S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6627
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 10, 2017
                                ___________
 
 Introduced by M. of A. CRESPO -- read once and referred to the Committee
   on Codes
 
 AN  ACT to amend the penal law, in relation to establishing the crime of
   financial exploitation of a vulnerable elderly person or a person with
   a disability; and to amend the general obligations law, in relation to
   civil liability for financial exploitation  of  a  vulnerable  elderly
   person
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  The penal law is amended by adding a new  article  262  to
 read as follows:
                                ARTICLE 262
         FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR
                        A PERSON WITH A DISABILITY
 SECTION 262.00 DEFINITIONS.
         262.05 FINANCIAL  EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR
                   A PERSON WITH A DISABILITY IN THE FOURTH DEGREE.
         262.10 FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON  OR
                   A PERSON WITH A DISABILITY IN THE THIRD DEGREE.
         262.15 FINANCIAL  EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR
                   A PERSON WITH A DISABILITY IN THE SECOND DEGREE.
         262.20 FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON  OR
                   A PERSON WITH A DISABILITY IN THE FIRST DEGREE.
         262.30 FINANCIAL EXPLOITATION; NO DEFENSE.
         262.35 FINANCIAL EXPLOITATION; DEFENSE.
 § 262.00 DEFINITIONS.
   FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING DEFINITIONS SHALL APPLY:
   1.  "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 PHYSICAL OR MENTAL DYSFUNCTIONING WHICH

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08357-01-7
              

 A. 6627                             2
 
 RENDERS SUCH PERSON INCAPABLE OF APPRAISING OR PREVENTING THE COMMISSION
 OF THE OFFENSE.
   2.  "PERSON  WITH  A  DISABILITY"  MEANS  A PERSON WHO HAS A PHYSICAL,
 MENTAL OR MEDICAL IMPAIRMENT RESULTING FROM  ANATOMICAL,  PHYSIOLOGICAL,
 OR  NEUROLOGICAL CONDITIONS THAT PREVENT THE EXERCISE OF A NORMAL BODILY
 FUNCTION OR THAT SUBSTANTIALLY IMPAIR COGNITIVE  FUNCTION,  AND  INCLUDE
 BUT  ARE  NOT LIMITED TO, IMPAIRMENTS REQUIRING THE USE OF AN ARTIFICIAL
 DEVICE TO MOVE, WALK, SEE, HEAR, OR BREATHE,  SUCH  AS  A  WHEEL  CHAIR,
 BRACES, CRUTCHES, RESPIRATOR, OR OTHER SUPPORTIVE EQUIPMENT, OR USE OF A
 GUIDE DOG OR OTHER GUIDING DEVICE.
   3.  "PERSON"  INCLUDES ANY INDIVIDUAL, FIRM, PARTNERSHIP, ASSOCIATION,
 PRIVATE OR PUBLIC CORPORATION, OR A GOVERNMENT OR  GOVERNMENTAL  INSTRU-
 MENTALITY.
   4.  "INTIMIDATION"  MEANS  THE  COMMUNICATION  TO A VULNERABLE ELDERLY
 PERSON OR A PERSON WITH A DISABILITY THAT HE OR SHE SHALL BE DEPRIVED OF
 FOOD OR NUTRITION, SHELTER, PRESCRIBED MEDICATION OR  MEDICAL  CARE  AND
 TREATMENT; OR THE USE OF, OR THREATENED USE OF, UNLAWFUL PHYSICAL FORCE;
 OR  ANY THREAT INVOLVING EXTORTION AS DEFINED IN PARAGRAPH (E) OF SUBDI-
 VISION TWO OF SECTION 155.05 OF THIS CHAPTER.
   5. "DECEPTION" MEANS A FALSE REPRESENTATION OR CONCEALMENT OF A MATTER
 OF FACT, WHETHER BY WORDS OR CONDUCT, BY FALSE OR MISLEADING STATEMENTS,
 WHICH DECEIVES AND IS INTENDED TO DECEIVE, THE VULNERABLE ELDERLY PERSON
 OR PERSON WITH A DISABILITY, SO THAT HE OR SHE SHALL ACT UPON IT TO  HIS
 OR HER ECONOMIC DETRIMENT.
   6.  "OBTAIN"  INCLUDES, BUT IS NOT LIMITED TO, THE BRINGING ABOUT OF A
 TRANSFER OR PURPORTED TRANSFER OF PROPERTY OR OF A LEGAL INTEREST THERE-
 IN, WHETHER TO THE OBTAINER OR ANOTHER.
   7. "CONTROL" MEANS THE POWER, RIGHT OR AUTHORITY  TO  MANAGE,  DIRECT,
 SUPERINTEND,  RESTRICT,  REGULATE,  GOVERN,  ADMINISTER,  OR OVERSEE THE
 WHOLE OR ANY PART OF THE PROPERTY OF A VULNERABLE ELDERLY  PERSON  OR  A
 PERSON WITH A DISABILITY.
   8.  "A  PERSON  STANDS  IN  A  POSITION OF TRUST OR CONFIDENCE" WITH A
 VULNERABLE ELDERLY PERSON OR A PERSON WITH A DISABILITY WHEN HE OR SHE:
   (A) IS A PARENT, SPOUSE, ADULT CHILD OR OTHER  RELATIVE  BY  BLOOD  OR
 MARRIAGE OF THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILI-
 TY, OR
   (B)  IS A JOINT TENANT OR TENANT IN COMMON WITH THE VULNERABLE ELDERLY
 PERSON OR THE PERSON WITH A DISABILITY, OR
   (C) HAS A POWER OF ATTORNEY OR OTHER LEGAL OR  FIDUCIARY  RELATIONSHIP
 WITH THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY, OR
   (D)  RECEIVES  MONETARY  OR OTHER VALUABLE CONSIDERATION FOR PROVIDING
 CARE FOR THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A  DISABILITY,
 OR
   (E)  LIVES  WITH OR PROVIDES SOME COMPONENT OF HOME CARE SERVICES ON A
 CONTINUING BASIS TO THE VULNERABLE ELDERLY PERSON OR THE PERSON  WITH  A
 DISABILITY  AND  INCLUDES A NEIGHBOR OR FRIEND WHO DOES NOT PROVIDE SUCH
 SERVICES BUT HAS ACCESS TO THE VULNERABLE ELDERLY PERSON OR  THE  PERSON
 WITH A DISABILITY BASED ON SUCH RELATIONSHIP.
   9. "PROPERTY" MEANS ANY MONEY, PERSONAL PROPERTY, REAL PROPERTY, THING
 IN  ACTION,  COMPUTER  DATA,  COMPUTER  PROGRAM,  EVIDENCE  OF  DEBT  OR
 CONTRACT, OR ANY ARTICLE, SUBSTANCE OR THING OF VALUE.
   10. "VALUE OF PROPERTY" SHALL HAVE  THE  SAME  MEANING  AND  SHALL  BE
 ASCERTAINED IN ACCORDANCE WITH SECTION 155.20 OF THIS CHAPTER.
 § 262.05 FINANCIAL  EXPLOITATION  OF  A  VULNERABLE  ELDERLY PERSON OR A
            PERSON WITH A DISABILITY IN THE FOURTH DEGREE.

