN COMMERCE, OR (2) THE RECRUIT-
MENT OF PERSONS TO UNDERTAKE,  OR  THE  COORDINATION,  ORGANIZATION,  OR
FACILITATION  OF,  SUCH  STEALING,  EMBEZZLEMENT, OR OBTAINING BY FRAUD,
FALSE PRETENSES, OR OTHER ILLEGAL MEANS;
  (G) "ORGANIZED RETAIL THEFT ENTERPRISE" SHALL MEAN ANY ASSOCIATION  OF
TWO  OR  MORE PERSONS WHO ENGAGE IN THE CONDUCT OF OR ARE ASSOCIATED FOR
THE PURPOSE OF EFFECTUATING ORGANIZED RETAIL THEFT OR ANY OTHER TRANSFER
OR SALE OF SHOPLIFTED MERCHANDISE;
  (H) "PERSON" SHALL MEAN ANY INDIVIDUAL OR  INDIVIDUALS,  INCLUDING  AN
AGENT,  OR  EMPLOYEE  OF  A MERCHANT WHERE THE FACTS OF THE SITUATION SO
REQUIRE;
  (I) "PREMISES OF A STORE OR  RETAIL  MERCANTILE  ESTABLISHMENT"  SHALL
MEAN  AND INCLUDE BUT BE NOT LIMITED TO THE RETAIL MERCANTILE ESTABLISH-
MENT, ANY COMMON-USE AREAS IN SHOPPING CENTERS AND ALL PARKING AREAS SET
ASIDE BY A MERCHANT OR ON BEHALF OF A MERCHANT FOR THE PARKING OF  VEHI-
CLES FOR THE CONVENIENCE OF THE PATRONS OF SUCH RETAIL MERCANTILE ESTAB-
LISHMENT;
  (J)  "SHOPLIFTING"  SHALL  MEAN  TO  (1) PURPOSELY TAKE POSSESSION OF,
CARRY  AWAY,  TRANSFER  OR  CAUSE  TO  BE  TRANSFERRED  ANY  MERCHANDISE
DISPLAYED,  HELD,  STORED,  OR  OFFERED  FOR  SALE BY ANY STORE OR OTHER
RETAIL MERCANTILE ESTABLISHMENT WITH  THE  INTENTION  OF  DEPRIVING  THE
MERCHANT  OF  THE  POSSESSION,  USE  OR  BENEFIT  OF SUCH MERCHANDISE OR
CONVERTING THE SAME TO THE USE OF SUCH  PERSON  WITHOUT  PAYING  TO  THE
MERCHANT  THE  VALUE  THEREOF;  (2) PURPOSELY TO CONCEAL UPON HIS OR HER
PERSON OR OTHERWISE ANY MERCHANDISE OFFERED FOR SALE  BY  ANY  STORE  OR

