S T A T E O F N E W Y O R K
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5053
2015-2016 Regular Sessions
I N A S S E M B L Y
February 10, 2015
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Introduced by M. of A. ABBATE -- (at request of the State Comptroller)
-- read once and referred to the Committee on Governmental Employees
AN ACT to amend the penal law, in relation to the imposition of a manda-
tory fine upon certain public servants convicted of a designated felo-
ny offense related to his or her official duties; and to amend the
penal law and the criminal procedure law, in relation to the crime of
official misconduct and to abuse of public trust crimes
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. 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 to read as follows:
1. A sentence to pay a fine for a felony shall be a sentence to pay an
amount, fixed by the court, not exceeding the higher of
a. five thousand dollars; or
b. double the amount of the defendant's gain from the commission of
the crime or, if the defendant is convicted of a crime defined in arti-
cle four hundred ninety-six of this chapter, any higher amount not
exceeding three times the amount of the defendant's gain from the
commission of such offense; or
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02348-01-5
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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. FOR AN ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN SECTION 196.00 OF
THIS CHAPTER, OR ANY OFFENSE FOR WHICH THE OFFENDER'S STATUS AS A PUBLIC
SERVANT CONSTITUTES AN ELEMENT OF THE OFFENSE AS ENUMERATED IN PARAGRAPH
(B) OF SUBDIVISION ONE OF SECTION 196.00 OF THIS CHAPTER, THE COURT, IN
ADDITION TO ANY OTHER PENALTY WHICH MAY BE IMPOSED PURSUANT TO LAW,
SHALL IMPOSE A FINE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH A OR
B OF THIS SUBDIVISION, WHICHEVER IS GREATER.
S 2. Section 195.00 of the penal law, as amended by chapter 906 of the
laws of 1990, is amended to read as follows:
S 195.00 Official misconduct IN THE THIRD DEGREE.
A public servant is guilty of official misconduct IN THE THIRD DEGREE
when, with intent to obtain a benefit or deprive another person of a
benefit:
1. He OR SHE commits an act relating to his OR HER office but consti-
tuting an unauthorized exercise of his OR HER official functions, know-
ing that such act is unauthorized; or
2. He OR SHE knowingly refrains from performing a duty which is
imposed upon him OR HER by law or is clearly inherent in the nature of
his OR HER office.
Official misconduct IN THE THIRD DEGREE is a class [A misdemeanor] E
FELONY.
S 3. The penal law is amended by adding two new sections 195.01 and
195.02 to read as follows:
S 195.01 OFFICIAL MISCONDUCT IN THE SECOND DEGREE.
A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE SECOND DEGREE
WHEN HE OR SHE COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF ONE THOUSAND DOLLARS.
OFFICIAL MISCONDUCT IN THE SECOND DEGREE IS A CLASS D FELONY.
S 195.02 OFFICIAL MISCONDUCT IN THE FIRST DEGREE.
A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE FIRST DEGREE
WHEN HE OR SHE COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF THREE THOUSAND DOLLARS.
OFFICIAL MISCONDUCT IN THE FIRST DEGREE IS A CLASS C FELONY.
S 4. The penal law is amended by adding a new article 196 to read as
follows:
ARTICLE 196
ABUSE OF PUBLIC TRUST
SECTION 196.00 ABUSE OF PUBLIC TRUST CRIME.
S 196.00 ABUSE OF PUBLIC TRUST CRIME.
1. (A) A PERSON COMMITS AN ABUSE OF PUBLIC TRUST CRIME WHEN HE OR SHE
COMMITS A FELONY OFFENSE AND EITHER:
(I) INTENTIONALLY USES HIS OR HER POSITION AS A PUBLIC SERVANT IN A
MANNER THAT SIGNIFICANTLY FACILITATES THE COMMISSION OR CONCEALMENT OF
THE OFFENSE; OR
(II) ATTEMPTS, CONSPIRES OR SOLICITS ANOTHER TO COMMIT ANY FELONY, AND
IN SUCH ATTEMPT, CONSPIRACY OR SOLICITATION INTENTIONALLY USES HIS OR
HER POSITION AS A PUBLIC SERVANT TO SIGNIFICANTLY FACILITATE THE COMMIS-
SION OR CONCEALMENT OF THE OFFENSE.