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   A PERSON IS GUILTY OF FINANCIAL EXPLOITATION OF A  VULNERABLE  ELDERLY
 PERSON  OR  PERSON WITH A DISABILITY IN THE FOURTH DEGREE WHEN HE OR SHE
 STANDS IN A POSITION OF TRUST OR CONFIDENCE WITH THE VULNERABLE  ELDERLY
 PERSON  OR  THE  PERSON WITH A DISABILITY AND HE OR SHE KNOWINGLY AND BY
 DECEPTION  OR  INTIMIDATION  OBTAINS  CONTROL  OVER  THE PROPERTY OF THE
 VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY,  WITH  INTENT
 TO  WRONGFULLY  DEPRIVE  THAT  PERSON  OF THE TITLE TO, USE, BENEFIT, OR
 POSSESSION OF SUCH PROPERTY.
   FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH
 A DISABILITY IN THE FOURTH DEGREE IS A CLASS A MISDEMEANOR.
 § 262.10 FINANCIAL EXPLOITATION OF A  VULNERABLE  ELDERLY  PERSON  OR  A
            PERSON WITH A DISABILITY IN THE THIRD DEGREE.
   A  PERSON  IS GUILTY OF FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY
 PERSON OR A PERSON WITH A DISABILITY IN THE THIRD DEGREE WHEN HE OR  SHE
 STANDS  IN A POSITION OF TRUST OR CONFIDENCE WITH THE VULNERABLE ELDERLY
 PERSON OR THE PERSON WITH A DISABILITY AND HE OR SHE  KNOWINGLY  AND  BY
 DECEPTION  OR  INTIMIDATION  OBTAINS  CONTROL  OVER  THE PROPERTY OF THE
 VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY,  WITH  INTENT
 TO  WRONGFULLY  DEPRIVE  THAT  PERSON  OF THE TITLE TO, USE, BENEFIT, OR
 POSSESSION OF SUCH PROPERTY, AND THE VALUE OF THE PROPERTY  EXCEEDS  ONE
 THOUSAND DOLLARS.
   FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH
 A DISABILITY IN THE THIRD DEGREE IS A CLASS E FELONY.
 §  262.15  FINANCIAL  EXPLOITATION  OF  A VULNERABLE ELDERLY PERSON OR A
            PERSON WITH A DISABILITY IN THE SECOND DEGREE.
   A PERSON IS GUILTY OF FINANCIAL EXPLOITATION OF A  VULNERABLE  ELDERLY
 PERSON OR A PERSON WITH A DISABILITY IN THE SECOND DEGREE WHEN HE OR SHE
 STANDS  IN A POSITION OF TRUST OR CONFIDENCE WITH THE VULNERABLE ELDERLY
 PERSON OR THE PERSON WITH A DISABILITY AND HE OR SHE  KNOWINGLY  AND  BY
 DECEPTION  OR  INTIMIDATION  OBTAINS  CONTROL  OVER  THE PROPERTY OF THE
 VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY,  WITH  INTENT
 TO  WRONGFULLY  DEPRIVE  THAT  PERSON  OF THE TITLE TO, USE, BENEFIT, OR
 POSSESSION OF SUCH PROPERTY, AND THE VALUE OF THE PROPERTY EXCEEDS THREE
 THOUSAND DOLLARS.
   FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH
 A DISABILITY IN THE SECOND DEGREE IS A CLASS D FELONY.
 § 262.20 FINANCIAL EXPLOITATION OF A  VULNERABLE  ELDERLY  PERSON  OR  A
            PERSON WITH A DISABILITY IN THE FIRST DEGREE.
   A  PERSON  IS GUILTY OF FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY
 PERSON OR A PERSON WITH A DISABILITY IN THE FIRST DEGREE WHEN HE OR  SHE
 STANDS  IN A POSITION OF TRUST OR CONFIDENCE WITH THE VULNERABLE ELDERLY
 PERSON OR THE PERSON WITH A DISABILITY AND HE OR SHE  KNOWINGLY  AND  BY
 DECEPTION  OR  INTIMIDATION  OBTAINS  CONTROL  OVER  THE PROPERTY OF THE
 VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY,  WITH  INTENT
 TO  WRONGFULLY  DEPRIVE  THAT  PERSON  OF THE TITLE TO, USE, BENEFIT, OR
 POSSESSION OF SUCH PROPERTY, AND THE VALUE OF THE PROPERTY EXCEEDS FIFTY
 THOUSAND DOLLARS.
   FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH
 A DISABILITY IN THE FIRST DEGREE IS A CLASS C FELONY.
 § 262.30 FINANCIAL EXPLOITATION; NO DEFENSE.
   IT SHALL BE NO DEFENSE TO ANY PROSECUTION FOR  FINANCIAL  EXPLOITATION
 THAT THE DEFENDANT DID NOT KNOW THE FACTS AND CONDITIONS RESPONSIBLE FOR
 MAKING  THE  VICTIM A VULNERABLE ELDERLY PERSON OR A PERSON WITH A DISA-
 BILITY.
 § 262.35 FINANCIAL EXPLOITATION; DEFENSE.

