S T A T E O F N E W Y O R K
________________________________________________________________________
3575
2015-2016 Regular Sessions
I N A S S E M B L Y
January 27, 2015
___________
Introduced by M. of A. RODRIGUEZ -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the executive law, the penal law and the state finance
law, in relation to minority and women-owned businesses post
completion certification, duties of the director, the crime of scheme
to defraud and creating the minority and women-owned business fund
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The executive law is amended by adding a new section 314-a
to read as follows:
S 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
WITH THE DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT AND THE
DEPARTMENT OF SMALL BUSINESS SERVICES, SHALL DEVELOP THE FOLLOWING
STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
1. CERTIFICATION FROM A REPRESENTATIVE OF THE PRIME CONTRACTOR THAT
THE MINORITY OR WOMEN-OWNED BUSINESS IN FACT PERFORMED THE SERVICES OR
PROVIDED THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE;
AND
2. CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR WOMEN-OWNED
BUSINESS THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED THE MATE-
RIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
S 2. Paragraphs (f), (h) and (i) of subdivision 3 of section 311 of
the executive law, paragraph (f) as added by chapter 261 of the laws of
1988, paragraph (h) as amended and paragraph (i) as added by section 1
of part BB of chapter 59 of the laws of 2006, are amended and three new
paragraphs (j), (k) and (l) are added to read as follows:
(f) to prepare and update periodically a directory of certified minor-
ity and women-owned business enterprises which shall, wherever practica-
ble, be divided into categories of labor, services, supplies, equipment,
materials and recognized construction trades and which shall indicate
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07144-02-5
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areas or locations of the state where such enterprises are available to
perform services, AND TO USE THIS INFORMATION TO CREATE AN INTERNET
BASED, SEARCHABLE, CENTRALIZED STATE REGISTRY DETAILING CERTIFICATIONS,
DENIALS, AND ALL DOCUMENTS SUBMITTED DURING THE LIFE OF THE CONTRACT;
(h) notwithstanding the provisions of section two hundred ninety-six
of this chapter, to file a complaint pursuant to the provisions of
section two hundred ninety-seven of this chapter where the director has
knowledge that a contractor may have violated the provisions of para-
graph (a), (b) or (c) of subdivision one of section two hundred ninety-
six of this chapter where such violation is unrelated, separate or
distinct from the state contract as expressed by its terms; [and]
(i) to streamline the state certification process to accept federal
and municipal corporation certifications[.];
(J) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS' PLACE
OF BUSINESS, WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE OF A
WORKFORCE, EQUIPMENT AND SUPPLIES;
(K) TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR WOMEN-
OWNED BUSINESS' FOR EVIDENCE OF FRAUD; AND
(L) TO ENSURE THE PROTECTION OF INDIVIDUALS WHO REPORT WRONGDOING ON
THE PART OF A MINORITY OR WOMEN-OWNED BUSINESS.
S 3. Section 190.60 of the penal law, as amended by chapter 491 of the
laws of 1992, subdivision 1 as amended by chapter 357 of the laws of
1996, is amended to read as follows:
S 190.60 Scheme to defraud in the [second] FIFTH degree.
1. A person is guilty of a scheme to defraud in the [second] FIFTH
degree when he OR SHE engages in a scheme constituting a systematic
ongoing course of conduct with intent to defraud more than one person or
to obtain property OR SERVICES, AS DEFINED IN SECTION 155.00 OF THIS
PART, from more than one person by false or fraudulent pretenses,
representations or promises, and so obtains property OR SERVICES from
one or more of such persons.
2. In any prosecution under this section, it shall be necessary to
prove the identity of at least one person from whom the defendant so
obtained property OR SERVICES, but it shall not be necessary to prove
the identity of any other intended victim.
Scheme to defraud in the [second] FIFTH degree is a class A misdemea-
nor.
S 4. Section 190.65 of the penal law, as amended by chapter 291 of the
laws of 2008, is amended to read as follows:
S 190.65 Scheme to defraud in the first degree.
1. A person is guilty of a scheme to defraud in the first degree when
he or she: (a) engages in a scheme constituting a systematic ongoing
course of conduct with intent to defraud [ten] ONE THOUSAND or more
persons or to obtain property OR SERVICES, AS DEFINED IN SECTION 155.00
OF THIS PART, from [ten] ONE THOUSAND or more persons by false or frau-
dulent pretenses, representations or promises, and so obtains property
OR SERVICES from one or more of such persons; or (b) engages in a scheme
constituting a systematic ongoing course of conduct with intent to
defraud more than one person or to obtain property OR SERVICES from more
than one person by false or fraudulent pretenses, representations or
promises, and so obtains property OR SERVICES with a value in excess of
one [thousand] MILLION dollars from one or more such persons[; or (c)
engages in a scheme constituting a systematic ongoing course of conduct
with intent to defraud more than one person, more than one of whom is a
vulnerable elderly person as defined in subdivision three of section
260.30 of this chapter or to obtain property from more than one person,
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more than one of whom is a vulnerable elderly person as defined in
subdivision three of section 260.30 of this chapter, by false or fraudu-
lent pretenses, representations or promises, and so obtains property
from one or more such persons].