A. 10326                            3

OTHER  RETAIL  MERCANTILE  ESTABLISHMENT WITH THE INTENTION OF DEPRIVING
THE MERCHANT OF THE PROCESSES, USE OR BENEFIT  OF  SUCH  MERCHANDISE  OR
CONVERTING  THE  SAME  TO  THE  USE OF SUCH PERSON WITHOUT PAYING TO THE
MERCHANT  THE  FULL  RETAIL  VALUE  THEREOF;  (3) PURPOSELY AND WITH THE
INTENT TO DEFRAUD, TO ALTER, TRANSFER OR REMOVE ANY LABEL, PRICE TAG  OR
MARKING  INDICIA OF VALUE OR ANY OTHER MARKINGS WHICH AID IN DETERMINING
VALUE AFFIXED TO ANY MERCHANDISE DISPLAYED, HELD, STORED OR OFFERED  FOR
SALE  BY  ANY  STORE  OR  OTHER  RETAIL  MERCANTILE ESTABLISHMENT AND TO
ATTEMPT TO PURCHASE SUCH  MERCHANDISE  PERSONALLY  OR  IN  CONSORT  WITH
ANOTHER AT LESS THAN THE FULL RETAIL VALUE WITH THE INTENTION OF DEPRIV-
ING THE MERCHANT OF ALL OR SOME PART OF THE VALUE THEREOF; (4) PURPOSELY
TO  TRANSFER ANY MERCHANDISE DISPLAYED, HELD, STORED OR OFFERED FOR SALE
BY ANY STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT FROM THE CONTAINER
IN OR ON WHICH THE SAME SHALL BE DISPLAYED TO ANY OTHER  CONTAINER  WITH
INTENT  TO  DEPRIVE THE MERCHANT OF ALL OR SOME PART OF THE RETAIL VALUE
THEREOF; OR (5) PURPOSELY TO UNDER-RING WITH THE INTENTION OF  DEPRIVING
THE MERCHANT OF THE FULL RETAIL VALUE THEREOF;
  (K)  "STORE  OR  OTHER  RETAIL  MERCANTILE ESTABLISHMENT" SHALL MEAN A
PLACE WHERE MERCHANDISE IS DISPLAYED, HELD, STORED, OR  OFFERED  TO  THE
PUBLIC FOR SALE; AND
  (L)  "UNDER-RING"  SHALL MEAN TO CAUSE THE CASH REGISTER OR OTHER SALE
RECORDING DEVICE TO REFLECT LESS THAN  THE  FULL  RETAIL  VALUE  OF  THE
MERCHANDISE.
  2.  A PERSON IS A LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE IF HE
OR SHE CONSPIRES WITH OTHERS AS AN ORGANIZER, SUPERVISOR,  FINANCIER  OR
MANAGER,  TO  ENGAGE FOR PROFIT IN ORGANIZED RETAIL CRIME OR IN A SCHEME
OR COURSE OF CONDUCT TO EFFECTUATE THE TRANSFER OR  SALE  OF  SHOPLIFTED
MERCHANDISE.  LEADING  AN  ORGANIZED RETAIL THEFT ENTERPRISE CONSTITUTES
LARCENY IN THE SECOND DEGREE. NOTWITHSTANDING THE PROVISIONS OF  SECTION
80.00  OF  THIS  CHAPTER,  THE COURT MAY IMPOSE A FINE NOT TO EXCEED TWO
HUNDRED FIFTY THOUSAND DOLLARS OR FIVE TIMES THE  RETAIL  VALUE  OF  THE
MERCHANDISE SEIZED AT THE TIME OF THE ARREST, WHICHEVER IS GREATER.
  3.  NOTWITHSTANDING THE PROVISIONS OF SECTION 70.35 OF THIS CHAPTER, A
CONVICTION OF LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE  SHALL  NOT
MERGE  WITH  THE  CONVICTION  FOR ANY OFFENSE WHICH IS THE OBJECT OF THE
CONSPIRACY. NOTHING CONTAINED IN THIS SECTION SHALL PROHIBIT  THE  COURT
FROM IMPOSING AN EXTENDED TERM PURSUANT TO ARTICLE SEVENTY OF THIS CHAP-
TER; NOR SHALL THIS SECTION BE CONSTRUED IN ANY WAY TO PRECLUDE OR LIMIT
THE PROSECUTION OR CONVICTION OF ANY PERSON FOR CONSPIRACY UNDER ARTICLE
ONE  HUNDRED  FIVE OF THIS CHAPTER, OR ANY PROSECUTION OR CONVICTION FOR
ANY OTHER OFFENSE.
  4. IT SHALL NOT BE NECESSARY IN ANY PROSECUTION UNDER THIS SECTION FOR
THE STATE TO PROVE THAT ANY INTENDED PROFIT WAS ACTUALLY  REALIZED.  THE
TRIER  OF  FACT  MAY INFER THAT A PARTICULAR SCHEME OR COURSE OF CONDUCT
WAS UNDERTAKEN FOR PROFIT  FROM  ALL  OF  THE  ATTENDING  CIRCUMSTANCES,
INCLUDING  BUT  NOT  LIMITED  TO  THE  NUMBER OF PERSONS INVOLVED IN THE
SCHEME OR COURSE OF CONDUCT, THE  ACTOR'S  NET  WORTH  AND  HIS  OR  HER
EXPENDITURES IN RELATION TO HIS OR HER LEGITIMATE SOURCES OF INCOME, THE
AMOUNT  OF  MERCHANDISE  INVOLVED,  OR  THE  AMOUNT  OF CASH OR CURRENCY
INVOLVED.
  5. IT SHALL NOT BE A DEFENSE TO A PROSECUTION UNDER THIS SECTION  THAT
ANY SHOPLIFTED MERCHANDISE WAS BROUGHT INTO OR TRANSPORTED IN THIS STATE
SOLELY  FOR  ULTIMATE DISTRIBUTION IN ANOTHER JURISDICTION; NOR SHALL IT
BE A DEFENSE THAT ANY PROFIT WAS INTENDED TO BE MADE IN  ANOTHER  JURIS-
DICTION.

A. 10326                            4

  S  3.    Section 155.40 of the penal law, as amended by chapter 515 of
the laws of 1986, is amended to read as follows:
S 155.40 Grand larceny in the second degree.
  A  person  is  guilty  of  grand  larceny in the second degree when he
steals property and when:
  1. [The] THE value of the property  exceeds  fifty  thousand  dollars;
[or]
  2. [The] THE property, regardless of its nature and value, is obtained
by extortion committed by instilling in the victim a fear that the actor
or  another  person will (a) cause physical injury to some person in the
future, or (b) cause damage to property, or (c) use or abuse his OR  HER
position as a public servant by engaging in conduct within or related to
his  OR  HER  official  duties,  or by failing or refusing to perform an
official duty, in such manner as to affect some person adversely; OR
  3. THE PERSON IS A LEADER OF AN ORGANIZED RETAIL THEFT  ENTERPRISE  AS
PROVIDED IN SECTION 155.50 OF THIS ARTICLE.
  Grand larceny in the second degree is a class C felony.
  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.