Senate Bill S5056

2011-2012 Legislative Session

Establishes the crime of exploitation of an elderly person, vulnerable elderly person or incompetent or physically disabled person

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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 04, 2012	referred to codes
May 03, 2011	referred to codes

2011-S5056 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §260.31, add §§260.35, 260.36 & 260.37, Pen L

2011-S5056 (ACTIVE) - Summary

Establishes the crimes of exploitation of an elderly person, vulnerable elderly person or incompetent or physically disabled person in the first, second, and third degree.

2011-S5056 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5056       REVISED 05/16/11

TITLE OF BILL:
An act
to amend the penal law, in relation to preventing financial
exploitation of the elderly

PURPOSE:
Establishes the crime of exploitation of an elderly person, vulnerable
elderly person or incompetent or physically disabled person.

SUMMARY OF PROVISIONS:
Section 1 amends section 260.31 of the penal law by adding definitions
for "Deception" and "Elderly person" and amending the definition for
"Caregiver."

Section 2 amends the penal law by adding three new sections
260.35,260.36 and 260.37.

Section 3 designates the effective date for the bill after it shall
have become a law.

EXISTING LAW:
New bill.

JUSTIFICATION:

Financial exploitation of the elderly is a pervasive form of abuse. It
is a national and statewide trend that is bound to increase as those
older than age 50 control at least 70% of the nation's household net
worth.

The National Center on Elder Abuse defines elder financial
exploitation as "the illegal or improper use of an elder's funds,
property or assets." Such instances of exploitation take form in the
way of credit card fraud, real estate scams, identify theft and
burglary. According to Maine Attorney General Steven Rowe in May
2004, forty percent of all reported elder abuse cases
involved financial exploitation. Washington County, Oregon saw its
senior citizens lose almost $2 million to financial exploitation and
crime in 2004. Muskogee County, Arizona reported in 2010 a confirmed
448 cases of neglect or exploitation.

In passing this bill, New York would be joining a band of states
responding to the need for increased protection for our elders
against financial abuse. In Maine, the Improvident Transfers of Title
law allows seniors who have transferred property as a s result of
undue influence to get court orders for its return. Within Arizona
law, individuals in a position of trust who use deception or
intimidation to gain permanent control of a senior's assets are
considered guilty of theft. An Oregon law protects bank personnel
when reporting suspicions of abuse.
This bill does not put any onus on anyone to report financial abuse
(via a fine or other penalty) Instead, it gives DA's recourse against
a crime which they often have no basis for prosecuting in New York.

LEGISLATIVE HISTORY:


None.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding
the date on which it shall have become a law.

2011-S5056 (ACTIVE) - Bill Text download pdf

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

                                  5056

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the penal  law,  in  relation  to  preventing  financial
  exploitation of the elderly

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

  Section 1.  Section 260.31 of the penal law, as added by  chapter  381
of  the  laws  of 1998, subdivision 1 as amended, subdivision 4 as added
and such section as renumbered by chapter 14 of the  laws  of  2010  and
subdivision  2 as amended by chapter 193 of the laws of 2010, is amended
to read as follows:
S 260.31 Vulnerable elderly persons; definitions.
  For the purpose of sections 260.32 [and], 260.34, 260.35,  260.36  AND
260.37 of this article, the following definitions shall apply:
  1.  "Caregiver"  means a person who (i) assumes responsibility for the
care of a vulnerable elderly person, or  an  incompetent  or  physically
disabled  person pursuant to a court order; or (ii) receives monetary or
other valuable consideration for providing care for a vulnerable elderly
person, or an incompetent or physically disabled  person.    "CAREGIVER"
MAY ALSO INCLUDE, BUT IS NOT LIMITED TO, RELATIVES, VOLUNTARY GUARDIANS,
ADULT HOUSEHOLD MEMBERS, NEIGHBORS, OR HEALTH CARE PROVIDERS.
  2. "Sexual contact" means any touching of the sexual or other intimate
parts  of a person for the purpose of gratifying sexual desire of either
party. It includes the touching of the actor by the victim, as  well  as
the  touching  of  the  victim by the actor, whether directly or through
clothing, as well as the emission of ejaculate by  the  actor  upon  any
part of the victim, clothed or unclothed.
  3.  "Vulnerable  elderly  person" means a person sixty years of age or
older who is suffering from  a  disease  or  infirmity  associated  with
advanced   age  and  manifested  by  demonstrable  physical,  mental  or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11138-02-1