2. In any prosecution under this section, it shall be necessary to
prove the identity of at least one person from whom the defendant so
obtained property OR SERVICES, but it shall not be necessary to prove
the identity of any other intended victim[, provided that in any prose-
cution under paragraph (c) of subdivision one of this section, it shall
be necessary to prove the identity of at least one such vulnerable
elderly person as defined in subdivision three of section 260.30 of this
chapter].
Scheme to defraud in the first degree is a class E felony.
S 5. The penal law is amended by adding three new sections 190.61,
190.62 and 190.63 to read as follows:
S 190.61 SCHEME TO DEFRAUD IN THE FOURTH DEGREE.
1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FOURTH DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD TEN OR MORE PERSONS OR TO
OBTAIN PROPERTY OR SERVICES, AS DEFINED IN SECTION 155.00 OF THIS PART,
FROM TEN OR MORE PERSONS BY FALSE OR FRAUDULENT PRETENSES, REPRESENTA-
TIONS OR PROMISES, AND SO OBTAINS PROPERTY OR SERVICES FROM ONE OR MORE
OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC
ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE THAN ONE PERSON OR
TO OBTAIN PROPERTY OR SERVICES FROM MORE THAN ONE PERSON BY FALSE OR
FRAUDULENT PRETENSES, REPRESENTATIONS OR PROMISES, AND SO OBTAINS PROP-
ERTY OR SERVICES WITH A VALUE IN EXCESS OF ONE THOUSAND DOLLARS FROM ONE
OR MORE SUCH PERSONS; OR (C) ENGAGES IN A SCHEME CONSTITUTING A SYSTEM-
ATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE THAN ONE
PERSON, MORE THAN ONE OF WHOM IS A VULNERABLE ELDERLY PERSON AS DEFINED
IN SUBDIVISION THREE OF SECTION 260.31 OF THIS CHAPTER OR TO OBTAIN
PROPERTY FROM MORE THAN ONE PERSON, MORE THAN ONE OF WHOM IS A VULNER-
ABLE ELDERLY PERSON AS DEFINED IN SUBDIVISION THREE OF SECTION 260.31 OF
THIS CHAPTER, BY FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS OR PROM-
ISES, AND SO OBTAINS PROPERTY FROM ONE OR MORE SUCH PERSONS.
2. IN ANY PROSECUTION UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO
OBTAINED PROPERTY OR SERVICES, BUT IT SHALL NOT BE NECESSARY TO PROVE
THE IDENTITY OF ANY OTHER INTENDED VICTIM, PROVIDED THAT IN ANY PROSE-
CUTION UNDER PARAGRAPH (C) OF SUBDIVISION ONE OF THIS SECTION, IT SHALL
BE NECESSARY TO PROVE THE IDENTITY OF AT LEAST ONE SUCH VULNERABLE
ELDERLY PERSON AS DEFINED IN SUBDIVISION THREE OF SECTION 260.31 OF THIS
CHAPTER.
SCHEME TO DEFRAUD IN THE FOURTH DEGREE IS A CLASS D FELONY.
S 190.62 SCHEME TO DEFRAUD IN THE THIRD DEGREE.
1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE THIRD DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD TWENTY-FIVE OR MORE PERSONS OR
TO OBTAIN PROPERTY OR SERVICES, AS DEFINED IN SECTION 155.00 OF THIS
PART, FROM TWENTY-FIVE OR MORE PERSONS BY FALSE OR FRAUDULENT PRETENSES,
REPRESENTATIONS OR PROMISES, AND SO OBTAINS PROPERTY OR SERVICES FROM
ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME CONSTITUTING A
SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE THAN
ONE PERSON OR TO OBTAIN PROPERTY OR SERVICES FROM MORE THAN ONE PERSON
BY FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS OR PROMISES, AND SO
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OBTAINS PROPERTY OR SERVICES WITH A VALUE IN EXCESS OF THREE THOUSAND
DOLLARS FROM ONE OR MORE SUCH PERSONS.
2. IN ANY PROSECUTION UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO
OBTAINED PROPERTY OR SERVICES, BUT IT SHALL NOT BE NECESSARY TO PROVE
THE IDENTITY OF ANY OTHER INTENDED VICTIM.
SCHEME TO DEFRAUD IN THE THIRD DEGREE IS A CLASS C FELONY.
