Assembly Actions - Lowercase Senate Actions - UPPERCASE |
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Jun 11, 2018 | referred to codes delivered to assembly passed senate |
May 07, 2018 | advanced to third reading |
May 02, 2018 | 2nd report cal. |
May 01, 2018 | 1st report cal.1000 |
Jan 03, 2018 | referred to codes returned to senate died in assembly |
Jun 15, 2017 | referred to codes delivered to assembly passed senate |
Jun 14, 2017 | ordered to third reading cal.1702 committee discharged and committed to rules |
Jun 01, 2017 | print number 2406a |
Jun 01, 2017 | amend (t) and recommit to codes |
Jan 13, 2017 | referred to codes |
senate Bill S2406A
Relates to cyber crimes; repealer
Sponsored By
Martin J. Golden
(R, C, IP) 0 Senate District
Archive: Last Bill Status - Passed Senate
- Introduced
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed/Vetoed by Governor
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Jun 11, 2018 - floor Vote
S2406A610floor61Aye0Nay0Absent2Excused0Abstained-
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Floor Vote: Jun 11, 2018
aye (61)- Addabbo
- Akshar
- Alcantara
- Amedore
- Avella
- Bailey
- Benjamin
- Bonacic
- Boyle
- Breslin
- Brooks
- Carlucci
- Comrie
- DeFrancisco
- Dilan
- Felder
- Flanagan
- Funke
- Gallivan
- Gianaris
- Golden
- Griffo
- Hamilton
- Hannon
- Helming
- Hoylman-Sigal
- Jacobs
- Kaminsky
- Kavanagh
- Kennedy
- Klein
- Krueger
- Lanza
- Larkin
- LaValle
- Little
- Marcellino
- Marchione
- Mayer
- Montgomery
- Murphy
- O'Mara
- Ortt
- Parker
- Peralta
- Persaud
- Phillips
- Ranzenhofer
- Ritchie
- Rivera
- Robach
- Sanders
- Savino
- Serino
- Serrano
- Seward
- Stavisky
- Stewart-Cousins
- Tedisco
- Valesky
- Young
May 1, 2018 - Codes committee Vote
S2406A150committee15Aye0Nay1Aye with Reservations0Absent0Excused0AbstainedJun 15, 2017 - floor Vote
S2406A600floor60Aye0Nay0Absent3Excused0Abstained-
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Floor Vote: Jun 15, 2017
aye (60)- Addabbo
- Akshar
- Alcantara
- Amedore
- Avella
- Benjamin
- Bonacic
- Boyle
- Breslin
- Brooks
- Carlucci
- Comrie
- Croci
- DeFrancisco
- Dilan
- Felder
- Flanagan
- Funke
- Gallivan
- Gianaris
- Golden
- Griffo
- Hamilton
- Hannon
- Helming
- Hoylman-Sigal
- Jacobs
- Kaminsky
- Kennedy
- Klein
- Krueger
- Lanza
- Larkin
- Latimer
- LaValle
- Little
- Marchione
- Montgomery
- Murphy
- O'Mara
- Ortt
- Parker
- Peralta
- Persaud
- Phillips
- Ranzenhofer
- Ritchie
- Rivera
- Robach
- Sanders
- Savino
- Serino
- Serrano
- Seward
- Squadron
- Stavisky
- Stewart-Cousins
- Tedisco
- Valesky
- Young
excused (3)
Jun 14, 2017 - Rules committee Vote
S2406A220committee22Aye0Nay2Aye with Reservations1Absent0Excused0Abstained-
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Rules Committee Vote: Jun 14, 2017
aye (22)aye wr (2)absent (1)
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S2406 - Details
S2406 - Sponsor Memo
BILL NUMBER: S2406 TITLE OF BILL : An act to amend the penal law and the criminal procedure law, in relation to cyber crimes PURPOSE : To create a framework for the prosecution of online privacy violations. SUMMARY OF PROVISIONS : The bill modernizes, or if necessary, creates cyber-crime statutes and creates a graduated series of penalties based on the amount of damages and the numbers of persons affected. LARCENY Amends section 155.00 of the penal law to enlarge the definition of "property" to include personal identifying information and secret scientific material, to update definitions of "obtain," "deprive," "appropriate" for the computer age, and to add definitions of "computer program" and "computer data" Extends definition of larceny to include personal identifying information and theft of service. Changes definition of larceny to include theft of service and changes penalty structure to match the penalty to the numbers of people or the
amount of damages, as follows: *Creates a new crime, Petit Theft of Service (155.23), stealing a service, a B misdemeanor. *Adds to Petit larceny (155.25), stealing a service with a value in excess of $500. *Adds to Grand larceny 4th (155.30) stealing a service or personal identifying information maintains $1,000 value - E felony. *Adds to Grand larceny 3rd (155.35), stealing a service, or that the property stolen is personal identifying information of 25 or more persons; maintains $3,000 value - D felony. *Adds to Grand larceny 2nd, personal identifying information of 100 or more persons maintains $50,000 limit - C felony. *Adds to Grand larceny 1st, personal identifying information of 1,000 or more persons maintains $1 million valuation - B felony. COMPUTER TAMPERING Changes definition of without authorization in computer use to include going beyond the scope of permission granted Renumbers computer tampering to include a new computer tampering in the first degree by renumbering fourth, third, and second degrees one step lower The new computer tampering framework is as follows: *Computer tampering 5th degree (formerly the 4th) - remains a class A misdemeanor. *Computer tampering 4th degree - damages of $1,000 - remains an E felony. *Computer tampering 3rd degree - damages of $3,000 - remains a D felony. *Computer tampering 2nd degree - $50,000 - remains a C felony. *Computer Tampering 1st degree - $1 million in damages - B felony. DENIAL OF SERVICE ATTACK New crimes against denial of service defined as the transmission of a program, information, code, or command, or other electronic communication, and as a result of such conduct, intentionally makes the computer, computer service, computer program, or computer network temporarily or indefinitely unavailable to its intended users. *Denial of Service Attack 5th - A misdemeanor. *Denial of service attack 4th - damages or loss that exceeds $1,000 - E felony. *Denial of service attack 3rd - damages or loss of $3,000 - D felony. *Denial of service attack 2nd - damages or loss that exceeds $50,000 - C felony. *Denial of service attack 1st - damages or loss that exceeds $1 million - B felony. CRIMINAL POSSESSION OF STOLEN PROPERTY Adds personally identifying information to the definition of stolen property, and creates a new framework: *Criminal possession of stolen property 4th - adds personal identifying information. *Criminal possession of stolen property 3rd - value exceeds $3,000 or 25 or more victims - D felony. *Criminal possession of stolen property 2nd - value exceeds $50,000 or the consists of personal identifying information of one hundred or more persons - C felony. *Criminal possession of stolen property 1st - value exceeds $1 million or the consists of personal identifying information of one thousand or more persons - B felony. SCHEME TO DEFRAUD Creates graduated scheme to defraud: *Scheme to Defraud 5th - No specified value or number of victims - A Misdemeanor. *Scheme to Defraud 4th - Greater than $1,000 or 10 or more victims or one vulnerable elderly person - E Felony. *Scheme to Defraud 3rd - Greater than $3,000 or 25 or more victims - D Felony. *Scheme to Defraud 2nd - Greater than $50,000 or 100 or more victims - C Felony. *Scheme to Defraud 1st - Greater than $1,000,000 or 1,000 or more victims - B Felony. IDENTIFY THEFT Renumbers current sections to Create a graduated provision in place of the level penalty that currently exists: *Identity Theft 5th - No specified value or number of victims - A Misdemeanor. *Identity Theft 4th - Greater than $500 or 3 or more victims - E Felony. *Identity Theft 3rd - Greater than $2,000 or 10 or more victims - D Felony. *Identity Theft 2nd - Greater than $25,000 or 25 or more victims - C Felony *Identity Theft 1st - Greater than $500,000 or 100 or more victims - B Felony. *Aggravated identity theft - includes vulnerable elderly person or a physically disabled person in an aggregate amount that exceeds five hundred dollars - D felony. SKIMMER DEVICE *Criminal possession of a skimmer device 2nd - D Felony. *Criminal possession of a skimmer device 1st - C Felony. VENUE & SEARCH WARRANTS *Adds to CPL Geographical jurisdiction of offenses an offense of larceny, criminal possession of stolen property, and personal identifying information or computer data or computer program. *CPL Search warrants - adds electronic communication service or remote computing service, defines "Electronic Communications services" and adds any company, corporation or entity which is headquartered or located outside of the State of New York, and which conducts its regular business in New York or that offers its services to residents of New York. EXISTING LAW : New bill. JUSTIFICATION : Cybercrime and identity theft are the fastest growing crimes in New York and around the country, with almost daily reports of breaches of customer information from large and small institutions. New York's criminal laws have not kept pace with technology, and do not reflect new modes of communication, or the ways companies conduct their businesses, or provide adequate punishment for the serious damage suffered by victims of cybercrimes and identity thefts. This legislation modernizes the criminal laws, provides new tools for law enforcement, and creates an appropriate graduated scheme for prosecutions: 1. Identity Theft and Related Statutes - a. Increase Identity Theft Penalties to Reflect the Severity of the Crime. The most severe criminal statute that penalizes identity theft is Penal Law 190.80 (Identity Theft in the First Degree), which provides, in relevant part, that one who engages in identity theft that causes more than $2,000 in losses is guilty of a Class D felony (See Penal Law § 190.80(2)), but the statute does not distinguish between more and less severe instances of identity theft, meaning that theft that causes $2,001 in losses faces the same charge as theft that causes losses of $500,000, or more. Similarly, stealing numerous victims may be subject to no greater penalty than stealing the identity of a single person b. Repeat Offenders. The bill extends the lookback period from five years to 10 years, similar to Persistent Sexual Abuse, Vehicular Assault in the First Degree, Menacing in the First Degree, and others It also provides a tolling provision that "stops the clock" during the time a defendant is incarcerated. Finally, it includes a prior conviction for any larceny crime in Article 155, any criminal possession of stolen property crime in Article 165, and any offense listed in Articles 170 ("Other Frauds") and 190 ("Forgery or Related Offenses") as a qualifying predicate offense for "bump up." c. Aggravated Identity Theft-In 2007, the legislature created Aggravated Identity Theft (Penal Law § 190.80-a), which makes it a Class D felony to engage in identity theft and thereby cause gain or loss of $500 or more, while knowing that the person whose identity is stolen is a member of the armed forces serving overseas. The bill includes other vulnerable groups, the elderly, the incompetent, and the physically disabled in the ambit of the law. 2. Criminal Possession of a Skimmer Device A "skimmer device" is defined as a "device designed or adapted to obtain person identifying information from a credit card, debit card, public benefit card, access card or device, or other card or device that contains personal identifying information." Skimmer devices are essential in almost all cybercrime, identity theft, and forgery-related crimes. Because of skimmer devices' central importance to such crimes, the penalties for unlawful possession of skimmer devices should be increased. 3. Computer Crimes a. Definition of "Computer Material." The current definition is restricted to medical records, government records, or data that provides a competitive advantage to the individual accessing it without permission As a consequence, computer trespass, duplication, or tampering that affect other kinds of computer data - such as personal, non-commercial information that may be equally dear to the rightful owners of such data - cannot be effectively prosecuted. For example, hacking into private citizens' emails may be prosecuted as only a misdemeanor rather than a felony. The definition of "computer material" is broadened so that Computer Trespass, Unlawful Duplication of Computer Related Material in the Second Degree, and Computer Tampering in the Second and Third Degrees may be charged even where the material trespassed, duplicated, or tampered with is not medical or government records or competitively sensitive data. The measure also clarifies "Without Authorization" to include exceeding limited access to engage in wrongdoing. b. Computer Tampering - The highest level of computer tampering, which is the alteration or destruction of any of the data or programs on a computer by one whose use of or access to the computer is without authorization, is Computer Tampering in the First Degree, a C felony, which applies in any instance in which one engaged computer tampering and thereby causes damages exceeding $50,000. This does not meaningfully distinguish between more and less severe instances of computer tampering, and it provides an insufficient penalty for very serious instances of computer tampering, the change is to create a graduated set of penalties based on damages or the numbers of people affected. c. Scheme to Defraud- The crime is only a Class E felony, regardless of the value of property obtained. A defendant who defrauds numerous victims may be subject to no greater penalty than a defendant who defrauds a single victim. The bill creates a graduated scheme to defraud d. Larceny and Criminal Possession of Stolen Property - Larceny and stolen property laws largely apply only to circumstances surrounding the fraudulent and unauthorized use of personal identifying information, as opposed to the theft and possession of the personal identifying information itself. The bill expands larceny and criminal possession of stolen property laws to cover individuals who steal and possess personal identifying information and provides graduated offenses involving possession of stolen personal identifying information. e. Venue - the bill changes the law so that the same venue provisions apply to larceny and criminal possession of stolen property as they relate to personal identifying information. Identity theft often crosses county, state, and even national borders. f. Search Warrants - Under CPL Article 690 20(1), search warrants issued by New York courts cannot be executed outside of the State. As a consequence, it is difficult to execute search warrants for email content or social media accounts (many of which are based in California) In several other states search warrants issued by the state's courts may be executed outside of the state. The bill amends CPL to allow for the execution of search warrants for electronic records, email accounts, etc., outside New York State. It does not seek to permit the execution outside of the state of search warrants that seek non-electronic content. LEGISLATIVE HISTORY : 2015 S. 4072 Passed Senate. 2016 S. 4072-B Passed Senate FISCAL IMPLICATIONS : It is likely that this will result in increased penalty revenues. EFFECTIVE DATE : Immediately.