S. 5056                             2

emotional dysfunction to the extent that  the  person  is  incapable  of
adequately providing for his or her own health or personal care.
  4. "Incompetent or physically disabled person" means an individual who
is unable to care for himself or herself because of physical disability,
mental disease or defect.
  5.  "DECEPTION" MEANS MISREPRESENTING OR CONCEALING A MATERIAL FACT IN
RELATION TO:
  A.  SERVICES  RENDERED,  DISPOSITION  OF PROPERTY, OR USE OF PROPERTY,
WHEN SUCH SERVICES OR  PROPERTY  ARE  INTENDED  TO  BENEFIT  AN  ELDERLY
PERSON,  VULNERABLE ELDERLY PERSON OR INCOMPETENT OR PHYSICALLY DISABLED
PERSON; OR
  B. TERMS OF A CONTRACT OR  AGREEMENT  ENTERED  INTO  WITH  AN  ELDERLY
PERSON,  VULNERABLE ELDERLY PERSON OR INCOMPETENT OR PHYSICALLY DISABLED
PERSON; OR
  C. AN EXISTING OR PREEXISTING CONDITION OF ANY PROPERTY INVOLVED IN  A
CONTRACT  OR  AGREEMENT  ENTERED INTO WITH AN ELDERLY PERSON, VULNERABLE
ELDERLY PERSON OR INCOMPETENT OR PHYSICALLY DISABLED PERSON.
  6. "ELDERLY PERSON" MEANS A PERSON SIXTY YEARS OF AGE OR OLDER.
  S 2. The penal law is amended by adding  three  new  sections  260.35,
260.36 and 260.37 to read as follows:
S 260.35 EXPLOITATION OF AN ELDERLY PERSON, VULNERABLE ELDERLY PERSON OR
           INCOMPETENT  OR  PHYSICALLY  DISABLED  PERSON  IN  THE  FIRST
           DEGREE.
  A PERSON IS GUILTY OF EXPLOITATION OF AN  ELDERLY  PERSON,  VULNERABLE
ELDERLY PERSON OR INCOMPETENT OR PHYSICALLY DISABLED PERSON IN THE FIRST
DEGREE WHEN HE OR SHE, THROUGH A BUSINESS RELATIONSHIP OR THEIR CAREGIV-
ER  STATUS,  KNOWINGLY,  BY  DECEPTION OR INTIMIDATION, OBTAINS, USES OR
ENDEAVORS TO OBTAIN OR USE, AN ELDERLY PERSON'S,  A  VULNERABLE  ELDERLY
PERSON'S  OR  INCOMPETENT OR PHYSICALLY DISABLED PERSON'S FUNDS, ASSETS,
OR PROPERTY WITH THE INTENT TO TEMPORARILY OR  PERMANENTLY  DEPRIVE  THE
ELDERLY  PERSON,  VULNERABLE ELDERLY PERSON OR INCOMPETENT OR PHYSICALLY
DISABLED PERSON OF THE USE, BENEFIT, OR POSSESSION OF THE FUNDS, ASSETS,
OR PROPERTY, OR TO BENEFIT SOMEONE OTHER  THAN  THE  ELDERLY  PERSON  OR
INCOMPETENT  OR  PHYSICALLY  DISABLED PERSON, WHEN SUCH FUNDS, ASSETS OR
PROPERTY ARE VALUED AT ONE HUNDRED THOUSAND DOLLARS OR MORE.
  EXPLOITATION OF AN ELDERLY PERSON, VULNERABLE ELDERLY PERSON OR INCOM-
PETENT OR PHYSICALLY DISABLED PERSON IN THE FIRST DEGREE IS  A  CLASS  B
FELONY.
S 260.36 EXPLOITATION OF AN ELDERLY PERSON, VULNERABLE ELDERLY PERSON OR
           INCOMPETENT  OR  PHYSICALLY  DISABLED  PERSON  IN  THE SECOND
           DEGREE.
  A PERSON IS GUILTY OF EXPLOITATION OF AN  ELDERLY  PERSON,  VULNERABLE
ELDERLY  PERSON  OR  INCOMPETENT  OR  PHYSICALLY  DISABLED PERSON IN THE
SECOND DEGREE WHEN HE OR SHE, THROUGH A BUSINESS RELATIONSHIP  OR  THEIR
CAREGIVER STATUS, KNOWINGLY, BY DECEPTION OR INTIMIDATION, OBTAINS, USES
OR  ENDEAVORS  TO OBTAIN OR USE, AN ELDERLY PERSON'S, VULNERABLE ELDERLY
PERSON'S OR INCOMPETENT OR PHYSICALLY DISABLED PERSON'S  FUNDS,  ASSETS,
OR  PROPERTY  WITH  THE INTENT TO TEMPORARILY OR PERMANENTLY DEPRIVE THE
ELDERLY PERSON, VULNERABLE ELDERLY PERSON OR INCOMPETENT  OR  PHYSICALLY
DISABLED PERSON OF THE USE, BENEFIT, OR POSSESSION OF THE FUNDS, ASSETS,
OR  PROPERTY,  OR  TO  BENEFIT  SOMEONE  OTHER  THAN THE ELDERLY PERSON,
VULNERABLE ELDERLY PERSON OR INCOMPETENT OR PHYSICALLY DISABLED  PERSON,
WHEN SUCH FUNDS, ASSETS OR PROPERTY ARE VALUED AT THREE THOUSAND DOLLARS
OR MORE.

