S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8560
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               July 10, 2017
                                ___________
 
 Introduced by M. of A. BUCHWALD -- read once and referred to the Commit-
   tee on Codes
 
 AN  ACT  to  amend  the  penal  law,  in  relation  to misapplication of
   construction rental equipment and theft of services
 
   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 section 165.03 to
 read as follows:
 § 165.03 MISAPPLICATION OF CONSTRUCTION RENTAL EQUIPMENT.
   1. A PERSON IS GUILTY OF MISAPPLICATION OF CONSTRUCTION RENTAL  EQUIP-
 MENT WHEN, KNOWINGLY POSSESSING CONSTRUCTION RENTAL EQUIPMENT OF ANOTHER
 PURSUANT  TO AN AGREEMENT THAT THE SAME WILL BE RETURNED TO THE OWNER AT
 A FUTURE TIME:
   (A) HE OR SHE LOANS, LEASES, PLEDGES,  PAWNS  OR  OTHERWISE  ENCUMBERS
 SUCH  PROPERTY  VALUED  IN  EXCESS  OF  ONE THOUSAND DOLLARS WITHOUT THE
 CONSENT OF THE OWNER THEREOF IN SUCH MANNER AS TO CREATE A RISK THAT THE
 OWNER WILL NOT BE ABLE TO RECOVER IT OR WILL SUFFER PECUNIARY LOSS; OR
   (B) HE OR SHE INTENTIONALLY REFUSES TO RETURN SUCH PROPERTY VALUED  IN
 EXCESS OF ONE THOUSAND DOLLARS TO THE OWNER PURSUANT TO THE TERMS OF THE
 RENTAL  AGREEMENT  PROVIDED  THAT  THE  OWNER  SHALL HAVE MADE A WRITTEN
 DEMAND FOR THE RETURN OF SUCH EQUIPMENT IN PERSON OR BY  CERTIFIED  MAIL
 AT  AN  ADDRESS  INDICATED  IN THE RENTAL AGREEMENT AND HE OR SHE INTEN-
 TIONALLY REFUSES TO RETURN SUCH EQUIPMENT FOR A PERIOD OF TEN DAYS AFTER
 SUCH DEMAND HAS BEEN RECEIVED OR SHOULD REASONABLY HAVE  BEEN  RECEIVED.
 SUCH  WRITTEN  DEMAND  SHALL  STATE:  (I) THE DATE AND TIME AT WHICH THE
 EQUIPMENT WAS TO HAVE BEEN RETURNED UNDER  THE  RENTAL  AGREEMENT;  (II)
 THAT  THE OWNER DOES NOT CONSENT TO THE CONTINUED WITHHOLDING OR RETAIN-
 ING OF SUCH EQUIPMENT AND DEMANDS ITS RETURN; AND (III) THAT THE CONTIN-
 UED WITHHOLDING OR RETAINING OF THE EQUIPMENT MAY CONSTITUTE A  CLASS  E
 FELONY  PUNISHABLE  BY  A  FINE  OF  UP  TO TWO THOUSAND DOLLARS OR BY A
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11411-05-7
              

 A. 8560                             2
 
 SENTENCE TO A TERM OF IMPRISONMENT FOR A PERIOD OF UP TO ONE YEAR OR  BY
 BOTH SUCH FINE AND IMPRISONMENT.
   2. AS USED IN THIS SECTION, THE TERMS OWNER AND RENTAL AGREEMENT SHALL
 BE  DEFINED AS IN SUBDIVISION ONE OF SECTION THREE HUNDRED NINETY-NINE-W
 OF THE GENERAL BUSINESS LAW, AS ADDED BY CHAPTER THREE HUNDRED  SEVENTY-
 TWO  OF  THE LAWS OF NINETEEN HUNDRED NINETY-FIVE. THE TERM CONSTRUCTION
 RENTAL EQUIPMENT SHALL MEAN ANY EQUIPMENT OR TOOLS GENERALLY USED IN THE
 CONSTRUCTION TRADE AND RENTED TO AN INDIVIDUAL OR  BUSINESS  UNDER  SUCH
 TERMS AS ARE AGREED UPON IN WRITING BY THE PARTIES TO SUCH AGREEMENT.
   3.  IN  ANY PROSECUTION UNDER PARAGRAPH (A) OF SUBDIVISION ONE OF THIS
 SECTION, IT  IS  A  DEFENSE  THAT,  AT  THE  TIME  THE  PROSECUTION  WAS
 COMMENCED,  (A)  THE DEFENDANT HAD RECOVERED POSSESSION OF THE EQUIPMENT
 WITHIN THE TIME SPECIFIED IN THE ORIGINAL RENTAL AGREEMENT OR ANY AMEND-
 MENT THERETO, UNENCUMBERED AS A RESULT OF THE UNLAWFUL DISPOSITION,  AND
 (B)  THE OWNER HAD SUFFERED NO MATERIAL ECONOMIC LOSS AS A RESULT OF THE
 UNLAWFUL DISPOSITION.
   4. IN ANY PROSECUTION UNDER PARAGRAPH (B) OF SUBDIVISION ONE  OF  THIS
 SECTION, IT IS A DEFENSE THAT AT THE TIME THE PROSECUTION WAS COMMENCED,
 (A)  THE OWNER HAD RECOVERED POSSESSION OF THE EQUIPMENT AND SUFFERED NO
 ECONOMIC LOSS AS A RESULT OF THE UNLAWFUL RETENTION, OR  (B)  THE  OWNER
 FAILED  TO  COMPLY  WITH THE PROVISIONS OF SECTION THREE HUNDRED NINETY-
 NINE-W OF THE GENERAL BUSINESS LAW, AS ADDED BY  CHAPTER  THREE  HUNDRED
 SEVENTY-TWO OF THE LAWS OF NINETEEN HUNDRED NINETY-FIVE.
   MISAPPLICATION OF CONSTRUCTION RENTAL EQUIPMENT IS A CLASS E FELONY.
   § 2. Section 165.15 of the penal law is amended by adding a new subdi-
 vision 12 to read as follows:
   12.    OBTAINING OR HAVING CONTROL OVER COMMERCIAL CONSTRUCTION RENTAL
 EQUIPMENT OF ANOTHER PERSON OR ENTITY PURSUANT TO A RENTAL AGREEMENT, HE
 OR SHE FAILS TO RETURN SUCH EQUIPMENT TO THE OWNER THEREOF ON  THE  DATE
 SPECIFIED FOR RETURN IN SUCH RENTAL AGREEMENT.
   §  3.  This  act shall take effect on the thirtieth day after it shall
 have become a law.