S2406 - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 2406 2017-2018 Regular Sessions I N S E N A T E January 13, 2017 ___________ Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law and the criminal procedure law, in relation to cyber crimes THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 1, 2, 3 and 4 of section 155.00 of the penal law, subdivision 1 as amended by chapter 514 of the laws of 1986, are amended and two new subdivisions 10 and 11 are added to read as follows: 1. "Property" means any money, personal property, real property, computer data, computer program, PERSONAL IDENTIFYING INFORMATION, SECRET SCIENTIFIC MATERIAL, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation. 2. "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. WITH REGARD TO PERSONAL IDENTI- FYING INFORMATION, COMPUTER DATA OR COMPUTER PROGRAM, OBTAIN INCLUDES DUPLICATING, RECORDING, COPYING, DOWNLOADING, UPLOADING OR PRINTING OUT THE INFORMATION, DATA, OR PROGRAM, OR OBTAINING A PHYSICAL OBJECT CONTAINING SUCH INFORMATION. WITH REGARD TO SERVICE, OBTAIN INCLUDES, BUT IS NOT LIMITED TO, USING OR ACCESSING A SERVICE. 3. "Deprive." To "deprive" another of property means (a) to withhold it or cause it to be withheld from him OR HER permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him OR HER, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property. WHEN THE PROPERTY IS PERSONAL IDENTIFYING INFORMATION, COMPUTER DATA OR COMPUTER PROGRAM, TO DEPRIVE ANOTHER OF ITS MEANS TO OBTAIN IT OR CAUSE A THIRD PERSON TO EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD03876-01-7 S. 2406 2 OBTAIN IT UNDER SUCH CIRCUMSTANCES THAT A SUBSTANTIAL PORTION OF THE ECONOMIC BENEFIT OR VALUE OF HAVING CONTROL OVER IT OR AUTHORITY OVER ITS USE IS LOST TO AN OWNER. TO DEPRIVE ANOTHER OF SERVICE IS TO USE OR ACCESS A SERVICE OR CAUSE A THIRD PERSON TO USE OR ACCESS A SERVICE UNDER SUCH CIRCUMSTANCES THAT SOME OF THE ECONOMIC BENEFIT OR VALUE OF HAVING CONTROL OR AUTHORITY OVER PROVIDING THE SERVICE IS LOST TO AN OWNER. 4. "Appropriate." To "appropriate" property of another to oneself or a third person means (a) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person. WHEN THE PROPERTY IS PERSONAL IDENTIFYING INFORMATION, COMPUTER DATA OR COMPUTER PROGRAM OF ANOTHER, TO APPROPRIATE IT TO ONESELF OR A THIRD PERSON MEANS TO OBTAIN IT UNDER SUCH CIRCUMSTANCES AS TO ACQUIRE THE ABILITY TO USE IT OR DISPOSE OF IT TO THE ECONOMIC BENEFIT OF ONESELF OR A THIRD PERSON OR TO THE ECONOMIC DETRIMENT OR DAMAGE OF AN OWNER. TO APPROPRIATE A SERVICE PROVIDED BY ANOTHER TO ONESELF OR A THIRD PERSON MEANS TO USE OR ACCESS THE SERVICE UNDER SUCH CIRCUMSTANCES AS TO ACQUIRE THE ABILITY TO USE IT TO THE ECONOMIC BENEFIT OF ONESELF OR A THIRD PERSON OR TO THE ECONOMIC DETRI- MENT OR DAMAGE OF AN OWNER. 10. "COMPUTER PROGRAM" MEANS AN ORDERED SET OF DATA REPRESENTING CODED INSTRUCTIONS OR STATEMENTS THAT WHEN EXECUTED BY THE COMPUTER, CAUSE THE COMPUTER TO PROCESS DATA OR DIRECT THE COMPUTER TO PERFORM ONE OR MORE COMPUTER OPERATIONS OR BOTH AND MAY BE IN ANY FORM, INCLUDING MAGNETIC STORAGE MEDIA, OPTICAL MEDIA, COMPUTING DEVICES, PUNCHED CARDS, OR STORED INTERNALLY IN THE MEMORY OF THE COMPUTER. 11. "COMPUTER DATA" MEANS A REPRESENTATION OF INFORMATION, KNOWLEDGE, FACTS, CONCEPT OR INSTRUCTIONS WHICH ARE BEING PROCESSED, OR HAVE BEEN PROCESSED IN A COMPUTER AND MAY BE IN ANY FORM INCLUDING MAGNETIC STOR- AGE MEDIA, PUNCHED CARDS, OR STORED INTERNALLY IN THE MEMORY OF THE COMPUTER. § 2. Paragraph (c) of subdivision 2 of section 155.05 of the penal law is amended and a new paragraph (f) is added to read as follows: (c) By committing the crime of issuing a bad check, as defined in section 190.05, OR BY OBTAINING PROPERTY OR SERVICE BY USING OR PRESENT- ING A FORM OF PAYMENT OR PERSONAL IDENTIFYING INFORMATION THE ACTOR KNOWS HE OR SHE IS NOT AUTHORIZED TO USE OR KNOWS IS EXPIRED OR FORGED OR OTHERWISE NOT VALID; (F) BY THEFT OF SERVICE. THEFT OF SERVICE MEANS EITHER: (I) USING OR ACCESSING A SERVICE IN A MANNER THAT OTHERWISE REQUIRES PAYMENT AND INTENTIONALLY FAILING TO PAY FOR SUCH USE OR ACCESS BY EITHER TAMPERING WITHOUT AUTHORITY WITH A DELIVERY, PAYMENT, OR MEASUREMENT DEVICE OR MECHANISM, OR BY ENTERING OR LEAVING PREMISES WHERE THE SERVICE IS PROVIDED BY STEALTH OR BY EVADING A PHYSICAL BARRIER, OR (II) USING OR ACCESSING A SERVICE IN A MANNER THAT OTHERWISE REQUIRES PAYMENT OR THE PRESENTATION OF PERSONAL IDENTIFYING INFORMATION AND USING OR PRESENTING A FORM OF PAYMENT OR PERSONAL IDENTIFYING INFORMATION THE ACTOR KNOWS HE OR SHE IS NOT AUTHORIZED TO USE OR KNOWS IS EXPIRED OR FORGED OR OTHER- WISE NOT VALID. § 3. Subdivision 1 of section 155.20 of the penal law is amended to read as follows: 1. Except as otherwise specified in this section, value means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of S. 2406 3 the property within a reasonable time after the crime. WITH REGARD TO SERVICE, VALUE SHALL ALSO MEAN THE COST OF PROVIDING THE SERVICE AT THE TIME OF THE CRIME, AND WITH REGARD TO THE VALUE OF COMPUTER DATA OR COMPUTER PROGRAM VALUE SHALL MEAN THE REPLACEMENT COST OR THE MARKET VALUE AT THE TIME AND PLACE OF THE CRIME, OR THE COST TO WRITE OR DEVEL- OP SUCH DATA AND/OR PROGRAM, WHICHEVER IS GREATER. § 4. The penal law is amended by adding a new section 155.23 to read as follows: § 155.23 PETIT THEFT OF SERVICE. A PERSON IS GUILTY OF PETIT THEFT OF SERVICE WHEN HE OR SHE STEALS A SERVICE. PETIT THEFT OF SERVICE IS A CLASS B MISDEMEANOR. § 5. Section 155.25 of the penal law is amended to read as follows: § 155.25 Petit larceny. A person is guilty of petit larceny when he OR SHE steals property, OR STEALS A SERVICE AND THE VALUE OF THE SERVICE EXCEEDS FIVE HUNDRED DOLLARS. Petit larceny is a class A misdemeanor. § 6. The opening paragraph and subdivisions 1, 4 and 6 of section 155.30 of the penal law, the opening paragraph and subdivisions 1 and 6 as amended by chapter 515 of the laws of 1986, subdivision 4 as amended by chapter 556 of the laws of 1987, are amended to read as follows: A person is guilty of grand larceny in the fourth degree when he OR SHE steals property OR A SERVICE and when: 1. The value of the property OR SERVICE exceeds one thousand dollars; or 4. The property consists of a credit card or debit card OR PERSONAL IDENTIFYING INFORMATION; or 6. The property OR SERVICE, regardless of its nature and value, is obtained by extortion; or § 7. Section 155.35 of the penal law, as amended by chapter 464 of the laws of 2010, is amended to read as follows: § 155.35 Grand larceny in the third degree. A person is guilty of grand larceny in the third degree when he or she steals property OR A SERVICE and: 1. when the value of the property exceeds three thousand dollars, or 2. the property is an automated teller machine or the contents of an automated teller machine, OR 3. THE PROPERTY IS PERSONAL IDENTIFYING INFORMATION OF TWENTY-FIVE OR MORE PERSONS. Grand larceny in the third degree is a class D felony. § 8. Section 155.40 of the penal law, as amended by chapter 515 of the laws of 1986, is amended to read as follows: § 155.40 Grand larceny in the second degree. A person is guilty of grand larceny in the second degree when he OR SHE steals property OR A SERVICE and when: 1. The value of the property OR SERVICE exceeds fifty thousand dollars; or 2. The property OR SERVICE, regardless of its nature and value, is obtained by extortion committed by instilling in the victim a fear that the actor or another person will (a) cause physical injury to some person in the future, or (b) cause damage to property, or (c) use or abuse his OR HER position as a public servant by engaging in conduct within or related to his OR HER official duties, or by failing or refus- ing to perform an official duty, in such manner as to affect some person adversely, OR S. 2406 4 3. THE PROPERTY IS PERSONAL IDENTIFYING INFORMATION OF ONE HUNDRED OR MORE PERSONS. Grand larceny in the second degree is a class C felony. § 9. Section 155.42 of the penal law, as added by chapter 515 of the laws of 1986, is amended to read as follows: § 155.42 Grand larceny in the first degree. A person is guilty of grand larceny in the first degree when he OR SHE steals property OR A SERVICE and when the value of the property OR SERVICE exceeds one million dollars; OR THE PROPERTY IS PERSONAL IDENTI- FYING INFORMATION OF ONE THOUSAND OR MORE PERSONS. Grand larceny in the first degree is a class B felony. § 10. Subdivisions 5 and 8 of section 156.00 of the penal law, subdi- vision 5 as amended and subdivision 8 as added by chapter 558 of the laws of 2006, are amended to read as follows: 5. "Computer material" is property and means any computer data or computer program which: (a) contains records of the medical history or medical treatment of an identified or readily identifiable individual or individuals. This term shall not apply to the gaining access to or duplication solely of the medical history or medical treatment records of a person by that person or by another specifically authorized by the person whose records are gained access to or duplicated; or (b) contains records maintained by the state or any political subdivi- sion thereof or any governmental instrumentality within the state which contains any information concerning a person, as defined in subdivision seven of section 10.00 of this chapter, which because of name, number, symbol, mark or other identifier, can be used to identify the person and which is otherwise prohibited by law from being disclosed. This term shall not apply to the gaining access to or duplication solely of records of a person by that person or by another specifically authorized by the person whose records are gained access to or duplicated; or (c) is not and is not intended to be available to anyone other than the person or persons rightfully in possession thereof or selected persons having access thereto with his, her or their consent and which [accords or may accord such rightful possessors an advantage over competitors or other persons who do not have knowledge or the benefit thereof] ANY PERSON, OTHER THAN A PERSON RIGHTFULLY IN POSSESSION, KNOWS OR SHOULD KNOW IS NOT INTENDED TO BE AVAILABLE TO HIM OR HER. 8. "Without authorization" means to use or to access a computer, computer service or computer network without the permission of the owner or lessor or someone licensed or privileged by the owner or lessor where such person knew that his or her use or access was without permission or after actual notice to such person that such use or access was without permission, OR THAT SUCH USE OR ACCESS WAS FOR PURPOSES OTHER THAN THOSE FOR WHICH PERMISSION WAS GRANTED BY THE OWNER, LESSOR, OR SOMEONE LICENSED OR PRIVILEGED BY SUCH OWNER OR LESSOR. It shall also mean the access of a computer service by a person without permission where such person knew that such access was without permission or after actual notice to such person, that such access was without permission. Proof that such person used or accessed a computer, computer service or computer network through the knowing use of a set of instructions, code or computer program that bypasses, defrauds or otherwise circum- vents a security measure installed or used with the user's authorization on the computer, computer service or computer network shall be presump- tive evidence that such person used or accessed such computer, computer service or computer network without authorization. S. 2406 5 § 11. Section 156.20 of the penal law, as amended by chapter 558 of the laws of 2006, is amended to read as follows: § 156.20 Computer tampering in the [fourth] FIFTH degree. A person is guilty of computer tampering in the [fourth] FIFTH degree when he or she uses, causes to be used, or accesses a computer, computer service, or computer network without authorization and he or she inten- tionally alters in any manner or destroys computer data or a computer program of another person. Computer tampering in the [fourth] FIFTH degree is a class A misdemea- nor. § 12. Section 156.25 of the penal law, as amended by chapter 89 of the laws of 1993, subdivision 2 as amended by chapter 376 of the laws of 1997, is amended to read as follows: § 156.25 Computer tampering in the [third] FOURTH degree. A person is guilty of computer tampering in the third degree when he OR SHE commits the crime of computer tampering in the [fourth] FIFTH degree and: 1. he OR SHE does so with an intent to commit or attempt to commit or further the commission of any felony; or 2. he OR SHE has been previously convicted of any crime under this article or subdivision eleven of section 165.15 of this chapter; or 3. he OR SHE intentionally alters in any manner or destroys computer material; or 4. he OR SHE intentionally alters in any manner or destroys computer data or a computer program so as to cause damages in an aggregate amount exceeding one thousand dollars. Computer tampering in the [third] FOURTH degree is a class E felony. § 13. Section 156.26 of the penal law, as amended by chapter 590 of the laws of 2008, is amended to read as follows: § 156.26 Computer tampering in the [second] THIRD degree. A person is guilty of computer tampering in the [second] THIRD degree when he or she commits the crime of computer tampering in the fourth degree and he or she intentionally alters in any manner or destroys: 1. computer data or a computer program so as to cause damages in an aggregate amount exceeding three thousand dollars; or 2. computer material that contains records of the medical history or medical treatment of an identified or readily identifiable individual or individuals and as a result of such alteration or destruction, such individual or individuals suffer serious physical injury, and he or she is aware of and consciously disregards a substantial and unjustifiable risk that such serious physical injury may occur. Computer tampering in the [second] THIRD degree is a class D felony. § 14. Section 156.27 of the penal law, as added by chapter 89 of the laws of 1993, is amended to read as follows: § 156.27 Computer tampering in the [first] SECOND degree. A person is guilty of computer tampering in the [first] SECOND degree when he OR SHE commits the crime of computer tampering in the fourth degree and he OR SHE intentionally alters in any manner or destroys computer data or a computer program so as to cause damages in an aggre- gate amount exceeding fifty thousand dollars. Computer tampering in the [first] SECOND degree is a class C felony. § 15. The penal law is amended by adding a new section 156.28 to read as follows: § 156.28 COMPUTER TAMPERING IN THE FIRST DEGREE. A PERSON IS GUILTY OF COMPUTER TAMPERING IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME OF COMPUTER TAMPERING IN THE FIFTH DEGREE AND S. 2406 6 HE OR SHE INTENTIONALLY ALTERS IN ANY MANNER OR DESTROYS COMPUTER DATA OR A COMPUTER PROGRAM AND THEREBY CAUSES DAMAGES IN AN AGGREGATE AMOUNT OF ONE MILLION DOLLARS OR MORE. COMPUTER TAMPERING IN THE FIRST DEGREE IS A CLASS B FELONY. § 16. The penal law is amended by adding five new sections 156.60, 156.65, 156.70, 156.75 and 156.80 to read as follows: § 156.60 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE. A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE WHEN HE OR SHE ACTING ALONE OR WITH OTHERS KNOWINGLY CAUSES THE TRANSMISSION OF A PROGRAM, INFORMATION, CODE, OR COMMAND, OR OTHER ELECTRONIC COMMU- NICATION, AND AS A RESULT OF SUCH CONDUCT, INTENTIONALLY MAKES THE COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK TEMPO- RARILY OR INDEFINITELY UNAVAILABLE TO ITS INTENDED USERS. DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE IS A CLASS A MISDEMEA- NOR. § 156.65 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FOURTH DEGREE. A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FOURTH DEGREE WHEN HE OR SHE COMMITS THE CRIME OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE AND THEREBY CAUSES DAMAGES OR LOSS THAT EXCEEDS ONE THOUSAND DOLLARS TO ANOTHER PERSON OR PERSONS, AND/OR ONE OR MORE FINANCIAL INSTITUTIONS AND/OR OTHER BUSINESSES. DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FOURTH DEGREE IS A CLASS E FELONY. § 156.70 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE THIRD DEGREE. A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER IN THE THIRD DEGREE WHEN HE OR SHE COMMITS THE CRIME OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE AND THEREBY CAUSES DAMAGES OR LOSS THAT EXCEEDS THREE THOUSAND DOLLARS TO ANOTHER PERSON OR PERSONS, AND/OR TO ONE OR MORE FINANCIAL INSTITUTIONS AND/OR OTHER BUSINESSES, OR COMMITS OR ATTEMPTS TO COMMIT A CLASS D FELONY OR HIGHER LEVEL CRIME OR ACTS AS AN ACCESSORY TO THE COMMISSION OF A CLASS D OR HIGHER LEVEL