S. 5056                             3

  EXPLOITATION OF AN ELDERLY PERSON, VULNERABLE ELDERLY PERSON OR INCOM-
PETENT  OR  PHYSICALLY DISABLED PERSON IN THE SECOND DEGREE IS A CLASS C
FELONY.
S 260.37 EXPLOITATION OF AN ELDERLY PERSON, VULNERABLE ELDERLY PERSON OR
           INCOMPETENT  OR  PHYSICALLY  DISABLED  PERSON  IN  THE  THIRD
           DEGREE.
  A PERSON IS GUILTY OF EXPLOITATION OF AN  ELDERLY  PERSON,  VULNERABLE
ELDERLY PERSON OR INCOMPETENT OR PHYSICALLY DISABLED PERSON IN THE THIRD
DEGREE WHEN HE OR SHE, THROUGH A BUSINESS RELATIONSHIP OR THEIR CAREGIV-
ER  STATUS,  KNOWINGLY,  BY  DECEPTION OR INTIMIDATION, OBTAINS, USES OR
ENDEAVORS TO OBTAIN OR USE,  AN  ELDERLY  PERSON'S,  VULNERABLE  ELDERLY
PERSON'S  OR  INCOMPETENT OR PHYSICALLY DISABLED PERSON'S FUNDS, ASSETS,
OR PROPERTY WITH THE INTENT TO TEMPORARILY OR  PERMANENTLY  DEPRIVE  THE
ELDERLY  PERSON OR INCOMPETENT OR PHYSICALLY DISABLED PERSON OF THE USE,
BENEFIT, OR POSSESSION OF THE FUNDS, ASSETS, OR PROPERTY, OR TO  BENEFIT
SOMEONE  OTHER  THAN  THE  ELDERLY  PERSON, VULNERABLE ELDERLY PERSON OR
INCOMPETENT OR PHYSICALLY DISABLED PERSON.
  EXPLOITATION OF AN ELDERLY PERSON, VULNERABLE ELDERLY PERSON OR INCOM-
PETENT OR PHYSICALLY DISABLED PERSON IN THE THIRD DEGREE IS  A  CLASS  D
FELONY.
  S 3. This act shall take effect on the first of November next succeed-
ing the date on which it shall have  become a law.

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Senate Bill S5056

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Archive: Last Bill Status - In Senate Committee Codes Committee

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2011-S5056 (ACTIVE) - Details

2011-S5056 (ACTIVE) - Summary

2011-S5056 (ACTIVE) - Sponsor Memo

2011-S5056 (ACTIVE) - Bill Text download pdf

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Sponsored By

Patrick M. Gallivan

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

2011-S5056 (ACTIVE) - Details

2011-S5056 (ACTIVE) - Summary

2011-S5056 (ACTIVE) - Sponsor Memo

2011-S5056 (ACTIVE) - Bill Text download pdf

Comments