Senate Bill S5482B

                                
 
BILL NUMBER: S5482

SPONSOR: BRESLIN
 
TITLE OF BILL:

An act to amend the general business law, in relation to payment and
retainage in construction contracts

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill amends the general business law to provide for the timely
release of retainage on private construction jobs when such job has met
the requirements of "substantial completion."

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 amends section 756 of the general business law by adding a
definition for the term "substantial completion." Such "substantial
completion" shall mean that when the work is sufficiently completed in
accordance with the construction contract that the project owner may
occupy or utilize the work for its intended use.
              

Section 2 amends, subdivision (2) of Section 756-a of the General Busi-
ness Law stating that a contractor shall be entitled to submit a final
invoice for payment upon reaching such substantial completion and
removes language stating that a contractor may shall be entitled to
submit a final invoice "upon the performance of all the contractor's
obligation under the contract."

Section 3 amends Section 756-c of the General Business Law limiting the
retainage permitted to "no more than five per centum" of the contract
sum. Existing law does not state a maximum amount of retainage and
leaves it to the mutual agreement of the relevant parties.

Section 4 states that the act shall take effect immediately and shall
apply to contracts entered into on or after such effective date.

 
JUSTIFICATION:

Currently, subcontractors who have finished their work on a private job
must wait until the entire project is complete before receiving their
retainage. This creates hardships for subcontractors who must finance
their work in advance and sometimes wait for unreasonably long periods
of time for payment. This bill creates a new definition for "substantial
completion" of a construction contract and permits a contractor to issue
a final invoice upon such completion. It also limits retainage to no
more than 5% of the contract. This bill ensures that all parties under-
stand when a project is completed for invoicing purposes as well as
limiting the amount of retainage that can be withheld to a reasonable
amount.

 
PRIOR LEGISLATIVE HISTORY:

2019/2020: S.981 Referred to Consumer Protection 2017/2018: S.8848
Referred to Consumer Protection

 
FISCAL IMPLICATIONS:

None.

                                 
BILL NUMBER: S5482A         REVISED 08/17/2021

SPONSOR: BRESLIN
 
TITLE OF BILL:

An act to amend the general business law, in relation to payment and
retainage in construction contracts

 
PURPOSE OR GENERAL IDEA OF BILL::

The purpose of the bill is to amend the criminal procedure law, in
relation to jury deliberations.

 
SUMMARY OF SPECIFIC PROVISIONS::

Section 1. This act shall be known and may be cited as the "Tiarah Poyau
Act". § 2. Section 310.30 of the criminal procedure law, as amended by
chapter 208 of the laws of 1980, is amended to read as follows: § 310.30
Jury deliberation; request for information. At any time during its
deliberation, the jury may request the court for further instruction or
information with respect to the law, with respect to the content or
substance of any trial evidence, or with respect to any other matter
              

pertinent to the jury's consideration of the case. Upon such a request,
the court must direct that the jury be returned to the courtroom and,
after notice to both the people and counsel for the defendant, and in
the presence of the defendant, must give such requested information or
instruction as the court deems proper. With the consent of the parties
and upon the request of the jury for further instruction with respect to
a statute, the court may also give to the jury copies of the text of any
statute, which, in its discretion, the court deems proper.

 
JUSTIFICATION::

This bill aims to provide jurors with written information and instruc-
tion pertinent to the jury's consideration of the case. Doing so will
alleviate the stress of having to remember crucial definitions that can
potentially determine the faith of a trial, specially knowing that both
oral instruction and jury verdict forms are not easy to understand.

In 2016, Tiarah Poyau's life was taken due to a senseless gun violence
act at a well-known festival in Brooklyn. She was in her last year of a
five-year program at St. John's College, where she was studying to be an
accountant.

Based on the New York State Unified Court System, 465,365 jurors
appeared for service in 2019. When cases are tried continuously, it is
easier for the jurors to deliberate their findings or deliberations when
giving written instructions that can be helpful to them. The State of
New York does not permit jurors to take the jury instruction with them
to the deliberation room, This legislation permits a trial judge to
respond to a deliberating jury's request for written instructions
regarding the elements of one or more of the crimes or defenses submit-
ted by providing the requested materials to the jury.

It is not uncommon, especially in complex prosecutions involving numer-
ous counts with multiple defendants, for a deliberating jury to ask the
trial judge to provide them with written instructions on elements of
some or all of the offenses submitted, and any related defenses. There
is nothing in the existing law that permits a court to provide the jury
with these materials. A trial judge who complies with such a request,
especially without first obtaining the defendant's consent, may be
committing a reversible error, hence People v. Damiano (1995); People v.
Johnson (1993) and People v. Owens (1987).

When the court provides jurors with a written definition of the differ-
ent charges they have to consider during a trial, it can ensure the jury
deliberation process would be fair. This can result in victim families
getting the trial they deserve. No family member would like to see the
killer of their loved one receiving a lesser charge than what they
should get. With this legislation, there would be no need to obtain the
consent of the parties before such submission. Counsel for both parties
would be permitted to examine the written instructions and listen to
thereon. Then the documents are marked as a court exhibit before their
submission to the jury.

Before submitting the written instruction, the judge would have to
re-read the instruction to the jury. This measure would facilitate the
deliberative process by allowing a jury that requests to take into its
deliberations written instructions regarding the elements or defenses
submitted for its consideration.

In Oregon and, Virginia jurors can take the written copies of the jury
instruction to the jury room. Arizona State allows jurors to take notes
that must remain in the jury room. The State of Texas allows jurors to
take notes to be able to refresh their memory.

This bill allows jurors to request information or instruction from the
court that is relevant to the current trial.Doing so will prevent jurors
from delivering inconsistent answers on the verdict forms as well as
other comprehension errors.

 
PRIOR LEGISLATIVE HISTORY::

2019-2020 S8772 referred to Rules

 
FISCAL IMPLICATIONS::

None

 
EFFECTIVE DATE::

This act shall take effect immediately and shall apply to all trials
commenced on or after such effective date.