 A. 6627                             4
 
   NO PROVISION OF THIS  ARTICLE  SHALL  BE  DEEMED  TO  IMPOSE  CRIMINAL
 LIABILITY  UPON ANY PERSON WHO IN GOOD FAITH SEEKS TO ASSIST THE VULNER-
 ABLE ELDERLY PERSON OR PERSON WITH A DISABILITY IN THE MANAGEMENT OF HIS
 OR HER PROPERTY, BUT THROUGH NO FAULT OF SUCH PERSON IS UNABLE TO ASSIST
 THE VULNERABLE ELDERLY PERSON OR THE PERSON WITH A DISABILITY.
   §  2.  The  general obligations law is amended by adding a new section
 11-108 to read as follows:
   § 11-108. CIVIL LIABILITY FOR FINANCIAL EXPLOITATION OF  A  VULNERABLE
 ELDERLY  PERSON OR A PERSON WITH A DISABILITY. 1. A PERSON CHARGED BY AN
 "ACCUSATORY INSTRUMENT", AS DEFINED IN SUBDIVISION ONE OF  SECTION  1.20
 OF  THE  CRIMINAL PROCEDURE LAW, WITH THE OFFENSE OF FINANCIAL EXPLOITA-
 TION OF A VULNERABLE ELDERLY PERSON OR A PERSON WITH A DISABILITY AS SET
 OUT IN ARTICLE TWO HUNDRED SIXTY-TWO OF THE PENAL LAW, AND WHO FAILS  OR
 REFUSES  TO  RETURN  THE  VICTIM'S  PROPERTY WITHIN SIXTY DAYS FOLLOWING
 RECEIPT OF A WRITTEN DEMAND FROM THE VICTIM OR THE VICTIM'S LEGAL REPRE-
 SENTATIVE SHALL, UPON A FINDING THAT SUCH PERSON UNLAWFULLY OBTAINED THE
 VICTIM'S PROPERTY, BE LIABLE TO THE VICTIM  OR  TO  THE  ESTATE  OF  THE
 VICTIM  IN  DAMAGES  OF  TREBLE  THE AMOUNT OF THE VALUE OF THE PROPERTY
 WRONGFULLY OBTAINED, PLUS REASONABLE ATTORNEY FEES AND COURT COSTS.
   2. THE BURDEN OF PROOF THAT  THE  DEFENDANT  UNLAWFULLY  OBTAINED  THE
 VICTIM'S PROPERTY SHALL BE BY A PREPONDERANCE OF THE EVIDENCE.
   3.  THIS  SECTION  SHALL BE OPERATIVE WHETHER OR NOT THE DEFENDANT HAS
 BEEN CONVICTED OF THE OFFENSE.
   4. THIS SECTION SHALL BE OPERATIVE IN ADDITION TO ANY OTHER  RIGHT  OF
 ACTION  OR  RECOVERY  OTHERWISE AVAILABLE UNDER LAW TO THE VICTIM OR THE
 VICTIM'S ESTATE.
   § 3. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.