FELONY. DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE THIRD DEGREE IS A CLASS D FELONY. § 156.75 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE SECOND DEGREE. A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE SECOND DEGREE WHEN HE OR SHE COMMITS THE CRIME OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE AND THEREBY CAUSES DAMAGES OR LOSS THAT EXCEEDS FIFTY THOUSAND DOLLARS TO ANOTHER PERSON OR PERSONS, AND/OR FINANCIAL INSTITUTIONS AND/OR OTHER BUSINESSES, OR COMMITS OR ATTEMPTS TO COMMIT A CLASS C FELONY OR HIGHER LEVEL CRIME OR ACTS AS AN ACCESSORY IN THE COMMISSION OF A CLASS C OR HIGHER LEVEL FELONY. DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE SECOND DEGREE IS A CLASS C FELONY. § 156.80 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIRST DEGREE. S. 2406 7 A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE AND THEREBY CAUSES DAMAGES OR LOSS THAT EXCEEDS ONE MILLION DOLLARS TO ANOTHER PERSON OR PERSONS, AND/OR ONE OR MORE FINANCIAL INSTITUTIONS AND/OR OTHER BUSINESSES, OR COMMITS OR ATTEMPTS TO COMMIT A CLASS B FELONY OR HIGHER LEVEL CRIME OR ACTS AS AN ACCESSORY IN THE COMMISSION ON A CLASS B OR HIGHER LEVEL FELONY. DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIRST DEGREE IS A CLASS B FELONY. § 17. Subdivision 2 of section 165.45 of the penal law, as amended by chapter 81 of the laws of 1995, is amended to read as follows: 2. The property consists of a credit card, debit card or public bene- fit card, OR PERSONAL IDENTIFYING INFORMATION AS DEFINED IN SECTION 190.77 OF THIS CHAPTER; or § 18. Section 165.50 of the penal law, as amended by chapter 515 of the laws of 1986, is amended to read as follows: § 165.50 Criminal possession of stolen property in the third degree. A person is guilty of criminal possession of stolen property in the third degree when he OR SHE knowingly possesses stolen property, with intent to benefit himself OR HERSELF or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars, OR THE PROPERTY CONSISTED OF THE PERSONAL IDENTIFYING INFORMATION OF TWENTY-FIVE OR MORE PERSONS. Criminal possession of stolen property in the third degree is a class D felony. § 19. Section 165.52 of the penal law, as added by chapter 515 of the laws of 1986, is amended to read as follows: § 165.52 Criminal possession of stolen property in the second degree. A person is guilty of criminal possession of stolen property in the second degree when he OR SHE knowingly possesses stolen property, with intent to benefit himself OR HERSELF or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds fifty thousand dollars, OR THE PROPERTY CONSISTS OF THE PERSONAL IDENTIFYING INFORMATION OF ONE HUNDRED OR MORE PERSONS. Criminal possession of stolen property in the second degree is a class C felony. § 20. Section 165.54 of the penal law, as added by chapter 515 of the laws of 1986, is amended to read as follows: § 165.54 Criminal possession of stolen property in the first degree. A person is guilty of criminal possession of stolen property in the first degree when he OR SHE knowingly possesses stolen property, with intent to benefit himself OR HERSELF or a person other than an owner thereof or to impede the recovery by an owner, and when the value of the property exceeds one million dollars, OR THE PROPERTY CONSISTS OF THE PERSONAL IDENTIFYING INFORMATION OF ONE THOUSAND OR MORE PERSONS. Criminal possession of stolen property in the first degree is a class B felony. § 21. 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: § 190.60 Scheme to defraud in the [second] FIFTH degree. S. 2406 8 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 from more than one person by false or fraudulent pretenses, representations or promises, and so obtains property 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, 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. § 22. The penal law is amended by adding three new sections 190.62, 190.63 and 190.64 to read as follows: § 190.62 SCHEME TO DEFRAUD IN THE FOURTH DEGREE. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FOURTH DEGREE WHEN HE OR SHE ENGAGES IN A SCHEME TO DEFRAUD IN THE FIFTH DEGREE, AND 1. INTENDS TO OBTAIN PROPERTY OR SERVICE FROM TEN OR MORE PERSONS; OR 2. THE VALUE OF THE PROPERTY OR SERVICE OBTAINED EXCEEDS ONE THOUSAND DOLLARS; OR 3. INTENDS TO OBTAIN AND DOES OBTAIN PROPERTY OR SERVICE FROM AT LEAST ONE VULNERABLE ELDERLY PERSON AS DEFINED IN SECTION 260.31 OF THIS CHAP- TER. SCHEME TO DEFRAUD IN THE FOURTH DEGREE IS A CLASS E FELONY. § 190.63 SCHEME TO DEFRAUD IN THE THIRD DEGREE. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE THIRD DEGREE WHEN HE OR SHE ENGAGES IN A SCHEME TO DEFRAUD IN THE FIFTH DEGREE, AND 1. INTENDS TO OBTAIN PROPERTY OR SERVICE FROM TWENTY-FIVE OR MORE PERSONS; OR 2. THE VALUE OF THE PROPERTY OR SERVICE OBTAINED EXCEEDS THREE THOU- SAND DOLLARS. SCHEME TO DEFRAUD IN THE THIRD DEGREE IS A CLASS D FELONY. § 190.64 SCHEME TO DEFRAUD IN THE SECOND DEGREE. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE SECOND DEGREE WHEN HE OR SHE ENGAGES IN A SCHEME TO DEFRAUD IN THE FIFTH DEGREE, AND 1. INTENDS TO OBTAIN PROPERTY OR SERVICE FROM ONE HUNDRED OR MORE PERSONS; OR 2. THE VALUE OF THE PROPERTY OR SERVICE OBTAINED EXCEEDS FIFTY THOU- SAND DOLLARS. SCHEME TO DEFRAUD IN THE SECOND DEGREE IS A CLASS C FELONY. § 23. Section 190.65 of the penal law, as amended by chapter 291 of the laws of 2008, is amended to read as follows: § 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 CONDUCT CONSTITUTING a scheme [consti- tuting a systematic ongoing course of conduct with intent] to defraud [ten] IN THE FIFTH DEGREE AND INTENDS TO OBTAIN PROPERTY OR SERVICE FROM ONE THOUSAND or more persons or to obtain property from ten or more persons by false or fraudulent pretenses, representations or promises, and so obtains property 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 from more than one person by false or fraudulent pretenses, representations or promises, and so obtains] AND VALUE OF THE property [with a value in excess of one thousand dollars from one or more such persons; or (c) engages in a scheme constituting a systematic ongoing course of conduct S. 2406 9 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, 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, but it shall not be necessary to prove the identity of any other intended victim, provided that in any prosecution 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] OR SERVICE OBTAINED EXCEEDS ONE MILLION DOLLARS. Scheme to defraud in the first degree is a class [E] B felony. § 24. Section 190.78 of the penal law, as added by chapter 619 of the laws of 2002, is amended to read as follows: § 190.78 Identity theft in the [third] FIFTH degree. A person is guilty of identity theft in the [third] FIFTH degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying informa- tion of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person or causes financial loss to such person or to another person or persons; or 2. commits a class A misdemeanor or higher level crime. Identity theft in the [third] FIFTH degree is a class A misdemeanor. § 25. Section 190.79 of the penal law, as added by chapter 619 of the laws of 2002, subdivision 4 as amended by chapter 279 of the laws of 2008, is amended to read as follows: § 190.79 Identity theft in the [second] FOURTH degree. A person is guilty of [identify] IDENTITY theft in the [second] FOURTH degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds five hundred dollars; or 2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds five hundred dollars; or 3. commits or attempts to commit a felony or acts as an accessory to the commission of a felony; or 4. commits the crime of identity theft in the [third] FIFTH degree as defined in section 190.78 of this article and has been previously convicted within the last [five years of identity theft in the third degree as defined in section 190.78, identity theft in the second degree as defined in this section, identity theft in the first degree as defined in section 190.80, unlawful possession of personal identifica- tion information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, unlawful possession of a skimmer device in the second degree as S. 2406 10 defined in section 190.85, unlawful possession of a skimmer device in the first degree as defined in section 190.86, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chapter] TEN YEARS, EXCLUDING ANY TIME PERIOD DURING WHICH SUCH PERSON WAS INCARCERATED FOR ANY REASON, OF ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR OF ANY LARCENY CRIME AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER; OR HE OR SHE KNOWINGLY AND WITH INTENT TO DEFRAUD ASSUMES THE IDENTITY OF THREE OR MORE PERSONS BY PRESENTING HIMSELF OR HERSELF AS THOSE PERSONS OR BY ACTING AS THOSE PERSONS OR BY USING PERSONAL IDENTIFYING INFORMATION OF ANY OF THOSE PERSONS AND THEREBY OBTAINS GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF AT LEAST ONE SUCH PERSON, OR CAUSES FINANCIAL LOSS TO AT LEAST ONE SUCH PERSON OR TO ANOTHER PERSON OR PERSONS. Identity theft in the [second] FOURTH degree is a class E felony. § 26. Section 190.80 of the penal law, as added by chapter 619 of the laws of 2002, subdivision 4 as amended by chapter 279 of the laws of 2008, is amended to read as follows: § 190.80 Identity theft in the [first] THIRD degree. A person is guilty of identity theft in the [first] THIRD degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying informa- tion of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds two thou- sand dollars; or 2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds two thousand dollars; or 3. commits or attempts to commit a class D felony or higher level crime or acts as an accessory in the commission of a class D or higher level felony; or 4. commits the crime of identity theft in the [second] FOURTH degree as defined in section 190.79 of this article and has been previously convicted within the last [five years of identity theft in the third degree as defined in section 190.78, identity theft in the second degree as defined in section 190.79, identity theft in the first degree as defined in this section, unlawful possession of personal identification information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identifi- cation information in the first degree as defined in section 190.83, unlawful possession of a skimmer device in the second degree as defined in section 190.85, unlawful possession of a skimmer device in the first degree as defined in section 190.86, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chapter] TEN YEARS, EXCLUDING ANY TIME PERIOD DURING WHICH SUCH PERSON WAS INCARCERATED FOR ANY REASON, OF ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR OF ANY LARCENY CRIME AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS S. 2406 11 CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER; OR ASSUMES THE IDENTITY OF TEN OR MORE PERSONS BY PRESENTING HIMSELF OR HERSELF AS THOSE OTHER PERSONS, OR BY ACTING AS THOSE OTHER PERSONS, OR BY USING PERSONAL IDENTIFYING INFORMATION OF THOSE OTHER PERSONS, AND THEREBY OBTAINING GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF AT LEAST ONE SUCH PERSON, OR CAUSES FINANCIAL LOSS TO AT LEAST ONE SUCH PERSON, TO ANOTHER PERSON OR PERSONS. Identity theft in the [first] THIRD degree is a class D felony. § 27. Section 190.80-a of the penal law, as added by chapter 226 of the laws of 2008, is renumbered section 190.80-c and amended, and two new sections 190.80-a and 190.80-b are added to read as follows: § 190.80-A IDENTITY THEFT IN THE SECOND DEGREE. A PERSON IS GUILTY OF IDENTITY THEFT IN THE SECOND DEGREE WHEN: 1. HE OR SHE KNOWINGLY AND WITH INTENT TO DEFRAUD ASSUMES THE IDENTITY OF ANOTHER PERSON BY PRESENTING HIMSELF OR HERSELF AS THAT OTHER PERSON, OR BY ACTING AS THAT OTHER PERSON OR BY USING PERSONAL IDENTIFYING INFORMATION OF THAT OTHER PERSON, AND THEREBY: A. OBTAINS GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF SUCH OTHER PERSON IN AN AGGREGATE AMOUNT THAT EXCEEDS TWENTY- FIVE THOUSAND DOLLARS; OR B. CAUSES FINANCIAL LOSS TO SUCH PERSON TO ANOTHER PERSON OR PERSONS IN AN AGGREGATE AMOUNT THAT EXCEEDS TWENTY-FIVE THOUSAND DOLLARS; OR C. COMMITS OR ATTEMPTS TO COMMIT A CLASS C FELONY OR HIGHER LEVEL CRIME OR ACTS AS AN ACCESSORY IN THE COMMISSION OF A CLASS C OR HIGHER LEVEL FELONY; OR D. COMMITS THE CRIME OF IDENTITY THEFT IN THE THIRD DEGREE AS DEFINED IN SECTION 190.80 OF THIS ARTICLE AND HAS BEEN PREVIOUSLY CONVICTED WITHIN THE LAST TEN YEARS, EXCLUDING ANY TIME DURING WHICH SUCH PERSON WAS INCARCERATED FOR ANY REASON, OF ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR ANY LARCENY CRIME AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER; OR 2. ASSUMES THE IDENTITY OF TWENTY-FIVE OR MORE PERSON BY PRESENTING HIMSELF OR HERSELF AS THOSE OTHER PERSONS, OR BY ACTING AS THOSE OTHER PERSONS, OR BY USING PERSONAL IDENTIFYING INFORMATION OF THOSE OTHER PERSONS, AND THEREBY OBTAINS GOODS, MONEY, PROPERTY OR OR SERVICES OR USES CREDIT IN THE NAME OF AT LEAST ONE SUCH PERSON, OR CAUSES FINANCIAL LOSS TO AT LEAST ONE SUCH PERSON, OR TO ANOTHER PERSON OR PERSONS. IDENTITY THEFT IN THE SECOND DEGREE OF A CLASS C FELONY. § 190.80-B IDENTITY THEFT IN THE FIRST DEGREE. A PERSON IS GUILTY OF IDENTITY THEFT IN THE FIRST DEGREE WHEN: 1. HE OR SHE KNOWINGLY AND WITH INTENT TO DEFRAUD ASSUMES THE IDENTITY OF ANOTHER PERSON BY PRESENTING HIMSELF OR HERSELF AS THAT OTHER PERSON, OR BY ACTING AS THAT OTHER PERSON OR BY USING PERSONAL IDENTIFYING INFORMATION, AND THEREBY: A. OBTAINS GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF SUCH OTHER PERSON IN AN AGGREGATE AMOUNT THAT EXCEEDS FIVE HUNDRED THOUSAND DOLLARS; OR B. CAUSES FINANCIAL LOSS TO SUCH PERSON OR TO ANOTHER PERSON OR PERSONS IN AN AGGREGATE AMOUNT THAT EXCEEDS FIVE HUNDRED THOUSAND DOLLARS; OR C. COMMITS OR ATTEMPTS TO COMMIT A CLASS B FELONY OR HIGHER LEVEL CRIME OR ACT AS AN ACCESSORY IN THE COMMISSION OF A CLASS B OR HIGHER LEVEL FELONY; OR S. 2406 12 D. COMMITS THE CRIME OF IDENTITY THEFT IN THE SECOND DEGREE AS DEFINED IN SECTION 190.80-A OF THIS ARTICLE AND HAS BEEN PREVIOUSLY CONVICTED WITHIN THE LAST TEN YEARS, EXCLUDING ANY TIME DURING WHICH SUCH PERSON WAS INCARCERATED FOR ANY REASON, OF ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR OF ANY LARCENY CRIME AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER; OR 2. ASSUMES THE IDENTITY OF ONE HUNDRED OR MORE PERSONS BY PRESENTING HIMSELF OR HERSELF AS THOSE OTHER PERSONS, OR BY ACTING AS THOSE OTHER PERSONS, OR BY USING PERSONAL IDENTIFYING INFORMATION OF THOSE OTHER PERSONS, AND THEREBY OBTAINS GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF A LEAST ON SUCH PERSON, OR CAUSES FINANCIAL LOSS TO AT LEAST ON SUCH PERSON, OR TO ANOTHER PERSON OR PERSONS. IDENTITY THEFT IN THE FIRST DEGREE IS A CLASS B FELONY. § 190.80-c Aggravated identity theft. A person is guilty of aggravated identity theft when he or she know- ingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and knows that such person is a member of the armed forc- es, and knows that such member is presently deployed outside of the continental United States OR KNOWS THAT SUCH PERSON IS A VULNERABLE ELDERLY PERSON OR A PHYSICALLY DISABLED PERSON AS SUCH TERMS ARE DEFINED IN SECTION 260.31 OF THIS CHAPTER AND: 1. thereby obtains goods, money, property or services or uses credit in the name of such [member of the armed forces] INDIVIDUAL in an aggre- gate amount that exceeds five hundred dollars; or 2. thereby causes financial loss to such [member of the armed forces] INDIVIDUAL in an aggregate amount that exceeds five hundred dollars. Aggravated identity theft is a class D felony. § 28. Sections 190.85 and 190.86 of the penal law, as added by chapter 279 of the laws of 2008, are amended to read as follows: § 190.85 [Unlawful] CRIMINAL possession of a skimmer device in the second degree. 1. A person is guilty of [unlawful] CRIMINAL possession of a skimmer device in the second degree when he or she possesses a skimmer device with the intent that such device be used in furtherance of the commis- sion of the crime of identity theft [or unlawful possession of personal identification information] as defined in this article, LARCENY AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER; OR CRIMINAL POSSESSION OF STOLEN PROPERTY AS DEFINED IN ARTICLE ONE HUNDRED SIXTY- FIVE OF THIS CHAPTER. 