(B) NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION, AN ABUSE OF
PUBLIC TRUST CRIME SHALL NOT INCLUDE ANY OFFENSE FOR WHICH THE
OFFENDER'S STATUS AS A PUBLIC SERVANT CONSTITUTES AN ELEMENT OF THE
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OFFENSE, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING PROVISIONS OF THIS
CHAPTER: PARAGRAPH (G) OF SUBDIVISION FOUR OF SECTION 135.35 (LABOR
TRAFFICKING); SUBDIVISION EIGHT OF SECTION 135.60 (COERCION IN THE
SECOND DEGREE); PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION 135.65
(COERCION IN THE FIRST DEGREE); PARAGRAPH (C) OF SUBDIVISION TWO OF
SECTION 155.40 (GRAND LARCENY IN THE SECOND DEGREE); SECTION 175.40
(ISSUING A FALSE CERTIFICATE); SECTION 195.00 (OFFICIAL MISCONDUCT IN
THE THIRD DEGREE); SECTION 195.01 (OFFICIAL MISCONDUCT IN THE SECOND
DEGREE); SECTION 195.02 (OFFICIAL MISCONDUCT IN THE FIRST DEGREE);
SECTION 200.10 (BRIBE RECEIVING IN THE THIRD DEGREE); SECTION 200.11
(BRIBE RECEIVING IN THE SECOND DEGREE); SECTION 200.12 (BRIBE RECEIVING
IN THE FIRST DEGREE); SECTION 200.25 (RECEIVING REWARD FOR OFFICIAL
MISCONDUCT IN THE SECOND DEGREE); SECTION 200.27 (RECEIVING REWARD FOR
OFFICIAL MISCONDUCT IN THE FIRST DEGREE); SECTION 200.35 (RECEIVING
UNLAWFUL GRATUITIES); SECTION 200.50 (BRIBE RECEIVING FOR PUBLIC
OFFICE); PARAGRAPH (G) OF SUBDIVISION FIVE OF SECTION 230.34 (SEX TRAF-
FICKING); OR ANY ATTEMPT OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING
OFFENSES.
2. WHEN A PERSON IS CONVICTED OF AN ABUSE OF PUBLIC TRUST CRIME PURSU-
ANT TO SUBDIVISION ONE OF THIS SECTION AND THE SPECIFIED OFFENSE IS A
CLASS C, D OR E FELONY, THE CRIME SHALL BE DEEMED TO BE ONE CATEGORY
HIGHER THAN THE SPECIFIED OFFENSE THE DEFENDANT COMMITTED, OR ONE CATE-
GORY HIGHER THAN THE OFFENSE LEVEL APPLICABLE TO THE DEFENDANT'S
CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO COMMIT A SPECIFIED OFFENSE,
WHICHEVER IS APPLICABLE.
3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS B FELONY:
(A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
SIX YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.00 OF
THIS CHAPTER;
(B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
(C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
(D) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.05 OF
THIS CHAPTER; AND
(E) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
DETERMINATE SENTENCE MUST BE AT LEAST TEN YEARS IF THE DEFENDANT IS
SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS A-I FELONY, THE MINIMUM PERIOD OF THE INDE-
TERMINATE SENTENCE SHALL BE NOT LESS THAN TWENTY YEARS.
S 5. Subdivision 4 of section 200.50 of the criminal procedure law, as
amended by section 15 of subpart A of part H of chapter 55 of the laws
of 2014, is amended to read as follows:
4. A statement in each count that the grand jury, or, where the accu-
satory instrument is a superior court information, the district attor-
ney, accuses the defendant or defendants of a designated offense,
provided that in any prosecution under article four hundred eighty-five
of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section 485.05 of the penal law,
followed by the phrase "as a hate crime", and provided further that in
any prosecution under section 490.25 of the penal law, the designated
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offense shall be the specified offense, as defined in subdivision three
of section 490.05 of the penal law, followed by the phrase "as a crime
of terrorism"; and provided further that in any prosecution under
section 130.91 of the penal law, the designated offense shall be the
specified offense, as defined in subdivision two of section 130.91 of
the penal law, followed by the phrase "as a sexually motivated felony";
and provided further that in any prosecution under section 496.06 of the
penal law, the designated offense shall be the specified offense, as
defined in subdivision two of such section, followed by the phrase "as a
public corruption crime"; AND PROVIDED FURTHER THAT IN ANY PROSECUTION
UNDER ARTICLE ONE HUNDRED NINETY-SIX OF THE PENAL LAW, THE DESIGNATED
OFFENSE SHALL BE THE DESIGNATED FELONY OFFENSE, AS DEFINED IN SUBDIVI-
SION TWO OF SECTION 196.00 OF THE PENAL LAW, FOLLOWED BY THE PHRASE "AS
AN ABUSE OF PUBLIC TRUST CRIME"; and
S 6. Subdivision 7 of section 200.50 of the criminal procedure law is
amended by adding a new paragraph (f) to read as follows:
(F) IN THE CASE OF AN ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN
SECTION 196.00 OF THE PENAL LAW, SPECIFIES, AS APPLICABLE, THAT THE
DEFENDANT OR DEFENDANTS COMMITTED, OR ATTEMPTED, CONSPIRED OR SOLICITED
ANOTHER TO COMMIT, A FELONY AND INTENTIONALLY USED HIS OR HER POSITION
AS A PUBLIC SERVANT IN A MANNER THAT SIGNIFICANTLY FACILITATED THE
COMMISSION OR CONCEALMENT OF THE OFFENSE; AND
S 7. This act shall take effect on the one hundred twentieth day after
it shall have become a law.