BILL NUMBER:S7177

TITLE OF BILL:  An act to amend the penal law, in relation to the
definition of mentally disabled and in relation to larceny

PURPOSE:  To amend the Penal Law to state that, "it is no defense to a
prosecution for larceny that the defendant obtained consent to take,
withhold, or obtain property, where such consent was obtained from a
person who the defendant knew or had reason to know was mentally
disabled" and to define "mentally disabled."

SUMMARY OF PROVISIONS:

Section 1 amends § 155.00 of the Penal Law, by adding a new
subdivision 10 to specify the term "mentally disabled" means that a
person suffers from a mental disease, defect or condition which
renders him or her incapable of appraising the nature of the conduct
constituting the taking, obtaining or withholding of his or her
property.

Section 2 amends § 155.10 of the Penal Law to state that, "it is no
defense to a prosecution for larceny that the defendant obtained
consent to take, withhold, or obtain property, where such consent was
obtained from a person who the defendant knew or had reason to know
was mentally disabled."

              

Section 3 states that this act shall take effect immediately

JUSTIFICATION:  New York's Penal Law was recently amended to target
physical assaults committed against elderly victims. In contrast with
most other states in the country, however, New York has not addressed
the financial exploitation of impaired adults. The sad fact is that
older adults who suffer from age-related cognitive disorders may be
unable to understand basic arithmetic, let alone their finances. They
may not remember signing checks, wills, or deeds, or giving permission
or authority to transfer ownership of their bank accounts or real
estate.

For those reasons, an elderly victim's mental infirmity can complicate
a larceny prosecution. The Penal Law requires proof that the defendant
wrongfully took, obtained, or withheld property from an owner; in
other words, that the property was taken without consent. A mentally
disabled victim, however, cannot give meaningful consent.  More
importantly, such a victim cannot testify (nor, for that matter,
execute a sworn certification) that his or her property was taken
without consent. To prove this element, the prosecution often relies
on evidence that at the time of the taking, the victim lacked the
mental capacity to consent. That is precisely what occurred in People
v. Caminola. In that case, the defendant stole from his victim, a
senile elderly woman, over a two-year period. At trial, the defendant
testified that the funds he took were gifts from the victim, who had
by then passed away. The trial court permitted the prosecution to
introduce evidence of the victim's mental condition at the time of the
transfer, deeming it relevant to whether she had the capacity to
consent.


The First Department affirmed the conviction, explaining: "The jury
was not instructed that the victim's capacity or incapacity was an
element of the offense, but only that they could evaluate her capacity
under the circumstances of this case in determining whether a trespass
had occurred or whether, as defendant contended, he had acted with her
knowledge and consent. Although we note the paucity of case law in
this State equating a trespass for purposes of larceny with an
ostensibly donative victim's inability to consent to the taking,
nevertheless, these factors are properly considered in the context of
a traditional understanding of the larceny statute."

The limited case law has seeded confusion in larceny cases with
mentally disabled victims. This legislation will codify the holding of
Caminola to make it applicable statewide.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None

EFFECTIVE DATE:  This act shall take effect immediately