2. For purposes of this article, "skimmer device" means a device designed or adapted to obtain personal identifying information from a credit card, debit card, public benefit card, access card or device, or other card or device that contains personal identifying information. [Unlawful] CRIMINAL possession of a skimmer device in the second degree is a class [A misdemeanor] D FELONY. § 190.86 [Unlawful] CRIMINAL possession of a skimmer device in the first degree. A person is guilty of [unlawful] CRIMINAL possession of a skimmer device in the first degree when he or she commits the crime of [unlaw- ful] CRIMINAL possession of a skimmer device in the second degree and he or she has been previously convicted within the last [five years of identity theft in the third degree as defined in section 190.78, identi- S. 2406 13 ty theft in the second degree as defined in section 190.79, identity theft in the first degree as defined in section 190.80, unlawful possession of personal identification information in the third degree as defined in section 190.81, unlawful possession of personal identifica- tion information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, unlawful possession of a skimmer device in the second degree as defined in section 190.85, unlawful possession of a skimmer device in the first degree as defined in this section, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chap- ter] TEN YEARS, EXCLUDING ANY TIME DURING WHICH SUCH PERSON WAS INCAR- CERATED FOR ANY REASON, FOR ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR OF ANY LARCENY CRIME AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER. [Unlawful] CRIMINAL possession of a skimmer device in the first degree is a class [E] C felony. § 29. Paragraph (l) of subdivision 4 of section 20.40 of the criminal procedure law, as amended by section 3 of subpart C of part C of chapter 97 of the laws of 2011, is amended to read as follows: (l) An offense of identity theft, LARCENY, CRIMINAL POSSESSION OF STOLEN PROPERTY, or unlawful possession of personal identifying informa- tion, IN WHICH THE PROPERTY STOLEN OR CRIMINALLY POSSESSED IS PERSONAL IDENTIFYING INFORMATION OR COMPUTER DATA OR COMPUTER PROGRAM, and all criminal acts committed as part of the same criminal transaction as defined in subdivision two of section 40.10 of this chapter may be pros- ecuted (i) in any county in which part of the offense took place regard- less of whether the defendant was actually present in such county, or (ii) in the county in which the person who suffers financial loss resided at the time of the commission of the offense, or (iii) in the county where the person whose personal identifying information was used in the commission of the offense resided at the time of the commission of the offense. The law enforcement agency of any such county shall take a police report of the matter and provide the complainant with a copy of such report at no charge. § 30. Subdivision 2 of section 690.05 of the criminal procedure law, as amended by chapter 504 of the laws of 1991, the opening paragraph as amended by chapter 424 of the laws of 1998, is amended to read as follows: 2. A search warrant is a court order and process directing a police officer, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT OF THE KIND DESCRIBED IN SUBDIVISION ONE OF THIS SECTION, to conduct: (a) a search of designated premises, or of a designated vehicle, or of a designated person, OR OF AN ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE, for the purpose of seizing designated property or kinds of property, and to deliver any property so obtained to the court which issued the warrant; or (b) a search of a designated premises for the purpose of searching for and arresting a person who is the subject of: (i) a warrant of arrest issued pursuant to this chapter, a superior court warrant of arrest issued pursuant to this chapter, or a bench warrant for a felony issued S. 2406 14 pursuant to this chapter, where the designated premises is the dwelling of a third party who is not the subject of the arrest warrant; or (ii) a warrant of arrest issued by any other state or federal court for an offense which would constitute a felony under the laws of this state, where the designated premises is the dwelling of a third party who is not the subject of the arrest warrant. AS USED IN THIS SECTION, THE TERM "ELECTRONIC COMMUNICATIONS SERVICE" MEANS ANY SERVICE WHICH PROVIDES TO USERS THEREOF THE ABILITY TO SEND OR RECEIVE WIRE OR ELECTRONIC COMMUNICATIONS. "REMOTE COMPUTING SERVICE" MEANS ANY SERVICE WHICH PROVIDES TO USERS THEREOF COMPUTER STORAGE OR PROCESSING SERVICES BY MEANS OF AN ELECTRONIC COMMUNICATIONS SYSTEM. THE TERMS "ELECTRONIC COMMUNICATION SERVICE" AND "REMOTE COMPUTING SERVICE" SHALL BE CONSTRUED IN ACCORDANCE WITH THE ELECTRONIC COMMUNICATIONS PRIVACY ACT IN CHAPTER 121 (COMMENCING WITH SECTION 2701) OF PART I OF TITLE 18 OF THE UNITED STATE CODE ANNOTATED. THIS SECTION SHALL NOT APPLY TO CORPORATIONS THAT DO NOT PROVIDE THOSE SERVICES TO THE GENERAL PUBLIC. § 31. Subdivision 1 of section 690.15 of the criminal procedure law is amended to read as follows: 1. A search warrant must direct a search of one or more of the following: (a) A designated or described place or premises; (b) A designated or described vehicle, as that term is defined in section 10.00 of the penal law; (c) A designated or described person[.]; (D) A DESIGNATED OR DESCRIBED ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE. § 32. Section 690.20 of the criminal procedure law is amended by adding a new subdivision 3 to read as follows: 3. THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION TO THE CONTRARY NOTWITHSTANDING, A SEARCH WARRANT DIRECTING THE SEARCH OF A DESIGNATED OR DESCRIBED ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE, MAY BE EXECUTED ON ANY COMPANY, CORPORATION OR ENTITY WHICH IS HEADQUARTERED OR LOCATED OUTSIDE OF THE STATE OF NEW YORK, AND WHICH CONDUCTS ITS REGULAR BUSINESS IN NEW YORK OR THAT OFFERS ITS SERVICES TO RESIDENTS OF NEW YORK. SERVICE ON ANY SUCH ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE ENTITY MAY BE MADE BY PERSONAL DELIVERY WITHIN THE STATE, BY REGISTERED OR CERTIFIED MAIL. SERVICE MAY ALSO BE MADE BY FACSIMILE OR OTHER ELECTRONIC MEANS IF THE SERVICE IS ACCOMPANIED WITH A CERTIFICATION FROM THE SENDER THAT SUCH SENDER IS A POLICE OFFICER, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT SPECIFIED IN SUBDIVISION ONE OF SECTION 690.05 OF THIS ARTICLE. IF AN ENTITY SHALL REFUSE SUCH SERVICE, THEN SUCH POLICE OFFICER, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT LOCATED WITHIN THE JURISDICTION IN WHICH THE ELEC- TRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE ENTITY IS LOCATED MAY SERVE THE WARRANT UPON SUCH ENTITY. A SEARCH WARRANT ISSUED PURSUANT TO THIS SUBDIVISION SHALL BE LIMITED IN SCOPE TO THE DESIGNATED OR DESCRIBED ELECTRONIC RECORDS OR DATA, EITHER IN PAPER OR ELECTRONIC FORM, THAT ARE MADE, KEPT, OR MAINTAINED BY THE ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE, AND SHALL NOT INCLUDE ANY OTHER PHYSICAL OR TANGIBLE ITEMS. ANY ELECTRONIC RECORDS OR DATA RESPONSIVE TO A SEARCH WARRANT ISSUED PURSUANT TO THIS SUBDIVISION SHALL BE ADMITTED INTO EVIDENCE BEFORE THE GRAND JURY OR AT TRIAL IN ACCORD WITH THE RULES AND LAWS OF NEW YORK STATE. § 33. Section 690.30 of the criminal procedure law is amended by adding a new subdivision 3 to read as follows: S. 2406 15 3. ANY PROVISION OF SUBDIVISION ONE OF THIS SECTION TO THE CONTRARY NOTWITHSTANDING, A SEARCH WARRANT THAT IS ISSUED PURSUANT TO SUBDIVISION THREE OF SECTION 690.20 OF THIS ARTICLE IS DEEMED EXECUTED AT THE TIME THAT SERVICE IS MADE UPON THE ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE ENTITY PURSUANT TO SUCH SUBDIVISION. § 34. Section 496.06 of the penal law, as added by section 14 of subpart A of part H of chapter 55 of the laws of 2014, is amended to read as follows: § 496.06 Public corruption. 1. A person commits the crime of public corruption when: (a) (i) being a public servant he or she commits a specified offense through the use of his or her public office, or (ii) being a person acting in concert with such public servant he or she commits a specified offense, and (b) the state or any political subdivision thereof or any governmental instrumentality within the state is the owner of the property. 2. A "specified offense" is an offense defined by any of the following provisions of this chapter: section 155.25 (petit larceny); section 155.30 (grand larceny in the fourth degree); section 155.35 (grand larceny in the third degree); section 155.40 (grand larceny in the second degree); section 155.42 (grand larceny in the first degree); section 190.60 (scheme to defraud in the [second] FIFTH degree); SECTION 190.62 (SCHEME TO DEFRAUD IN THE FOURTH DEGREE); SECTION 190.63 (SCHEME TO DEFRAUD IN THE THIRD DEGREE); SECTION 190.64 (SCHEME TO DEFRAUD IN THE SECOND DEGREE); or section 190.65 (scheme to defraud in the first degree). § 35. Section 190.77 of the penal law, as amended by chapter 226 of the laws of 2008, subdivision 1 as separately amended by chapter 279 of the laws of 2008, is amended to read as follows: § 190.77 Offenses involving theft of identity; definitions. 1. For the purposes of sections 190.78, 190.79, 190.80 [and], 190.80-a, 190.80-B, 190.80-C and 190.85 of this article "personal iden- tifying information" means a person's name, address, telephone number, date of birth, driver's license number, social security number, place of employment, mother's maiden name, financial services account number or code, savings account number or code, checking account number or code, brokerage account number or code, credit card account number or code, debit card number or code, automated teller machine number or code, taxpayer identification number, computer system password, signature or copy of a signature, electronic signature, unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person, telephone calling card number, mobile identification number or code, electronic serial number or personal identification number, or any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of anoth- er person. 2. For the purposes of sections 190.78, 190.79, 190.80, 190.80-a, 190.80-B, 190.80-C, 190.81, 190.82 and 190.83 of this article: a. "electronic signature" shall have the same meaning as defined in subdivision three of section three hundred two of the state technology law. b. "personal identification number" means any number or code which may be used alone or in conjunction with any other information to assume the identity of another person or access financial resources or credit of another person. c. "member of the armed forces" shall mean a person in the military service of the United States or the military service of the state, S. 2406 16 including but not limited to, the armed forces of the United States, the army national guard, the air national guard, the New York naval militia, the New York guard, and such additional forces as may be created by the federal or state government as authorized by law. § 36. Subdivision 2 of section 190.83 of the penal law, as separately amended by chapters 226 and 279 of the laws of 2008, is amended to read as follows: 2. he or she has been previously convicted within the last five years of identity theft in the third degree as defined in section [190.78] 190.80, identity theft in the second degree as defined in section [190.79] 190.80-A, identity theft in the first degree as defined in section [190.80] 190.80-B, unlawful possession of personal identifica- tion information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in this section, [unlawful] CRIMINAL possession of a skimmer device in the second degree as defined in section 190.85, [unlawful] CRIMINAL possession of a skimmer device in the first degree as defined in section 190.86, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chap- ter; or § 37. Paragraph (s) of subdivision 8 of section 700.05 of the criminal procedure law, as added by chapter 619 of the laws of 2002, is amended to read as follows: (s) Identity theft in the second degree, as defined in section [190.79] 190.80-A of the penal law, identity theft in the first degree, as defined in section [190.80] 190.80-B of the penal law, unlawful possession of personal identification information in the second degree, as defined in section 190.82 of the penal law, and unlawful possession of personal identification information in the first degree, as defined in section 190.83 of the penal law. § 38. Paragraph (a) of subdivision 3 of section 490.05 of the penal law, as amended by section 7 of part A of chapter 1 of the laws of 2004, is amended to read as follows: (a) "Specified offense" for purposes of this article means a class A felony offense other than an offense as defined in article two hundred twenty, a violent felony offense as defined in section 70.02, manslaughter in the second degree as defined in section 125.15, criminal tampering in the first degree as defined in section 145.20, identity theft in the second degree as defined in section [190.79] 190.80-A, identity theft in the first degree as defined in section [190.80] 190.80-B, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, money laundering in support of terrorism in the fourth degree as defined in section 470.21, money laundering in support of terrorism in the third degree as defined in section 470.22, money laun- dering in support of terrorism in the second degree as defined in section 470.23, money laundering in support of terrorism in the first degree as defined in section 470.24 of this chapter, and includes an attempt or conspiracy to commit any such offense. § 39. Subdivision 1 and paragraph (b) of subdivision 4 of section 60.27 of the penal law, subdivision 1 as amended by chapter 279 of the S. 2406 17 laws of 2008, and paragraph (b) of subdivision 4 as amended by chapter 313 of the laws of 2011, are amended to read as follows: 1. In addition to any of the dispositions authorized by this article, the court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense, and after providing the district attorney with an opportunity to be heard in accordance with the provisions of this subdivision, require the defendant to make restitu- tion of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby and, in the case of a violation of section 190.78, 190.79, 190.80, 190.80-A, 190.80-B, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action taken against the victim. The district attorney shall where appropriate, advise the court at or before the time of sentencing that the victim seeks restitution or reparation, the extent of injury or economic loss or damage of the victim, and the amount of restitution or reparation sought by the victim in accordance with his or her responsibilities under subdivision two of section 390.50 of the criminal procedure law and article twenty-three of the executive law. The court shall hear and consider the information presented by the district attorney in this regard. In that event, or when the victim impact statement reports that the victim seeks restitution or reparation, the court shall require, unless the interests of justice dictate otherwise, in addition to any of the dispositions authorized by this article that the defendant make restitution of the fruits of the offense and reparation for the actual out-of-pocket loss and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action, caused thereby to the victim. In the event that restitution or reparation are not ordered, the court shall clearly state its reasons on the record. Adverse action as used in this subdivision shall mean and include actual loss incurred by the victim, including an amount equal to the value of the time reasonably spent by the victim attempting to remediate the harm incurred by the victim from the offense, and the consequential financial losses from such action. (b) the term "victim" shall include the victim of the offense, the representative of a crime victim as defined in subdivision six of section six hundred twenty-one of the executive law, an individual whose identity was assumed or whose personal identifying information was used in violation of section 190.78, 190.79 [or], 190.80, 190.80-A OR 190.80-B of this chapter, or any person who has suffered a financial loss as a direct result of the acts of a defendant in violation of section 190.78, 190.79, 190.80, 190.80-A, 190.80-B, 190.82 or 190.83 of this chapter, a good samaritan as defined in section six hundred twen- ty-one of the executive law and the office of victim services or other governmental agency that has received an application for or has provided financial assistance or compensation to the victim. A victim shall also mean any owner or lawful producer of a master recording, or a trade association that represents such owner or lawful producer, that has suffered injury as a result of an offense as defined in article two hundred seventy-five of this chapter. § 40. This act shall take effect immediately.