S 190.63 SCHEME TO DEFRAUD IN THE SECOND DEGREE.
1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE SECOND DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD ONE HUNDRED OR MORE PERSONS OR
TO OBTAIN PROPERTY OR SERVICES, AS DEFINED IN SECTION 155.00 OF THIS
PART, FROM ONE HUNDRED OR MORE PERSONS BY FALSE OR FRAUDULENT PRETENSES,
REPRESENTATIONS OR PROMISES, AND SO OBTAINS PROPERTY OR SERVICES FROM
ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME CONSTITUTING A
SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE THAN
ONE PERSON OR TO OBTAIN PROPERTY OR SERVICES FROM MORE THAN ONE PERSON
BY FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS OR PROMISES, AND SO
OBTAINS PROPERTY OR SERVICES WITH A VALUE IN EXCESS OF FIFTY THOUSAND
DOLLARS FROM ONE OR MORE SUCH PERSONS.
2. IN ANY PROSECUTION UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO
OBTAINED PROPERTY OR SERVICES, BUT IT SHALL NOT BE NECESSARY TO PROVE
THE IDENTITY OF ANY OTHER INTENDED VICTIM.
SCHEME TO DEFRAUD IN THE SECOND DEGREE IS A CLASS B FELONY.
S 6. Paragraph c of subdivision 1 of section 80.00 of the penal law,
as amended by section 27 of subpart A of part H of chapter 55 of the
laws of 2014, is amended and a new paragraph d is added to read as
follows:
c. if the conviction is for any felony defined in article two hundred
twenty or two hundred twenty-one of this chapter, according to the
following schedule:
(i) for A-I felonies, one hundred thousand dollars;
(ii) for A-II felonies, fifty thousand dollars;
(iii) for B felonies, thirty thousand dollars;
(iv) for C felonies, fifteen thousand dollars.
When imposing a fine pursuant to the provisions of this paragraph, the
court shall consider the profit gained by defendant's conduct, whether
the amount of the fine is disproportionate to the conduct in which
defendant engaged, its impact on any victims, and defendant's economic
circumstances, including the defendant's ability to pay, the effect of
the fine upon his or her immediate family or any other persons to whom
the defendant owes an obligation of support[.]; OR
D. IF THE CONVICTION IS FOR ANY FELONY DEFINED IN SECTION 190.61,
190.62, 190.63, OR 190.65 AND THE FRAUD INVOLVES A MINORITY OR
WOMEN-OWNED BUSINESS, DOUBLE THE AMOUNT THAT SHOULD HAVE BEEN PAID TO
THE MINORITY OR WOMEN-OWNED BUSINESS FOR BONA FIDE WORK OR MATERIALS
UNDER THE CONTRACT.
S 7. Section 80.00 of the penal law is amended by adding a new subdi-
vision 8 to read as follows:
8. ALL MONEYS RECEIVED OR COLLECTED IN PAYMENT OF A FINE IMPOSED
PURSUANT TO PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION ARE THE
PROPERTY OF THE STATE AND THE STATE COMPTROLLER SHALL DEPOSIT ALL SUCH
FINES TO THE MINORITY AND WOMEN-OWNED BUSINESS FUND ESTABLISHED PURSUANT
TO SECTION NINETY-SEVEN-J OF THE STATE FINANCE LAW.
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S 8. The state finance law is amended by adding a new section 97-j to
read as follows:
S 97-J. MINORITY AND WOMEN-OWNED BUSINESS FUND. 1. THERE IS HEREBY
ESTABLISHED IN THE JOINT CUSTODY OF THE STATE COMPTROLLER AND THE
COMMISSIONER OF TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN AS THE
"MINORITY AND WOMEN-OWNED BUSINESS FUND".
2. SUCH FUNDS SHALL CONSIST OF ALL FINES RECEIVED FROM ANY COURT OF
THE UNIFIED COURT SYSTEM PURSUANT TO THE PROVISIONS OF SUBDIVISION EIGHT
OF SECTION 80.00 OF THE PENAL LAW.
3. MONIES OF THE FUND, WHEN ALLOCATED, SHALL BE DISBURSED TO ACQUIRE
SOFTWARE, EMPLOY PERSONNEL TO AUDIT, INVESTIGATE AND PROSECUTE MINORITY
AND WOMEN-OWNED BUSINESS FRAUD AND TO UNDERWRITE MINORITY AND
WOMEN-OWNED BUSINESS PROGRAMS TO ASSIST MINORITY AND WOMEN BUSINESS
OWNERS TO DEVELOP SUSTAINABLE BUSINESSES.
S 9. This act shall take effect immediately, provided, however, that
the amendments to article 15-A of the executive law made by sections one
and two of this act shall not affect the expiration of such article and
shall be deemed to expire therewith.