S T A T E   O F   N E W   Y O R K
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                                   642

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by M. of A. CLARK, CANESTRARI -- Multi-Sponsored by -- M. of
  A. BUTLER, COLTON, COOK, DESTITO, GALEF,  MAGEE,  MAYERSOHN,  SCARBOR-
  OUGH, SWEENEY -- read once and referred to the Committee on Codes

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

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

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

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

                                                           LBD01659-01-1

A. 642                              2

IT  IS AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT APPROPRIATED SUCH PROP-
ERTY IN THE COURSE OF RENDERING ASSISTANCE WHICH BENEFITTED SUCH  PERSON
IN  THE MANAGEMENT OF HIS OR HER AFFAIRS, AND THE VALUE OF SUCH PROPERTY
WAS COMMENSURATE WITH THE BENEFIT CONFERRED.
  S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.