Co-Sponsors
Joseph E. Robach
(R, C, IP) 0 Senate District
S2406A (ACTIVE) - Details
S2406A (ACTIVE) - Sponsor Memo
BILL NUMBER: S2406A TITLE OF BILL : An act to amend the penal law and the criminal procedure law, in relation to cyber crimes; and to repeal certain provisions of the penal law relating to scheme to defraud PURPOSE : To create a framework for the prosecution of online privacy violations. SUMMARY OF PROVISIONS : The bill modernizes, or if necessary, creates cyber-crime statutes and creates a graduated series of penalties based on the amount of damages and the numbers of persons affected. LARCENY : Amends section 155.00 of the penal law to enlarge the definition of "property" to include personal identifying information and secret scientific material, to update definitions of "obtain," "deprive," "appropriate" for the computer age, and to add definitions of "computer program" and "computer data" Extends definition of larceny to include personal identifying information and theft of service. Changes definition of larceny to include theft of service and changes
penalty structure to match the penalty to the numbers of people or the amount of damages, as follows: *Creates a new crime, Petit Theft of Service (155.23), stealing a service, a B misdemeanor. *Adds to Petit larceny (155.25), stealing a service with a value in excess of $500. *Adds to Grand larceny 4th (155.30) stealing a service or personal identifying information maintains $1,000 value - E felony. *Adds to Grand larceny 3rd (155.35), stealing a service, or that the property stolen is personal identifying information of 25 or more persons; maintains $3,000 value - D felony. *Adds to Grand larceny 2nd, personal identifying information of 100 or more persons maintains $50,000 limit - C felony. *Adds to Grand larceny 1st, personal identifying information of 1,000 or more persons maintains $1 million valuation - B felony. COMPUTER TAMPERING : Changes definition of without authorization in computer use to include going beyond the scope of permission granted Renumbers computer tampering to include a new computer tampering in the first degree by renumbering fourth, third, and second degrees one step lower The new computer tampering framework is as follows: *Computer tampering 5th degree (formerly the 4th) - remains a class A misdemeanor. *Computer tampering 4th degree - damages of $1,000 - remains an E felony. *Computer tampering 3rd degree - damages of $3,000 - remains a D felony. *Computer tampering 2nd degree - $50,000 - remains a C felony. *Computer Tampering 1st degree - $1 million in damages - B felony. DENIAL OF SERVICE ATTACK : New crimes against denial of service defined as the transmission of a program, information, code, or command, or other electronic communication, and as a result of such conduct, intentionally makes the computer, computer service, computer program, or computer network temporarily or indefinitely unavailable to its intended users. *Denial of Service Attack 5th - A misdemeanor. *Denial of service attack 4th - damages or loss that exceeds $1,000 - E felony. *Denial of service attack 3rd - damages or loss of $3,000 - D felony. *Denial of service attack 2nd - damages or loss that exceeds $50,000 - C felony. *Denial of service attack 1st - damages or loss that exceeds $1 million- B felony CRIMINAL POSSESSION OF STOLEN PROPERTY : Adds personally identifying information to the definition of stolen property, and creates a new framework: *Criminal possession of stolen property 4th - adds personal identifying information. *Criminal possession of stolen property 3rd - value exceeds $3,000 or 25 or more victims - D felony. *Criminal possession of stolen property 2nd - value exceeds $50,000 or the consists of personal identifying information of one hundred or more persons - C felony. *Criminal possession of stolen property 1st - value exceeds $1 million or the consists of personal identifying information of one thousand or more persons - B felony. SCHEME TO DEFRAUD : Creates graduated scheme to defraud: *Scheme to Defraud 5th - No specified value or number of victims - A Misdemeanor. *Scheme to Defraud 4th - Greater than $1,000 or 10 or more victims or one vulnerable elderly person - E Felony. *Scheme to Defraud 3rd - Greater than $3,000 or 25 or more victims - D Felony. *Scheme to Defraud 2nd - Greater than $50,000 or 100 or more victims - C Felony. *Scheme to Defraud 1st - Greater than $1,000,000 or 1,000 or more victims - B Felony. IDENTIFY THEFT : Renumbers current sections to Create a graduated provision in place of the level penalty that currently exists: *Identity Theft 5th - No specified value or number of victims - A Misdemeanor. *Identity Theft 4th - Greater than $500 or 3 or more victims - E Felony. *Identity Theft 3rd - Greater than $2,000 or 10 or more victims - D Felony. *Identity Theft 2nd - Greater than $25,000 or 25 or more victims C Felony *Identity Theft 1st - Greater than $500,000 or 100 or more victims - B Felony. *Aggravated identity theft - includes vulnerable elderly person or a physically disabled person in an aggregate amount that exceeds five hundred dollars - D felony. SKIMMER DEVICE : *Criminal possession of a skimmer device 2nd - D Felony. *Criminal possession of a skimmer device 1st - C Felony. VENUE & SEARCH WARRANTS : *Adds to CPL Geographical jurisdiction of offenses an offense of larceny, criminal possession of stolen property, and personal identifying information or computer data or computer program. *CPL Search warrants - adds electronic communication service or remote computing service, defines "Electronic Communications services" and adds any company, corporation or entity which is headquartered or located outside of the State of New York, and which conducts its regular business in New York or that offers its services to residents of New York. Allows district attorney offices to conduct search warrants properly issued by a court of competent jurisdiction relating to electronic data and information. Clarifies that a court of competent jurisdiction under the U.S. code shall be authorized to issue search warrants regarding electronic or digital information. EXISTING LAW : New bill. JUSTIFICATION : Cybercrime and identity theft are the fastest growing crimes in New York and around the country, with almost daily reports of breaches of customer information from large and small institutions. New York's criminal laws have not kept pace with technology, and do not reflect new modes of communication, or the ways companies conduct their businesses, or provide adequate punishment for the serious damage suffered by victims of cybercrimes and identity thefts. This legislation modernizes the criminal laws, provides new tools for law enforcement, and creates an appropriate graduated scheme for prosecutions: 1. Identity Theft and Related Statutes - a. Increase Identity Theft Penalties to Reflect the Severity of the Crime. The most severe criminal statute that penalizes identity theft is Penal Law 190.80 (Identity Theft in the First Degree), which provides, in relevant part, that one who engages in identity theft that causes more than $2,000 in losses is guilty of a Class D felony (See Penal Law § 190.80(2)), but the statute does not distinguish between more and less severe instances of identity theft, meaning that theft that causes $2,001 in losses faces the same charge as theft that causes losses of $500,000, or more. Similarly, stealing numerous victims may be subject to no greater penalty than stealing the identity of a single person b. Repeat Offenders. The bill extends the lookback period from five years to 10 years, similar to Persistent Sexual Abuse, Vehicular Assault in the First Degree, Menacing in the First Degree, and others It also provides a tolling provision that "stops the clock" during the time a defendant is incarcerated. Finally, it includes a prior conviction for any larceny crime in Article 155, any criminal possession of stolen property crime in Article 165, and any offense listed in Articles 170 ("Other Frauds") and 190 ("Forgery or Related Offenses") as a qualifying predicate offense for "bump up." c. Aggravated Identity Theft-In 2007, the legislature created Aggravated Identity Theft (Penal Law § 190.80-a), which makes it a Class D felony to engage in identity theft and thereby cause gain or loss of $500 or more, while knowing that the person whose identity is stolen is a member of the armed forces serving overseas. The bill includes other vulnerable groups, the elderly, the incompetent, and the physically disabled in the ambit of the law. 2. Criminal Possession of a Skimmer Device A "skimmer device" is defined as a "device designed or adapted to obtain person identifying information from a credit card, debit card, public benefit card, access card or device, or other card or device that contains personal identifying information." Skimmer devices are essential in almost all cybercrime, identity theft, and forgery-related crimes. Because of skimmer devices' central importance to such crimes, the penalties for unlawful possession of skimmer devices should be increased. 3. Computer Crimes a. Definition of "Computer Material." The current definition is restricted to medical records, government records, or data that provides a competitive advantage to the individual accessing it without permission As a consequence, computer trespass, duplication, or tampering that affect other kinds of computer data - such as personal, non-commercial information that may be equally dear to the rightful owners of such data - cannot be effectively prosecuted. For example, hacking into private citizens' emails may be prosecuted as only a misdemeanor rather than a felony. The definition of "computer material" is broadened so that Computer Trespass, Unlawful Duplication of Computer Related Material in the Second Degree, and Computer Tampering in the Second and Third Degrees may be charged even where the material trespassed, duplicated, or tampered with is not medical or government records or competitively sensitive data. The measure also clarifies "Without Authorization" to include exceeding limited access to engage in wrongdoing. b. Computer Tampering - The highest level of computer tampering, which is the alteration or destruction of any of the data or programs on a computer by one whose use of or access to the computer is without authorization, is Computer Tampering in the First Degree, a C felony, which applies in any instance in which one engaged computer tampering and thereby causes damages exceeding $50,000. This does not meaningfully distinguish between more and less severe instances of computer tampering, and it provides an insufficient penalty for very serious instances of computer tampering, the change is to create a graduated set of penalties based on damages or the numbers of people affected. c. Scheme to Defraud- The crime is only a Class E felony, regardless of the value of property obtained. A defendant who defrauds numerous victims may be subject to no greater penalty than a defendant who defrauds a single victim. The bill creates a graduated scheme to defraud d. Larceny and Criminal Possession of Stolen Property - Larceny and stolen property laws largely apply only to circumstances surrounding the fraudulent and unauthorized use of personal identifying information, as opposed to the theft and possession of the personal identifying information itself. The bill expands larceny and criminal possession of stolen property laws to cover individuals who steal and possess personal identifying information and provides graduated offenses involving possession of stolen personal identifying information. e. Venue - the bill changes the law so that the same venue provisions apply to larceny and criminal possession of stolen property as they relate to personal identifying information. Identity theft often crosses county, state, and even national borders. f. Search Warrants - Under CPL Article 690 20(1), search warrants issued by New York courts cannot be executed outside of the State. As a consequence, it is difficult to execute search warrants for email content or social media accounts (many of which are based in California) In several other states search warrants issued by the state's courts may be executed outside of the state. The bill amends CPL to allow for the execution of search warrants for electronic records, email accounts, etc., outside New York State. It does not seek to permit the execution outside of the state of search warrants that seek non-electronic content. LEGISLATIVE HISTORY : 2015 S. 4072 Passed Senate. 2016 S. 4072-B Passed Senate. FISCAL IMPLICATIONS : It is likely that this will result in increased penalty revenues. EFFECTIVE DATE : The first of November after it shall have become law.
S2406A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 2406--A 2017-2018 Regular Sessions I N S E N A T E January 13, 2017 ___________ Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law and the criminal procedure law, in relation to cyber crimes; and to repeal certain provisions of the penal law relating to scheme to defraud THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 1, 2, 3 and 4 of section 155.00 of the penal law, subdivision 1 as amended by chapter 514 of the laws of 1986, are amended and two new subdivisions 10 and 11 are added to read as follows: 1. "Property" means any money, personal property, real property, computer data, computer program, PERSONAL IDENTIFYING INFORMATION, SECRET SCIENTIFIC MATERIAL, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation. 2. "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. WITH REGARD TO PERSONAL IDENTI- FYING INFORMATION, COMPUTER DATA OR COMPUTER PROGRAM, OBTAIN INCLUDES DUPLICATING, RECORDING, COPYING, DOWNLOADING, UPLOADING OR PRINTING OUT THE INFORMATION, DATA, OR PROGRAM, OR OBTAINING A PHYSICAL OBJECT CONTAINING SUCH INFORMATION. WITH REGARD TO SERVICE, OBTAIN INCLUDES, BUT IS NOT LIMITED TO, USING OR ACCESSING A SERVICE. 3. "Deprive." To "deprive" another of property means (a) to withhold it or cause it to be withheld from him OR HER permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him OR HER, or (b) to dispose of the property in such manner or under such circumstances as to render EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD03876-03-7 S. 2406--A 2 it unlikely that an owner will recover such property. WHEN THE PROPERTY IS PERSONAL IDENTIFYING INFORMATION, COMPUTER DATA OR COMPUTER PROGRAM, TO DEPRIVE ANOTHER OF ITS MEANS TO OBTAIN IT OR CAUSE A THIRD PERSON TO OBTAIN IT UNDER SUCH CIRCUMSTANCES THAT A SUBSTANTIAL PORTION OF THE ECONOMIC BENEFIT OR VALUE OF HAVING CONTROL OVER IT OR AUTHORITY OVER ITS USE IS LOST TO AN OWNER. TO DEPRIVE ANOTHER OF SERVICE IS TO USE OR ACCESS A SERVICE OR CAUSE A THIRD PERSON TO USE OR ACCESS A SERVICE UNDER SUCH CIRCUMSTANCES THAT SOME OF THE ECONOMIC BENEFIT OR VALUE OF HAVING CONTROL OR AUTHORITY OVER PROVIDING THE SERVICE IS LOST TO AN OWNER. 4. "Appropriate." To "appropriate" property of another to oneself or a third person means (a) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person. WHEN THE PROPERTY IS PERSONAL IDENTIFYING INFORMATION, COMPUTER DATA OR COMPUTER PROGRAM OF ANOTHER, TO APPROPRIATE IT TO ONESELF OR A THIRD PERSON MEANS TO OBTAIN IT UNDER SUCH CIRCUMSTANCES AS TO ACQUIRE THE ABILITY TO USE IT OR DISPOSE OF IT TO THE ECONOMIC BENEFIT OF ONESELF OR A THIRD PERSON OR TO THE ECONOMIC DETRIMENT OR DAMAGE OF AN OWNER. TO APPROPRIATE A SERVICE PROVIDED BY ANOTHER TO ONESELF OR A THIRD PERSON MEANS TO USE OR ACCESS THE SERVICE UNDER SUCH CIRCUMSTANCES AS TO ACQUIRE THE ABILITY TO USE IT TO THE ECONOMIC BENEFIT OF ONESELF OR A THIRD PERSON OR TO THE ECONOMIC DETRI- MENT OR DAMAGE OF AN OWNER. 10. "COMPUTER PROGRAM" MEANS AN ORDERED SET OF DATA REPRESENTING CODED INSTRUCTIONS OR STATEMENTS THAT WHEN EXECUTED BY THE COMPUTER, CAUSE THE COMPUTER TO PROCESS DATA OR DIRECT THE COMPUTER TO PERFORM ONE OR MORE COMPUTER OPERATIONS OR BOTH AND MAY BE IN ANY FORM, INCLUDING MAGNETIC STORAGE MEDIA, OPTICAL MEDIA, COMPUTING DEVICES, PUNCHED CARDS, OR STORED INTERNALLY IN THE MEMORY OF THE COMPUTER. 