Senate Bill S1490

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1490
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2017
                                ___________
 
 Introduced  by  Sen.  AVELLA -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law, in relation to the definition of mentally
   disabled and in relation to larceny; to amend the civil  practice  law
   and  rules,  in relation to the mental condition of a victim; to amend
   the criminal procedure law, in relation to examination  of  witnesses;
   and to amend the penal law, in relation to larceny
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 155.00 of the penal law is amended by adding a  new
 subdivision 10 to read as follows:
   10.  "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.
   § 2. Section 155.10 of the penal law is amended to read as follows:
 § 155.10 Larceny; no defense.
   1. The crimes of (a) larceny committed by means of  extortion  and  an
 attempt  to commit the same, and (b) bribe receiving by a labor official
 as defined in section 180.20, and bribe receiving as defined in  section
 200.05,  are  not  mutually  exclusive, and it is no defense to a prose-
 cution for larceny committed by means of extortion or for an attempt  to
 commit  the same that, by reason of the same conduct, the defendant also
 committed one of such specified crimes of bribe receiving.
   2. 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 WHOM THE DEFENDANT KNEW OR HAD REASON
 TO KNOW WAS MENTALLY DISABLED.
   § 3. Section 4504 of the civil practice law and rules  is  amended  by
 adding a new subdivision (e) to read as follows:

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01219-01-7
              

 S. 1490                             2
 
   (E) MENTAL CONDITION OF A VICTIM. UPON RECEIPT OF A GRAND JURY SUBPOE-
 NA  ISSUED PURSUANT TO SUBDIVISION TWO OF SECTION 610.20 OF THE CRIMINAL
 PROCEDURE LAW AND ENDORSED BY A JUDGE OF A  SUPERIOR  COURT,  A  MEDICAL
 PROVIDER  MUST,  AS  INDICATED IN THIS SUBDIVISION, PROVIDE TO THE GRAND
 JURY THE MEDICAL RECORDS OF THE PERSON NAMED IN THE SUBPOENA. A JUDGE OF
 A  SUPERIOR  COURT  SHALL  ENDORSE SUCH A GRAND JURY SUBPOENA UPON AN EX
 PARTE SWORN SHOWING BY A DISTRICT ATTORNEY, OR  OTHER  PROSECUTOR  WHERE
 APPROPRIATE,  ESTABLISHING (1) THAT THERE IS REASONABLE CAUSE TO BELIEVE
 THAT THE PERSON IN QUESTION IS A MENTALLY DISABLED PERSON, AND (2)  THAT
 THERE  IS  REASONABLE  CAUSE  TO BELIEVE THAT THE PERSON IN QUESTION HAS
 BEEN THE VICTIM OF FINANCIAL EXPLOITATION. A PERSON IS  "MENTALLY  DISA-
 BLED"  FOR  PURPOSES OF THIS SUBDIVISION WHEN THAT PERSON SUFFERS FROM A
 MENTAL DISEASE, DEFECT OR CONDITION WHICH RENDERS HIM OR  HER  INCAPABLE
 OF  APPRAISING  THE  NATURE  OF  THE  CONDUCT CONSTITUTING THE FINANCIAL
 EXPLOITATION. UPON RECEIPT  OF  SUCH  AN  ENDORSED  SUBPOENA  A  MEDICAL
 PROVIDER,  INCLUDING  BUT  NOT  LIMITED  TO A PHYSICIAN, PSYCHOLOGIST OR
 NURSE, SHALL BE REQUIRED TO DISCLOSE INFORMATION RELATING TO THE  MENTAL
 OR  COGNITIVE  CONDITION  OF  THE  PERSON  IN  QUESTION THAT THE MEDICAL
 PROVIDER ACQUIRED IN ATTENDING THE PERSON IN  A  PROFESSIONAL  CAPACITY,
 AND WHICH WAS NECESSARY TO ENABLE HIM OR HER TO ACT IN THAT CAPACITY.
   §  4. Subdivision 2 of section 660.20 of the criminal procedure law is
 amended to read as follows:
   2.  Will not be amenable or responsive to legal process  or  available
 as  a witness at a time when his OR HER testimony will be sought, either
 because he OR SHE is:
   (a)  About to leave the state and not return for a substantial  period
 of time; or
   (b)  Physically ill or [incapacited.] INCAPACITATED; OR
   (C)  OF ADVANCED AGE WHICH, FOR THE PURPOSES OF THIS SUBDIVISION SHALL
 MEAN A PERSON WHO HAS ATTAINED THE AGE OF SEVENTY-FIVE YEARS.
   § 5. Paragraph (d) of subdivision 2 of section 155.05 of the penal law
 is amended to read as follows:
   (d) By false promise.
   A person obtains property by false promise when, pursuant to a  scheme
 to  defraud,  he OR SHE obtains property of another by means of a repre-
 sentation, express or implied, that he, SHE or a third  person  will  in
 the  future  engage  in  particular conduct, and when he OR SHE does not
 intend to engage in such conduct or,  as  the  case  may  be,  does  not
 believe that the third person intends to engage in such conduct.
   In any prosecution for larceny based upon a false promise, the defend-
 ant's  intention  or  belief that the promise would not be performed may
 not be established by or inferred from the fact alone that such  promise
 was not performed. Such a finding may be based only upon evidence estab-
 lishing that the facts and circumstances of the case are wholly consist-
 ent  with  guilty intent or belief and wholly inconsistent with innocent
 intent or belief, and excluding to a moral  certainty  every  hypothesis
 except  that  of  the  defendant's  intention or belief that the promise
 would not be performed; PROVIDED THAT PARTIAL PERFORMANCE OF SUCH  PROM-
 ISE  DOES  NOT,  BY  ITSELF, PRECLUDE A REASONABLE JURY FROM MAKING SUCH
 FINDING FROM ALL THE FACTS AND CIRCUMSTANCES;
   § 6. This act shall take effect immediately.