S T A T E   O F   N E W   Y O R K
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                                   44

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by M. of A. GANTT -- read once and referred to the Committee
  on Codes

AN ACT to amend the penal law, in relation to prohibiting criminal pros-
  ecution under certain rental-purchase agreements

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 165.00 of the penal law, as amended by chapter 372
of the laws of 1995, is amended to read as follows:
S 165.00 Misapplication of property.
  1. A person is guilty of misapplication of  property  when,  knowingly
possessing  personal  property  of another pursuant to an agreement that
the same will be returned to the owner at a future time,
  (a) he OR SHE loans, leases, pledges,  pawns  or  otherwise  encumbers
such property without the consent of the owner thereof in such manner as
to  create  a risk that the owner will not be able to recover it or will
suffer pecuniary loss; or
  (b) he OR SHE intentionally refuses to return personal property valued
in excess of one hundred dollars to the owner pursuant to the  terms  of
the  rental  agreement provided that the owner shall have made a written
demand for the return of such personal property in person or  by  certi-
fied  mail at an address indicated in the rental agreement and he OR SHE
intentionally refuses to return such personal property for a  period  of
thirty  days  after  such  demand has been received or should reasonably
have been received by him OR HER. Such written demand shall  state:  (i)
the  date  and  time  at  which  the  personal property was to have been
returned under the rental  agreement;  (ii)  that  the  owner  does  not
consent to the continued withholding or retaining of such personal prop-
erty and demands its return; and (iii) that the continued withholding or
retaining  of the property may constitute a class A misdemeanor punisha-
ble by a fine of up to one thousand dollars or by a sentence to  a  term

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

                                                           LBD03154-01-3

A. 44                               2

of  imprisonment for a period of up to one year or by both such fine and
imprisonment.
  (c)  as  used  in paragraph (b) of this subdivision and in subdivision
three of this section, the terms owner, personal  property,  and  rental
agreement  shall  be  defined  as  [in  subdivision one of section three
hundred ninety-nine-w of the general business law.] FOLLOWS:
  (I) "OWNER" SHALL INCLUDE ANY PERSON, PARTNERSHIP, FIRM,  ASSOCIATION,
OR  CORPORATION ENGAGED IN THE BUSINESS OF RENTING PERSONAL PROPERTY FOR
PROFIT;
  (II) "PERSONAL PROPERTY" SHALL INCLUDE BUT NOT BE LIMITED TO  TANGIBLE
CHATTELS  USED  FOR  PERSONAL, HOUSEHOLD, OR BUSINESS PURPOSES BUT SHALL
NOT INCLUDE MOTOR VEHICLES; AND
  (III) "RENTAL AGREEMENT" SHALL MEAN THE TOTAL  LEGAL  OBLIGATION  THAT
RESULTS  FROM  A  WRITTEN RENTAL CONTRACT BETWEEN A PERSON AND THE OWNER
FOR THE RENTAL OF PERSONAL PROPERTY.
  2. In any prosecution under paragraph (a) of subdivision one  of  this
section,  it  is  a  defense  that,  at  the  time  the  prosecution was
commenced, (a) the defendant had recovered possession of  the  property,
unencumbered  as a result of the unlawful disposition, and (b) the owner
had suffered no material economic loss  as  a  result  of  the  unlawful
disposition.
  3.  In  any prosecution under paragraph (b) of subdivision one of this
section, it is a defense that at the time the prosecution was commenced,
(a) the owner had recovered possession  of  the  personal  property  and
suffered  no  material  economic  loss  as  a  result  of  the  unlawful
retention; or (b) the defendant is unable to return such personal  prop-
erty  because  it  has been accidentally destroyed or stolen; or (c) the
owner failed to comply with the  provisions  of  section  three  hundred
ninety-nine-w  of  the  general  business  law AS ADDED BY CHAPTER THREE
HUNDRED SEVENTY-TWO OF THE LAWS OF NINETEEN HUNDRED NINETY-FIVE.
  4. THIS SECTION SHALL NOT APPLY TO PROPERTY SUBJECT TO  A  RENTAL-PUR-
CHASE  AGREEMENT.  A  "RENTAL-PURCHASE AGREEMENT" MEANS AN AGREEMENT FOR
THE USE OF MERCHANDISE BY A CONSUMER FOR PERSONAL, FAMILY, OR  HOUSEHOLD
PURPOSES,  FOR AN INITIAL PERIOD OF FOUR MONTHS OR LESS, THAT IS RENEWA-
BLE WITH EACH PAYMENT AFTER THE INITIAL  PERIOD  AND  THAT  PERMITS  THE
LESSEE TO BECOME THE OWNER OF THE PROPERTY.
  Misapplication of property is a class A misdemeanor.
  S 2. This act shall take effect immediately.