11. "COMPUTER DATA" MEANS A REPRESENTATION OF INFORMATION, KNOWLEDGE, FACTS, CONCEPT OR INSTRUCTIONS WHICH ARE BEING PROCESSED, OR HAVE BEEN PROCESSED IN A COMPUTER AND MAY BE IN ANY FORM INCLUDING MAGNETIC STOR- AGE MEDIA, PUNCHED CARDS, OR STORED INTERNALLY IN THE MEMORY OF THE COMPUTER. § 2. Paragraph (c) of subdivision 2 of section 155.05 of the penal law is amended and a new paragraph (f) is added to read as follows: (c) By committing the crime of issuing a bad check, as defined in section 190.05, OR BY OBTAINING PROPERTY OR SERVICE BY USING OR PRESENT- ING A FORM OF PAYMENT OR PERSONAL IDENTIFYING INFORMATION THE ACTOR KNOWS HE OR SHE IS NOT AUTHORIZED TO USE OR KNOWS IS EXPIRED OR FORGED OR OTHERWISE NOT VALID; (F) BY THEFT OF SERVICE. THEFT OF SERVICE MEANS EITHER: (I) USING OR ACCESSING A SERVICE IN A MANNER THAT OTHERWISE REQUIRES PAYMENT AND INTENTIONALLY FAILING TO PAY FOR SUCH USE OR ACCESS BY EITHER TAMPERING WITHOUT AUTHORITY WITH A DELIVERY, PAYMENT, OR MEASUREMENT DEVICE OR MECHANISM, OR BY ENTERING OR LEAVING PREMISES WHERE THE SERVICE IS PROVIDED BY STEALTH OR BY EVADING A PHYSICAL BARRIER, OR (II) USING OR ACCESSING A SERVICE IN A MANNER THAT OTHERWISE REQUIRES PAYMENT OR THE PRESENTATION OF PERSONAL IDENTIFYING INFORMATION AND USING OR PRESENTING A FORM OF PAYMENT OR PERSONAL IDENTIFYING INFORMATION THE ACTOR KNOWS HE OR SHE IS NOT AUTHORIZED TO USE OR KNOWS IS EXPIRED OR FORGED OR OTHER- WISE NOT VALID. § 3. Subdivision 1 of section 155.20 of the penal law is amended to read as follows: S. 2406--A 3 1. Except as otherwise specified in this section, value means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime. WITH REGARD TO SERVICE, VALUE SHALL ALSO MEAN THE COST OF PROVIDING THE SERVICE AT THE TIME OF THE CRIME, AND WITH REGARD TO THE VALUE OF COMPUTER DATA OR COMPUTER PROGRAM VALUE SHALL MEAN THE REPLACEMENT COST OR THE MARKET VALUE AT THE TIME AND PLACE OF THE CRIME, OR THE COST TO WRITE OR DEVEL- OP SUCH DATA AND/OR PROGRAM, WHICHEVER IS GREATER. § 4. The penal law is amended by adding a new section 155.23 to read as follows: § 155.23 PETIT THEFT OF SERVICE. A PERSON IS GUILTY OF PETIT THEFT OF SERVICE WHEN HE OR SHE STEALS A SERVICE. PETIT THEFT OF SERVICE IS A CLASS B MISDEMEANOR. § 5. Section 155.25 of the penal law is amended to read as follows: § 155.25 Petit larceny. A person is guilty of petit larceny when he OR SHE steals property, OR STEALS A SERVICE AND THE VALUE OF THE SERVICE EXCEEDS FIVE HUNDRED DOLLARS. Petit larceny is a class A misdemeanor. § 6. The opening paragraph and subdivisions 1, 4 and 6 of section 155.30 of the penal law, the opening paragraph and subdivisions 1 and 6 as amended by chapter 515 of the laws of 1986, subdivision 4 as amended by chapter 556 of the laws of 1987, are amended to read as follows: A person is guilty of grand larceny in the fourth degree when he OR SHE steals property OR A SERVICE and when: 1. The value of the property OR SERVICE exceeds one thousand dollars; or 4. The property consists of a credit card or debit card OR PERSONAL IDENTIFYING INFORMATION; or 6. The property OR SERVICE, regardless of its nature and value, is obtained by extortion; or § 7. Section 155.35 of the penal law, as amended by chapter 464 of the laws of 2010, is amended to read as follows: § 155.35 Grand larceny in the third degree. A person is guilty of grand larceny in the third degree when he or she steals property OR A SERVICE and: 1. when the value of the property exceeds three thousand dollars, or 2. the property is an automated teller machine or the contents of an automated teller machine, OR 3. THE PROPERTY IS PERSONAL IDENTIFYING INFORMATION OF TWENTY-FIVE OR MORE PERSONS. Grand larceny in the third degree is a class D felony. § 8. Section 155.40 of the penal law, as amended by chapter 515 of the laws of 1986, is amended to read as follows: § 155.40 Grand larceny in the second degree. A person is guilty of grand larceny in the second degree when he OR SHE steals property OR A SERVICE and when: 1. The value of the property OR SERVICE exceeds fifty thousand dollars; or 2. The property OR SERVICE, regardless of its nature and value, is obtained by extortion committed by instilling in the victim a fear that the actor or another person will (a) cause physical injury to some person in the future, or (b) cause damage to property, or (c) use or abuse his OR HER position as a public servant by engaging in conduct S. 2406--A 4 within or related to his OR HER official duties, or by failing or refus- ing to perform an official duty, in such manner as to affect some person adversely, OR 3. THE PROPERTY IS PERSONAL IDENTIFYING INFORMATION OF ONE HUNDRED OR MORE PERSONS. Grand larceny in the second degree is a class C felony. § 9. Section 155.42 of the penal law, as added by chapter 515 of the laws of 1986, is amended to read as follows: § 155.42 Grand larceny in the first degree. A person is guilty of grand larceny in the first degree when he OR SHE steals property OR A SERVICE and when the value of the property OR SERVICE exceeds one million dollars; OR THE PROPERTY IS PERSONAL IDENTI- FYING INFORMATION OF ONE THOUSAND OR MORE PERSONS. Grand larceny in the first degree is a class B felony. § 10. Subdivisions 5 and 8 of section 156.00 of the penal law, subdi- vision 5 as amended and subdivision 8 as added by chapter 558 of the laws of 2006, are amended to read as follows: 5. "Computer material" is property and means any computer data or computer program which: (a) contains records of the medical history or medical treatment of an identified or readily identifiable individual or individuals. This term shall not apply to the gaining access to or duplication solely of the medical history or medical treatment records of a person by that person or by another specifically authorized by the person whose records are gained access to or duplicated; or (b) contains records maintained by the state or any political subdivi- sion thereof or any governmental instrumentality within the state which contains any information concerning a person, as defined in subdivision seven of section 10.00 of this chapter, which because of name, number, symbol, mark or other identifier, can be used to identify the person and which is otherwise prohibited by law from being disclosed. This term shall not apply to the gaining access to or duplication solely of records of a person by that person or by another specifically authorized by the person whose records are gained access to or duplicated; or (c) is not and is not intended to be available to anyone other than the person or persons rightfully in possession thereof or selected persons having access thereto with his, her or their consent and which [accords or may accord such rightful possessors an advantage over competitors or other persons who do not have knowledge or the benefit thereof] ANY PERSON, OTHER THAN A PERSON RIGHTFULLY IN POSSESSION, KNOWS OR SHOULD KNOW IS NOT INTENDED TO BE AVAILABLE TO HIM OR HER. 8. "Without authorization" means to use or to access a computer, computer service or computer network without the permission of the owner or lessor or someone licensed or privileged by the owner or lessor where such person knew that his or her use or access was without permission or after actual notice to such person that such use or access was without permission, OR THAT SUCH USE OR ACCESS WAS FOR PURPOSES OTHER THAN THOSE FOR WHICH PERMISSION WAS GRANTED BY THE OWNER, LESSOR, OR SOMEONE LICENSED OR PRIVILEGED BY SUCH OWNER OR LESSOR. It shall also mean the access of a computer service by a person without permission where such person knew that such access was without permission or after actual notice to such person, that such access was without permission. Proof that such person used or accessed a computer, computer service or computer network through the knowing use of a set of instructions, code or computer program that bypasses, defrauds or otherwise circum- vents a security measure installed or used with the user's authorization S. 2406--A 5 on the computer, computer service or computer network shall be presump- tive evidence that such person used or accessed such computer, computer service or computer network without authorization. § 11. Section 156.20 of the penal law, as amended by chapter 558 of the laws of 2006, is amended to read as follows: § 156.20 Computer tampering in the [fourth] FIFTH degree. A person is guilty of computer tampering in the [fourth] FIFTH degree when he or she uses, causes to be used, or accesses a computer, computer service, or computer network without authorization and he or she inten- tionally alters in any manner or destroys computer data or a computer program of another person. Computer tampering in the [fourth] FIFTH degree is a class A misdemea- nor. § 12. Section 156.25 of the penal law, as amended by chapter 89 of the laws of 1993, subdivision 2 as amended by chapter 376 of the laws of 1997, is amended to read as follows: § 156.25 Computer tampering in the [third] FOURTH degree. A person is guilty of computer tampering in the third degree when he OR SHE commits the crime of computer tampering in the [fourth] FIFTH degree and: 1. he OR SHE does so with an intent to commit or attempt to commit or further the commission of any felony; or 2. he OR SHE has been previously convicted of any crime under this article or subdivision eleven of section 165.15 of this chapter; or 3. he OR SHE intentionally alters in any manner or destroys computer material; or 4. he OR SHE intentionally alters in any manner or destroys computer data or a computer program so as to cause damages in an aggregate amount exceeding one thousand dollars. Computer tampering in the [third] FOURTH degree is a class E felony. § 13. Section 156.26 of the penal law, as amended by chapter 590 of the laws of 2008, is amended to read as follows: § 156.26 Computer tampering in the [second] THIRD degree. A person is guilty of computer tampering in the [second] THIRD degree when he or she commits the crime of computer tampering in the fourth degree and he or she intentionally alters in any manner or destroys: 1. computer data or a computer program so as to cause damages in an aggregate amount exceeding three thousand dollars; or 2. computer material that contains records of the medical history or medical treatment of an identified or readily identifiable individual or individuals and as a result of such alteration or destruction, such individual or individuals suffer serious physical injury, and he or she is aware of and consciously disregards a substantial and unjustifiable risk that such serious physical injury may occur. Computer tampering in the [second] THIRD degree is a class D felony. § 14. Section 156.27 of the penal law, as added by chapter 89 of the laws of 1993, is amended to read as follows: § 156.27 Computer tampering in the [first] SECOND degree. A person is guilty of computer tampering in the [first] SECOND degree when he OR SHE commits the crime of computer tampering in the fourth degree and he OR SHE intentionally alters in any manner or destroys computer data or a computer program so as to cause damages in an aggre- gate amount exceeding fifty thousand dollars. Computer tampering in the [first] SECOND degree is a class C felony. § 15. The penal law is amended by adding a new section 156.28 to read as follows: S. 2406--A 6 § 156.28 COMPUTER TAMPERING IN THE FIRST DEGREE. A PERSON IS GUILTY OF COMPUTER TAMPERING IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME OF COMPUTER TAMPERING IN THE FIFTH DEGREE AND HE OR SHE INTENTIONALLY ALTERS IN ANY MANNER OR DESTROYS COMPUTER DATA OR A COMPUTER PROGRAM AND THEREBY CAUSES DAMAGES IN AN AGGREGATE AMOUNT OF ONE MILLION DOLLARS OR MORE. COMPUTER TAMPERING IN THE FIRST DEGREE IS A CLASS B FELONY. § 16. The penal law is amended by adding five new sections 156.60, 156.65, 156.70, 156.75 and 156.80 to read as follows: § 156.60 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE. A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE WHEN HE OR SHE ACTING ALONE OR WITH OTHERS KNOWINGLY CAUSES THE TRANSMISSION OF A PROGRAM, INFORMATION, CODE, OR COMMAND, OR OTHER ELECTRONIC COMMU- NICATION, AND AS A RESULT OF SUCH CONDUCT, INTENTIONALLY MAKES THE COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK TEMPO- RARILY OR INDEFINITELY UNAVAILABLE TO ITS INTENDED USERS. DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE IS A CLASS A MISDEMEA- NOR. § 156.65 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FOURTH DEGREE. A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FOURTH DEGREE WHEN HE OR SHE COMMITS THE CRIME OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE AND THEREBY CAUSES DAMAGES OR LOSS THAT EXCEEDS ONE THOUSAND DOLLARS TO ANOTHER PERSON OR PERSONS, AND/OR ONE OR MORE FINANCIAL INSTITUTIONS AND/OR OTHER BUSINESSES. DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FOURTH DEGREE IS A CLASS E FELONY. § 156.70 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE THIRD DEGREE. A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER IN THE THIRD DEGREE WHEN HE OR SHE COMMITS THE CRIME OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE AND THEREBY CAUSES DAMAGES OR LOSS THAT EXCEEDS THREE THOUSAND DOLLARS TO ANOTHER PERSON OR PERSONS, AND/OR TO ONE OR MORE FINANCIAL INSTITUTIONS AND/OR OTHER BUSINESSES, OR COMMITS OR ATTEMPTS TO COMMIT A CLASS D FELONY OR HIGHER LEVEL CRIME OR ACTS AS AN ACCESSORY TO THE COMMISSION OF A CLASS D OR HIGHER LEVEL FELONY. DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE THIRD DEGREE IS A CLASS D FELONY. § 156.75 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE SECOND DEGREE. A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE SECOND DEGREE WHEN HE OR SHE COMMITS THE CRIME OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE AND THEREBY CAUSES DAMAGES OR LOSS THAT EXCEEDS FIFTY THOUSAND DOLLARS TO ANOTHER PERSON OR PERSONS, AND/OR FINANCIAL INSTITUTIONS AND/OR OTHER BUSINESSES, OR COMMITS OR ATTEMPTS TO COMMIT A CLASS C FELONY OR HIGHER LEVEL CRIME OR ACTS AS AN ACCESSORY IN THE COMMISSION OF A CLASS C OR HIGHER LEVEL FELONY. S. 2406--A 7 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE SECOND DEGREE IS A CLASS C FELONY. § 156.80 DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIRST DEGREE. A PERSON IS GUILTY OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME OF DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIFTH DEGREE AND THEREBY CAUSES DAMAGES OR LOSS THAT EXCEEDS ONE MILLION DOLLARS TO ANOTHER PERSON OR PERSONS, AND/OR ONE OR MORE FINANCIAL INSTITUTIONS AND/OR OTHER BUSINESSES, OR COMMITS OR ATTEMPTS TO COMMIT A CLASS B FELONY OR HIGHER LEVEL CRIME OR ACTS AS AN ACCESSORY IN THE COMMISSION ON A CLASS B OR HIGHER LEVEL FELONY. DENIAL OF SERVICE ATTACK ON A COMPUTER, COMPUTER SERVICE, COMPUTER PROGRAM, OR COMPUTER NETWORK IN THE FIRST DEGREE IS A CLASS B FELONY. § 17. Subdivision 2 of section 165.45 of the penal law, as amended by chapter 81 of the laws of 1995, is amended to read as follows: 2. The property consists of a credit card, debit card or public bene- fit card, OR PERSONAL IDENTIFYING INFORMATION AS DEFINED IN SECTION 190.77 OF THIS CHAPTER; or § 18. Section 165.50 of the penal law, as amended by chapter 515 of the laws of 1986, is amended to read as follows: § 165.50 Criminal possession of stolen property in the third degree. A person is guilty of criminal possession of stolen property in the third degree when he OR SHE knowingly possesses stolen property, with intent to benefit himself OR HERSELF or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars, OR THE PROPERTY CONSISTED OF THE PERSONAL IDENTIFYING INFORMATION OF TWENTY-FIVE OR MORE PERSONS. Criminal possession of stolen property in the third degree is a class D felony. § 19. Section 165.52 of the penal law, as added by chapter 515 of the laws of 1986, is amended to read as follows: § 165.52 Criminal possession of stolen property in the second degree. A person is guilty of criminal possession of stolen property in the second degree when he OR SHE knowingly possesses stolen property, with intent to benefit himself OR HERSELF or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds fifty thousand dollars, OR THE PROPERTY CONSISTS OF THE PERSONAL IDENTIFYING INFORMATION OF ONE HUNDRED OR MORE PERSONS. Criminal possession of stolen property in the second degree is a class C felony. § 20. Section 165.54 of the penal law, as added by chapter 515 of the laws of 1986, is amended to read as follows: § 165.54 Criminal possession of stolen property in the first degree. A person is guilty of criminal possession of stolen property in the first degree when he OR SHE knowingly possesses stolen property, with intent to benefit himself OR HERSELF or a person other than an owner thereof or to impede the recovery by an owner, and when the value of the property exceeds one million dollars, OR THE PROPERTY CONSISTS OF THE PERSONAL IDENTIFYING INFORMATION OF ONE THOUSAND OR MORE PERSONS. Criminal possession of stolen property in the first degree is a class B felony. S. 2406--A 8 § 21. Sections 190.60 and 190.65 of the penal law are REPEALED and six new sections 190.60, 190.61, 190.62, 190.63, 190.64 and 190.65 are added to read as follows: § 190.60 SCHEME TO DEFRAUD DEFINED. 1. A PERSON ENGAGES IN A SCHEME TO DEFRAUD WHEN HE OR SHE ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD AT LEAST ONE PERSON OR TO OBTAIN PROPERTY OR SERVICE FROM AT LEAST ONE PERSON BY FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS OR PROMISES, AND SO OBTAINS PROPERTY OR SERVICE FROM AT LEAST ONE PERSON. 2. PROPERTY, SERVICE, COMPUTER DATA AND COMPUTER PROGRAM SHALL HAVE THE MEANINGS SET FORTH IN SECTION 155.00 OF THIS CHAPTER. 3. IN ANY PROSECUTION OF A SCHEME TO DEFRAUD, IT SHALL BE NECESSARY TO PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO OBTAINED PROPERTY OR SERVICE, BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY OF ANY OTHER INTENDED VICTIM, PROVIDED THAT IN A PROSECUTION OF A SCHEME TO DEFRAUD PURSUANT TO SUBDIVISION THREE OF SECTION 190.62 OF THIS ARTICLE, IT SHALL BE NECESSARY TO PROVE THE IDENTITY OF AT LEAST ONE SUCH VULNERABLE ELDERLY PERSON. § 190.61 SCHEME TO DEFRAUD IN THE FIFTH DEGREE. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FIFTH DEGREE WHEN HE OR SHE ENGAGES IN A SCHEME TO DEFRAUD. SCHEME TO DEFRAUD IN THE FIFTH DEGREE IS A CLASS A MISDEMEANOR. § 190.62 SCHEME TO DEFRAUD IN THE FOURTH DEGREE. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FOURTH DEGREE WHEN HE OR SHE ENGAGES IN A SCHEME TO DEFRAUD, AND 1. INTENDS TO OBTAIN PROPERTY OR SERVICE FROM TEN OR MORE PERSONS; OR 2. THE VALUE OF THE PROPERTY OR SERVICE OBTAINED EXCEEDS ONE THOUSAND DOLLARS; OR 3. INTENDS TO OBTAIN AND DOES OBTAIN PROPERTY OR SERVICE FROM AT LEAST ONE 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 E FELONY. § 190.63 SCHEME TO DEFRAUD IN THE THIRD DEGREE. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE THIRD DEGREE WHEN HE OR SHE ENGAGES IN A SCHEME TO DEFRAUD, AND 1. INTENDS TO OBTAIN PROPERTY OR SERVICE FROM TWENTY-FIVE OR MORE PERSONS; OR 2. THE VALUE OF THE PROPERTY OR SERVICE OBTAINED EXCEEDS THREE THOU- SAND DOLLARS. SCHEME TO DEFRAUD IN THE THIRD DEGREE IS A CLASS D FELONY. § 190.64 SCHEME TO DEFRAUD IN THE SECOND DEGREE. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE SECOND DEGREE WHEN HE OR SHE ENGAGES IN A SCHEME TO DEFRAUD, AND 1. INTENDS TO OBTAIN PROPERTY OR SERVICE FROM ONE HUNDRED OR MORE PERSONS; OR 2. THE VALUE OF THE PROPERTY OR SERVICE OBTAINED EXCEEDS FIFTY THOU- SAND DOLLARS. SCHEME TO DEFRAUD IN THE SECOND DEGREE IS A CLASS C FELONY. § 190.65 SCHEME TO DEFRAUD IN THE FIRST DEGREE. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FIRST DEGREE WHEN HE OR SHE ENGAGES IN A SCHEME TO DEFRAUD, AND 1. INTENDS TO OBTAIN PROPERTY OR SERVICE FROM ONE THOUSAND OR MORE PERSONS; OR 2. THE VALUE OF THE PROPERTY OR SERVICE OBTAINED EXCEEDS ONE MILLION DOLLARS. SCHEME TO DEFRAUD IN THE FIRST DEGREE IS A CLASS B FELONY. S. 2406--A 9 § 22. Section 190.78 of the penal law, as added by chapter 619 of the laws of 2002, is amended to read as follows: § 190.78 Identity theft in the [third] FIFTH degree. A person is guilty of identity theft in the [third] FIFTH degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying informa- tion of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person or causes financial loss to such person or to another person or persons; or 2. commits a class A misdemeanor or higher level crime. Identity theft in the [third] FIFTH degree is a class A misdemeanor. § 23. Section 190.79 of the penal law, as added by chapter 619 of the laws of 2002, subdivision 4 as amended by chapter 279 of the laws of 2008, is amended to read as follows: § 190.79 Identity theft in the [second] FOURTH degree. A person is guilty of [identify] IDENTITY theft in the [second] FOURTH degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds five hundred dollars; or 2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds five hundred dollars; or 3. commits or attempts to commit a felony or acts as an accessory to the commission of a felony; or 4. commits the crime of identity theft in the [third] FIFTH degree as defined in section 190.78 of this article and has been previously convicted within the last [five years of identity theft in the third degree as defined in section 190.78, identity theft in the second degree as defined in this section, identity theft in the first degree as defined in section 190.80, unlawful possession of personal identifica- tion information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, unlawful possession of a skimmer device in the second degree as defined in section 190.85, unlawful possession of a skimmer device in the first degree as defined in section 190.86, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chapter] TEN YEARS, EXCLUDING ANY TIME PERIOD DURING WHICH SUCH PERSON WAS INCARCERATED FOR ANY REASON, OF ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR OF ANY LARCENY CRIME AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER; OR HE OR SHE KNOWINGLY AND WITH INTENT TO DEFRAUD ASSUMES THE IDENTITY OF THREE OR MORE PERSONS BY PRESENTING HIMSELF OR HERSELF AS THOSE PERSONS OR BY ACTING AS THOSE PERSONS OR BY USING PERSONAL IDENTIFYING INFORMATION OF ANY OF THOSE PERSONS AND THEREBY OBTAINS GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF AT LEAST ONE SUCH PERSON, OR S. 2406--A 10 CAUSES FINANCIAL LOSS TO AT LEAST ONE SUCH PERSON OR TO ANOTHER PERSON OR PERSONS. Identity theft in the [second] FOURTH degree is a class E felony. § 24. Section 190.80 of the penal law, as added by chapter 619 of the laws of 2002, subdivision 4 as amended by chapter 279 of the laws of 2008, is amended to read as follows: § 190.80 Identity theft in the [first] THIRD degree. A person is guilty of identity theft in the [first] THIRD degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying informa- tion of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds two thou- sand dollars; or 2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds two thousand dollars; or 3. commits or attempts to commit a class D felony or higher level crime or acts as an accessory in the commission of a class D or higher level felony; or 4. commits the crime of identity theft in the [second] FOURTH degree as defined in section 190.79 of this article and has been previously convicted within the last [five years of identity theft in the third degree as defined in section 190.78, identity theft in the second degree as defined in section 190.79, identity theft in the first degree as defined in this section, unlawful possession of personal identification information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identifi- cation information in the first degree as defined in section 190.83, unlawful possession of a skimmer device in the second degree as defined in section 190.85, unlawful possession of a skimmer device in the first degree as defined in section 190.86, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chapter] TEN YEARS, EXCLUDING ANY TIME PERIOD DURING WHICH SUCH PERSON WAS INCARCERATED FOR ANY REASON, OF ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR OF ANY LARCENY CRIME AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER; OR ASSUMES THE IDENTITY OF TEN OR MORE PERSONS BY PRESENTING HIMSELF OR HERSELF AS THOSE OTHER PERSONS, OR BY ACTING AS THOSE OTHER PERSONS, OR BY USING PERSONAL IDENTIFYING INFORMATION OF THOSE OTHER PERSONS, AND THEREBY OBTAINING GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF AT LEAST ONE SUCH PERSON, OR CAUSES FINANCIAL LOSS TO AT LEAST ONE SUCH PERSON, TO ANOTHER PERSON OR PERSONS. Identity theft in the [first] THIRD degree is a class D felony. § 25. Section 190.80-a of the penal law, as added by chapter 226 of the laws of 2008, is renumbered section 190.80-c and amended, and two new sections 190.80-a and 190.80-b are added to read as follows: § 190.80-A IDENTITY THEFT IN THE SECOND DEGREE. A PERSON IS GUILTY OF IDENTITY THEFT IN THE SECOND DEGREE WHEN: 1. HE OR SHE KNOWINGLY AND WITH INTENT TO DEFRAUD ASSUMES THE IDENTITY OF ANOTHER PERSON BY PRESENTING HIMSELF OR HERSELF AS THAT OTHER PERSON, S. 2406--A 11 OR BY ACTING AS THAT OTHER PERSON OR BY USING PERSONAL IDENTIFYING INFORMATION OF THAT OTHER PERSON, AND THEREBY: A. OBTAINS GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF SUCH OTHER PERSON IN AN AGGREGATE AMOUNT THAT EXCEEDS TWENTY- FIVE THOUSAND DOLLARS; OR B. CAUSES FINANCIAL LOSS TO SUCH PERSON TO ANOTHER PERSON OR PERSONS IN AN AGGREGATE AMOUNT THAT EXCEEDS TWENTY-FIVE THOUSAND DOLLARS; OR C. COMMITS OR ATTEMPTS TO COMMIT A CLASS C FELONY OR HIGHER LEVEL CRIME OR ACTS AS AN ACCESSORY IN THE COMMISSION OF A CLASS C OR HIGHER LEVEL FELONY; OR D. COMMITS THE CRIME OF IDENTITY THEFT IN THE THIRD DEGREE AS DEFINED IN SECTION 190.80 OF THIS ARTICLE AND HAS BEEN PREVIOUSLY CONVICTED WITHIN THE LAST TEN YEARS, EXCLUDING ANY TIME DURING WHICH SUCH PERSON WAS INCARCERATED FOR ANY REASON, OF ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR ANY LARCENY CRIME AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER; OR 2. ASSUMES THE IDENTITY OF TWENTY-FIVE OR MORE PERSON BY PRESENTING HIMSELF OR HERSELF AS THOSE OTHER PERSONS, OR BY ACTING AS THOSE OTHER PERSONS, OR BY USING PERSONAL IDENTIFYING INFORMATION OF THOSE OTHER PERSONS, AND THEREBY OBTAINS GOODS, MONEY, PROPERTY OR OR SERVICES OR USES CREDIT IN THE NAME OF AT LEAST ONE SUCH PERSON, OR CAUSES FINANCIAL LOSS TO AT LEAST ONE SUCH PERSON, OR TO ANOTHER PERSON OR PERSONS. IDENTITY THEFT IN THE SECOND DEGREE OF A CLASS C FELONY. § 190.80-B IDENTITY THEFT IN THE FIRST DEGREE. A PERSON IS GUILTY OF IDENTITY THEFT IN THE FIRST DEGREE WHEN: 1. HE OR SHE KNOWINGLY AND WITH INTENT TO DEFRAUD ASSUMES THE IDENTITY OF ANOTHER PERSON BY PRESENTING HIMSELF OR HERSELF AS THAT OTHER PERSON, OR BY ACTING AS THAT OTHER PERSON OR BY USING PERSONAL IDENTIFYING INFORMATION, AND THEREBY: A. OBTAINS GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF SUCH OTHER PERSON IN AN AGGREGATE AMOUNT THAT EXCEEDS FIVE HUNDRED THOUSAND DOLLARS; OR B. CAUSES FINANCIAL LOSS TO SUCH PERSON OR TO ANOTHER PERSON OR PERSONS IN AN AGGREGATE AMOUNT THAT EXCEEDS FIVE HUNDRED THOUSAND DOLLARS; OR C. COMMITS OR ATTEMPTS TO COMMIT A CLASS B FELONY OR HIGHER LEVEL CRIME OR ACT AS AN ACCESSORY IN THE COMMISSION OF A CLASS B OR HIGHER LEVEL FELONY; OR D. COMMITS THE CRIME OF IDENTITY THEFT IN THE SECOND DEGREE AS DEFINED IN SECTION 190.80-A OF THIS ARTICLE AND HAS BEEN PREVIOUSLY CONVICTED WITHIN THE LAST TEN YEARS, EXCLUDING ANY TIME DURING WHICH SUCH PERSON WAS INCARCERATED FOR ANY REASON, OF ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR OF ANY LARCENY CRIME AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER; OR 2. ASSUMES THE IDENTITY OF ONE HUNDRED OR MORE PERSONS BY PRESENTING HIMSELF OR HERSELF AS THOSE OTHER PERSONS, OR BY ACTING AS THOSE OTHER PERSONS, OR BY USING PERSONAL IDENTIFYING INFORMATION OF THOSE OTHER PERSONS, AND THEREBY OBTAINS GOODS, MONEY, PROPERTY OR SERVICES OR USES CREDIT IN THE NAME OF A LEAST ON SUCH PERSON, OR CAUSES FINANCIAL LOSS TO AT LEAST ON SUCH PERSON, OR TO ANOTHER PERSON OR PERSONS. IDENTITY THEFT IN THE FIRST DEGREE IS A CLASS B FELONY. § 190.80-c Aggravated identity theft. S. 2406--A 12 A person is guilty of aggravated identity theft when he or she know- ingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and knows that such person is a member of the armed forc- es, and knows that such member is presently deployed outside of the continental United States OR KNOWS THAT SUCH PERSON IS A VULNERABLE ELDERLY PERSON OR A PHYSICALLY DISABLED PERSON AS SUCH TERMS ARE DEFINED IN SECTION 260.31 OF THIS CHAPTER AND: 1. thereby obtains goods, money, property or services or uses credit in the name of such [member of the armed forces] INDIVIDUAL in an aggre- gate amount that exceeds five hundred dollars; or 2. thereby causes financial loss to such [member of the armed forces] INDIVIDUAL in an aggregate amount that exceeds five hundred dollars. Aggravated identity theft is a class D felony. § 26. Sections 190.85 and 190.86 of the penal law, as added by chapter 279 of the laws of 2008, are amended to read as follows: § 190.85 [Unlawful] CRIMINAL possession of a skimmer device in the second degree. 1. A person is guilty of [unlawful] CRIMINAL possession of a skimmer device in the second degree when he or she possesses a skimmer device with the intent that such device be used in furtherance of the commis- sion of the crime of identity theft [or unlawful possession of personal identification information] as defined in this article, LARCENY AS DEFINED IN ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER; OR CRIMINAL POSSESSION OF STOLEN PROPERTY AS DEFINED IN ARTICLE ONE HUNDRED SIXTY- FIVE OF THIS CHAPTER. 2. For purposes of this article, "skimmer device" means a device designed or adapted to obtain personal identifying information from a credit card, debit card, public benefit card, access card or device, or other card or device that contains personal identifying information. [Unlawful] CRIMINAL possession of a skimmer device in the second degree is a class [A misdemeanor] D FELONY. § 190.86 [Unlawful] CRIMINAL possession of a skimmer device in the first degree. A person is guilty of [unlawful] CRIMINAL possession of a skimmer device in the first degree when he or she commits the crime of [unlaw- ful] CRIMINAL possession of a skimmer device in the second degree and he or she has been previously convicted within the last [five years of identity theft in the third degree as defined in section 190.78, identi- ty theft in the second degree as defined in section 190.79, identity theft in the first degree as defined in section 190.80, unlawful possession of personal identification information in the third degree as defined in section 190.81, unlawful possession of personal identifica- tion information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, unlawful possession of a skimmer device in the second degree as defined in section 190.85, unlawful possession of a skimmer device in the first degree as defined in this section, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chap- ter] TEN YEARS, EXCLUDING ANY TIME DURING WHICH SUCH PERSON WAS INCAR- CERATED FOR ANY REASON, FOR ANY CRIME IN THIS ARTICLE OR ARTICLE ONE HUNDRED SEVENTY OF THIS CHAPTER, OR OF ANY LARCENY CRIME AS DEFINED IN S. 2406--A 13 ARTICLE ONE HUNDRED FIFTY-FIVE OF THIS CHAPTER, OR OF ANY CRIMINAL POSSESSION OF STOLEN PROPERTY CRIME AS DEFINED IN ARTICLE ONE HUNDRED SIXTY-FIVE OF THIS CHAPTER. [Unlawful] CRIMINAL possession of a skimmer device in the first degree is a class [E] C felony. § 27. Paragraph (l) of subdivision 4 of section 20.40 of the criminal procedure law, as amended by section 3 of subpart C of part C of chapter 97 of the laws of 2011, is amended to read as follows: (l) An offense of identity theft, LARCENY, CRIMINAL POSSESSION OF STOLEN PROPERTY, or unlawful possession of personal identifying informa- tion, IN WHICH THE PROPERTY STOLEN OR CRIMINALLY POSSESSED IS PERSONAL IDENTIFYING INFORMATION OR COMPUTER DATA OR COMPUTER PROGRAM, and all criminal acts committed as part of the same criminal transaction as defined in subdivision two of section 40.10 of this chapter may be pros- ecuted (i) in any county in which part of the offense took place regard- less of whether the defendant was actually present in such county, or (ii) in the county in which the person who suffers financial loss resided at the time of the commission of the offense, or (iii) in the county where the person whose personal identifying information was used in the commission of the offense resided at the time of the commission of the offense. The law enforcement agency of any such county shall take a police report of the matter and provide the complainant with a copy of such report at no charge. § 28. Subdivision 2 of section 690.05 of the criminal procedure law, as amended by chapter 504 of the laws of 1991, the opening paragraph as amended by chapter 424 of the laws of 1998, is amended to read as follows: 2. A search warrant is a court order and process directing a police officer, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT OF THE KIND DESCRIBED IN SUBDIVISION ONE OF THIS SECTION, to conduct: (a) a search of designated premises, or of a designated vehicle, or of a designated person, OR OF ELECTRONIC RECORDS AND DATA THAT HAVE BEEN DIRECTED UNDER THIS ARTICLE TO BE PRODUCED FROM AN ELECTRONIC COMMUNI- CATION SERVICE OR REMOTE COMPUTING SERVICE, for the purpose of seizing designated property or kinds of property, and to deliver any property so obtained to the court which issued the warrant; or (b) a search of a designated premises for the purpose of searching for and arresting a person who is the subject of: (i) a warrant of arrest issued pursuant to this chapter, a superior court warrant of arrest issued pursuant to this chapter, or a bench warrant for a felony issued pursuant to this chapter, where the designated premises is the dwelling of a third party who is not the subject of the arrest warrant; or (ii) a warrant of arrest issued by any other state or federal court for an offense which would constitute a felony under the laws of this state, where the designated premises is the dwelling of a third party who is not the subject of the arrest warrant. § 29. Section 690.05 of the criminal procedure law is amended by adding two new subdivisions 3 and 4 to read as follows: 3. A COURT AUTHORIZED TO ISSUE SEARCH WARRANTS UNDER THIS ARTICLE SHALL BE DEEMED A "COURT OF COMPETENT JURISDICTION" UNDER 18 U.S.C. SECTION 2711(3) OF THE ELECTRONIC COMMUNICATIONS PRIVACY ACT IN CHAPTER 121 (COMMENCING WITH SECTION 2701) OF PART I OF TITLE 18 OF THE UNITED STATES CODE ANNOTATED AND SHALL BE AUTHORIZED TO ISSUE ORDERS AS PROVIDED BY FEDERAL LAW. 4. AS USED IN THIS ARTICLE, THE TERM "ELECTRONIC COMMUNICATIONS SERVICE" MEANS ANY SERVICE WHICH PROVIDES TO USERS THEREOF THE ABILITY S. 2406--A 14 TO SEND OR RECEIVE WIRE OR ELECTRONIC COMMUNICATIONS. "REMOTE COMPUTING SERVICE" MEANS ANY SERVICE WHICH PROVIDES TO USERS THEREOF COMPUTER STORAGE OR PROCESSING SERVICES BY MEANS OF AN ELECTRONIC COMMUNICATIONS SYSTEM. THE TERMS "ELECTRONIC COMMUNICATION SERVICE" AND "REMOTE COMPUT- ING SERVICE" SHALL BE CONSTRUED IN ACCORDANCE WITH THE ELECTRONIC COMMU- NICATIONS PRIVACY ACT IN CHAPTER 121 (COMMENCING WITH SECTION 2701) OF PART I OF TITLE 18 OF THE UNITED STATE CODE ANNOTATED. THIS SECTION SHALL NOT APPLY TO CORPORATIONS THAT DO NOT PROVIDE THOSE SERVICES TO THE GENERAL PUBLIC. § 30. Subdivision 1 of section 690.15 of the criminal procedure law is amended to read as follows: 1. A search warrant must direct a search of one or more of the following: (a) A designated or described place or premises; (b) A designated or described vehicle, as that term is defined in section 10.00 of the penal law; (c) A designated or described person[.]; (D) A DESIGNATED OR DESCRIBED ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE. § 31. Section 690.20 of the criminal procedure law is amended to read as follows: § 690.20 Search warrants; where executable. 1. A search warrant issued by a district court, the New York City criminal court or a superior court judge sitting as a local criminal court may be executed pursuant to its terms anywhere in the state. (A) NOTWITHSTANDING ANY PROVISION OF THIS SUBDIVISION, A SEARCH WARRANT DIRECTING THE PRODUCTION OF ELECTRONIC RECORDS AND DATA FROM A DESIGNATED OR DESCRIBED ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE, MAY BE EXECUTED ON: (I) ANY COMPANY, CORPORATION OR ENTITY WHICH IS HEADQUARTERED OR OPER- ATES WITHIN THE STATE OF NEW YORK; OR (II) ANY COMPANY, CORPORATION OR ENTITY WHICH IS HEADQUARTERED OR OPERATES OUTSIDE OF THE STATE OF NEW YORK, AND WHICH CONDUCTS REGULAR BUSINESS IN NEW YORK; OR (III) ANY COMPANY WHICH OFFERS SERVICES TO RESIDENTS OF NEW YORK, OR DOES BUSINESS IN NEW YORK UNDER A CONTRACT OR TERMS OF SERVICE AGREEMENT WITH A RESIDENT OF THIS STATE, IF ANY PART OF THAT CONTRACT OR AGREEMENT IS TO BE PERFORMED IN NEW YORK. (B) SERVICE ON ANY ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUT- ING SERVICE PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION, MAY BE MADE BY PERSONAL DELIVERY WITHIN THE STATE, BY REGISTERED OR CERTIFIED MAIL. SERVICE MAY ALSO BE MADE BY FACSIMILE OR OTHER ELECTRONIC MEANS IF THE SERVICE IS ACCOMPANIED WITH A CERTIFICATION FROM THE SENDER THAT SENDER IS A POLICE OFFICER, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT OF THE KIND SPECIFIED IN SUBDIVISION ONE OF SECTION 690.05 OF THIS ARTICLE. (C) PERSONAL SERVICE OR SUBSTITUTED SERVICE TO ANY ELECTRONIC COMMUNI- CATION SERVICE OR REMOTE COMPUTING SERVICE MAY ALSO BE MADE BY A POLICE OFFICER, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT OF THE KIND DESCRIBED IN SUBDIVISION ONE OF SECTION 690.05 OF THIS ARTICLE, TO ANY OFFICER, DIRECTOR, MANAGING OR GENERAL AGENT, OR ANY OTHER EMPLOYEE OF SUCH COMPANY OR ENTITY ACTUALLY PRESENT IN NEW YORK STATE OR AT ANY OFFICE OR PLACE OF DOING BUSINESS USED BY SUCH ENTITY LOCATED WITHIN NEW YORK STATE. (D) A SEARCH WARRANT THAT IS ISSUED PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE LIMITED IN SCOPE TO THE DESIGNATED OR DESCRIBED ELECTRONIC RECORDS OR DATA, EITHER IN PAPER OR S. 2406--A 15 ELECTRONIC FORM, THAT ARE MADE, KEPT, OR MAINTAINED BY THE ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE, AND SHALL NOT INCLUDE THE SEIZURE OF ANY OTHER PHYSICAL OR TANGIBLE ITEMS. (E) ANY ELECTRONIC RECORDS OR DATA RESPONSIVE TO A SEARCH WARRANT ISSUED PURSUANT TO THIS SUBDIVISION SHALL BE ADMITTED INTO EVIDENCE BEFORE THE GRAND JURY OR AT TRIAL IN ACCORD WITH THE RULES AND LAWS OF NEW YORK STATE. 2. A search warrant issued by a city court, a town court or a village court may be executed pursuant to its terms only in the county of issu- ance or an adjoining county. 3. THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION TO THE CONTRARY NOTWITHSTANDING, A SEARCH WARRANT DIRECTING THE SEARCH OF A DESIGNATED OR DESCRIBED ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE, MAY BE EXECUTED ON ANY COMPANY, CORPORATION OR ENTITY WHICH IS HEADQUARTERED OR LOCATED OUTSIDE OF THE STATE OF NEW YORK, AND WHICH CONDUCTS ITS REGULAR BUSINESS IN NEW YORK OR THAT OFFERS ITS SERVICES TO RESIDENTS OF NEW YORK. SERVICE ON ANY SUCH ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE ENTITY MAY BE MADE BY PERSONAL DELIVERY WITHIN THE STATE, BY REGISTERED OR CERTIFIED MAIL. SERVICE MAY ALSO BE MADE BY FACSIMILE OR OTHER ELECTRONIC MEANS IF THE SERVICE IS ACCOMPANIED WITH A CERTIFICATION FROM THE SENDER THAT SUCH SENDER IS A POLICE OFFICER, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT SPECIFIED IN SUBDIVISION ONE OF SECTION 690.05 OF THIS ARTICLE. IF AN ENTITY SHALL REFUSE SUCH SERVICE, THEN SUCH POLICE OFFICER, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT LOCATED WITHIN THE JURISDICTION IN WHICH THE ELEC- TRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE ENTITY IS LOCATED MAY SERVE THE WARRANT UPON SUCH ENTITY. A SEARCH WARRANT ISSUED PURSUANT TO THIS SUBDIVISION SHALL BE LIMITED IN SCOPE TO THE DESIGNATED OR DESCRIBED ELECTRONIC RECORDS OR DATA, EITHER IN PAPER OR ELECTRONIC FORM, THAT ARE MADE, KEPT, OR MAINTAINED BY THE ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE, AND SHALL NOT INCLUDE ANY OTHER PHYSICAL OR TANGIBLE ITEMS. ANY ELECTRONIC RECORDS OR DATA RESPONSIVE TO A SEARCH WARRANT ISSUED PURSUANT TO THIS SUBDIVISION SHALL BE ADMITTED INTO EVIDENCE BEFORE THE GRAND JURY OR AT TRIAL IN ACCORD WITH THE RULES AND LAWS OF NEW YORK STATE. § 32. Section 690.30 of the criminal procedure law is amended by adding three new subdivisions 3, 4 and 5 to read as follows: 3. NOTWITHSTANDING ANY PROVISION OF SUBDIVISION ONE OF THIS SECTION, A SEARCH WARRANT THAT IS ISSUED PURSUANT TO PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 690.20 OF THIS ARTICLE IS DEEMED EXECUTED FOR PURPOSES OF THIS ARTICLE AT THE TIME THAT SERVICE IS MADE UPON THE ELECTRONIC COMMU- NICATION SERVICE OR REMOTE COMPUTING SERVICE ENTITY PURSUANT TO PARA- GRAPH (B) OR (C) OF SUBDIVISION ONE OF SECTION 690.20 OF THIS ARTICLE. 4. A COMPANY OR ENTITY WHICH HAS RECEIVED A SEARCH WARRANT ISSUED PURSUANT TO SUBDIVISION ONE OF SECTION 690.20 OF THIS ARTICLE, SHALL PRODUCE AS REQUIRED BY THE SEARCH WARRANT ANY AND ALL RECORDS IN THEIR POSSESSION WHICH ARE RESPONSIVE TO SUCH WARRANT, REGARDLESS WHERE ANY SUCH RECORDS MAY BE PHYSICALLY STORED, MAINTAINED OR KEPT, IF SUCH RECORDS ARE IN FACT ACCESSIBLE ELECTRONICALLY FROM SUCH COMPANY OR ENTI- TY. ANY RECORDS STORED, MAINTAINED OR KEPT BY AN ELECTRONIC COMMUNI- CATION SERVICE OR REMOTE COMPUTING SERVICE MAY BE PRESUMED TO BE WITHIN THE DOMINION AND CONTROL AND POSSESSION BY SUCH COMPANIES OR ENTITIES REGARDLESS OF WHERE SUCH RECORDS ARE PHYSICALLY LOCATED. 5. THE PROVISION OF RECORDS BY A COMPANY OR ENTITY IN RESPONSE TO A SEARCH WARRANT THAT IS ISSUED PURSUANT TO SUBDIVISION ONE OF SECTION 690.20 OF THIS ARTICLE SHALL PRODUCE ALL RECORDS RESPONSIVE TO SUCH S. 2406--A 16 WARRANT TO THE POLICE OFFICER, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT WHO SERVED THE ENTITY WITH SUCH WARRANT, WITHIN A PERIOD NOT TO EXCEED THIRTY DAYS. (A) AN ELECTRONIC COMMUNICATION SERVICE OR REMOTE COMPUTING SERVICE RESPONDING TO A WARRANT UNDER THIS SECTION MAY REQUEST AN EXTENSION OF THE PERIOD FOR COMPLIANCE WITH A WARRANT IF EXTENUATING CIRCUMSTANCES REASONABLY EXIST TO JUSTIFY SUCH EXTENSION. ANY REQUEST FOR EXTENSION SHALL BE MADE TO THE COURT WHICH ISSUED THE WARRANT AND ON WRITTEN NOTICE TO THE POLICE OFFICER, DISTRICT ATTORNEY OR OTHER PUBLIC SERVANT WHO SERVED THE ENTITY WITH SUCH WARRANT. (B) THE FAILURE OF A COMPANY OR ENTITY TO TIMELY DELIVER THE RECORDS SOUGHT BY A WARRANT ISSUED PURSUANT TO SUBDIVISION ONE OF SECTION 690.20 OF THIS ARTICLE SHALL NOT AFFECT THE ADMISSIBILITY OF THAT EVIDENCE IN A CRIMINAL PROCEEDING. (C) THE FAILURE OF A COMPANY OR ENTITY TO TIMELY DELIVER THE RECORDS SOUGHT BY A WARRANT ISSUED PURSUANT TO SUBDIVISION ONE OF SECTION 690.20 OF THIS ARTICLE, IN THE ABSENCE OF A REQUEST FOR AN EXTENSION, SHALL CONSTITUTE PRIMA FACIE EVIDENCE OF CRIMINAL CONTEMPT IN VIOLATION OF SUBDIVISION THREE OF SECTION 215.50 OF THE PENAL LAW. § 33. Section 496.06 of the penal law, as added by section 14 of subpart A of part H of chapter 55 of the laws of 2014, is amended to read as follows: § 496.06 Public corruption. 1. A person commits the crime of public corruption when: (a) (i) being a public servant he or she commits a specified offense through the use of his or her public office, or (ii) being a person acting in concert with such public servant he or she commits a specified offense, and (b) the state or any political subdivision thereof or any governmental instrumentality within the state is the owner of the property. 2. A "specified offense" is an offense defined by any of the following provisions of this chapter: section 155.25 (petit larceny); section 155.30 (grand larceny in the fourth degree); section 155.35 (grand larceny in the third degree); section 155.40 (grand larceny in the second degree); section 155.42 (grand larceny in the first degree); section 190.60 (scheme to defraud in the [second] FIFTH degree); SECTION 190.62 (SCHEME TO DEFRAUD IN THE FOURTH DEGREE); SECTION 190.63 (SCHEME TO DEFRAUD IN THE THIRD DEGREE); SECTION 190.64 (SCHEME TO DEFRAUD IN THE SECOND DEGREE); or section 190.65 (scheme to defraud in the first degree). § 34. Section 190.77 of the penal law, as amended by chapter 226 of the laws of 2008, subdivision 1 as separately amended by chapter 279 of the laws of 2008, is amended to read as follows: § 190.77 Offenses involving theft of identity; definitions. 1. For the purposes of sections 190.78, 190.79, 190.80 [and], 190.80-a, 190.80-B, 190.80-C and 190.85 of this article "personal iden- tifying information" means a person's name, address, telephone number, date of birth, driver's license number, social security number, place of employment, mother's maiden name, financial services account number or code, savings account number or code, checking account number or code, brokerage account number or code, credit card account number or code, debit card number or code, automated teller machine number or code, taxpayer identification number, computer system password, signature or copy of a signature, electronic signature, unique biometric data that is a fingerprint, voice print, retinal image or iris image of another person, telephone calling card number, mobile identification number or code, electronic serial number or personal identification number, or any S. 2406--A 17 other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of anoth- er person. 2. For the purposes of sections 190.78, 190.79, 190.80, 190.80-a, 190.80-B, 190.80-C, 190.81, 190.82 and 190.83 of this article: a. "electronic signature" shall have the same meaning as defined in subdivision three of section three hundred two of the state technology law. b. "personal identification number" means any number or code which may be used alone or in conjunction with any other information to assume the identity of another person or access financial resources or credit of another person. c. "member of the armed forces" shall mean a person in the military service of the United States or the military service of the state, including but not limited to, the armed forces of the United States, the army national guard, the air national guard, the New York naval militia, the New York guard, and such additional forces as may be created by the federal or state government as authorized by law. § 35. Subdivision 2 of section 190.83 of the penal law, as separately amended by chapters 226 and 279 of the laws of 2008, is amended to read as follows: 2. he or she has been previously convicted within the last five years of identity theft in the third degree as defined in section [190.78] 190.80, identity theft in the second degree as defined in section [190.79] 190.80-A, identity theft in the first degree as defined in section [190.80] 190.80-B, unlawful possession of personal identifica- tion information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in this section, [unlawful] CRIMINAL possession of a skimmer device in the second degree as defined in section 190.85, [unlawful] CRIMINAL possession of a skimmer device in the first degree as defined in section 190.86, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chap- ter; or § 36. Paragraph (s) of subdivision 8 of section 700.05 of the criminal procedure law, as added by chapter 619 of the laws of 2002, is amended to read as follows: (s) Identity theft in the second degree, as defined in section [190.79] 190.80-A of the penal law, identity theft in the first degree, as defined in section [190.80] 190.80-B of the penal law, unlawful possession of personal identification information in the second degree, as defined in section 190.82 of the penal law, and unlawful possession of personal identification information in the first degree, as defined in section 190.83 of the penal law. § 37. Paragraph (a) of subdivision 3 of section 490.05 of the penal law, as amended by section 7 of part A of chapter 1 of the laws of 2004, is amended to read as follows: (a) "Specified offense" for purposes of this article means a class A felony offense other than an offense as defined in article two hundred twenty, a violent felony offense as defined in section 70.02, manslaughter in the second degree as defined in section 125.15, criminal tampering in the first degree as defined in section 145.20, identity S. 2406--A 18 theft in the second degree as defined in section [190.79] 190.80-A, identity theft in the first degree as defined in section [190.80] 190.80-B, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, money laundering in support of terrorism in the fourth degree as defined in section 470.21, money laundering in support of terrorism in the third degree as defined in section 470.22, money laun- dering in support of terrorism in the second degree as defined in section 470.23, money laundering in support of terrorism in the first degree as defined in section 470.24 of this chapter, and includes an attempt or conspiracy to commit any such offense. § 38. Subdivision 1 and paragraph (b) of subdivision 4 of section 60.27 of the penal law, subdivision 1 as amended by chapter 279 of the laws of 2008, and paragraph (b) of subdivision 4 as amended by chapter 313 of the laws of 2011, are amended to read as follows: 1. In addition to any of the dispositions authorized by this article, the court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense, and after providing the district attorney with an opportunity to be heard in accordance with the provisions of this subdivision, require the defendant to make restitu- tion of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby and, in the case of a violation of section 190.78, 190.79, 190.80, 190.80-A, 190.80-B, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action taken against the victim. The district attorney shall where appropriate, advise the court at or before the time of sentencing that the victim seeks restitution or reparation, the extent of injury or economic loss or damage of the victim, and the amount of restitution or reparation sought by the victim in accordance with his or her responsibilities under subdivision two of section 390.50 of the criminal procedure law and article twenty-three of the executive law. The court shall hear and consider the information presented by the district attorney in this regard. In that event, or when the victim impact statement reports that the victim seeks restitution or reparation, the court shall require, unless the interests of justice dictate otherwise, in addition to any of the dispositions authorized by this article that the defendant make restitution of the fruits of the offense and reparation for the actual out-of-pocket loss and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action, caused thereby to the victim. In the event that restitution or reparation are not ordered, the court shall clearly state its reasons on the record. Adverse action as used in this subdivision shall mean and include actual loss incurred by the victim, including an amount equal to the value of the time reasonably spent by the victim attempting to remediate the harm incurred by the victim from the offense, and the consequential financial losses from such action. (b) the term "victim" shall include the victim of the offense, the representative of a crime victim as defined in subdivision six of section six hundred twenty-one of the executive law, an individual whose identity was assumed or whose personal identifying information was used in violation of section 190.78, 190.79 [or], 190.80, 190.80-A OR 190.80-B of this chapter, or any person who has suffered a financial loss as a direct result of the acts of a defendant in violation of section 190.78, 190.79, 190.80, 190.80-A, 190.80-B, 190.82 or 190.83 of S. 2406--A 19 this chapter, a good samaritan as defined in section six hundred twen- ty-one of the executive law and the office of victim services or other governmental agency that has received an application for or has provided financial assistance or compensation to the victim. A victim shall also mean any owner or lawful producer of a master recording, or a trade association that represents such owner or lawful producer, that has suffered injury as a result of an offense as defined in article two hundred seventy-five of this chapter. § 39. Severability. If any clause, sentence, paragraph, subdivision, section or part of this act shall be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part of this act directly involved in the controversy in which such judgment shall have been rendered. § 40. This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
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