Bill S162-2011

Establishes definitions with respect to larceny from mentally disabled or mentally incapacitated persons

Establishes definitions with respect to larceny from mentally disabled or mentally incapacitated persons; sets forth an affirmative defense if the defendant appropriated the property in the course of rendering assistance which benefitted such person in the management of his or her affairs and the value of such property was commensurate with the benefit conferred.

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  • Jan 4, 2012: REFERRED TO CODES
  • Jan 5, 2011: REFERRED TO CODES

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BILL NUMBER:S162

TITLE OF BILL: An act to amend the penal law, in relation to creating definitions with respect to larceny from a mentally disabled or mentally incapacitated person and establishing an affirmative defense thereto

PURPOSE: This bill amends the penal law to include the crime of financial exploitation of the elderly by amending section 155.00 et seq., (larceny). This legislation was recommended by the New York State District Attorneys Association's Elder Abuse Committee.

SUMMARY OF PROVISIONS: Section 1 of the bill amends section 155.00 of the penal law by adding new subdivisions 10 and 11 to define the terms "mentally disabled" and "mentally incapacitated." Section 2 of the bill amends section 155.05(2)(a) of the penal law which defines a wrongful taking to include thefts by defendants who know or have reason to know that the victim suffers from a mental disability or incapacity. Section 3 of the bill adds a new subdivision 3 to section 155.15 of the penal law to create an affirmative defense applicable to cases in which the defendant obtained property in the course of rendering assistance which benefited the elderly owner, as long as the value of appropriated property was commensurate with the benefit received.

JUSTIFICATION: According to the National Center on Elder Abuse, between one and ten percent of the elderly are abused each year. As Americans live longer and the number of older adults grow, it unfortunately, can be expected there will be an increasing number of older adults who will be abused or exploited. A report by the National Conference of State Legislatures predicts by the year 2050 as many as one in five Americans could be 65 years of age or older. A 1996 U.S. Census Bureau report entitled "65+ in the United States" indicated there is presently a brief window of opportunity for state and local policy makers to address the oncoming challenge of the oncoming age wave. Unlike many states in this country, the New York State Penal Law does not specifically address crimes involving older adults.

In order to address this problem, the New York State District Attorneys Association's Elder Abuse Subcommittee researched and recommended this bill be introduce in the Legislature. The amendments proposed to the penal law will enable prosecutors to charge exploiters who knowingly and wrongfully take, obtain or withhold property from a mentally incapacitated owner. Currently, criminal investigations of offenders who steal from impaired seniors are often closed for many of the same reasons domestic violence and child abuse cases do not result in successful Prosecutions. Prosecutors are faced with vulnerable victims who are fearful, isolated, confused and dependent on the caregiver. The crimes are often committed at home or at the bank and usually do not involve many witnesses. The victim's mental capacity may be questionable. They may be baffled by their finances and have little or no memory of whether they signed checks or documents or gave permission or authority to transfer funds. Many of the victims suffer

from mental impairments such as Alzheimer's disease or senile dementia, which make them unable to consent to the taking of property. Moreover, even if available, the victim's cognitive impairment may make them incompetent to testify in court. Therefore, the very reasons why a victim may be attractive to an exploiter may disqualify him or her as a competent witness.

District Attorney offices in New York City have experienced many cases where seniors have been exploited by people they trust. For example, a few years ago a woman in her thirties befriended an eighty year old woman at a neighborhood coffee shop. They talked and the younger woman agreed to meet the older woman at her residence. The younger woman agreed to help the older woman clean her apartment and was soon running errands for her, including visiting the local ATM with the older woman's bankcard. Within a few months the older woman's account was depleted. When the police questioned the young woman, she admitted to using the ATM card, but insisted the older woman had given her the money and several other large cash gifts. The older woman seemed surprised the younger woman was holding her ATM card and was confused about whether she had given the gifts or had made loans. According to neighbors, the elderly woman's mental state had been deteriorating for some time. Although the victim's mental state was obvious to anyone who talked to her for any length of time, and was confirmed by doctors, the case was not prosecuted because of a void in the larceny statute.

PEOPLE V. CAMIOLA, 225 A.D. 2d 380 (1st Dept 1996) appeal denied 86 N.Y.2d 677, (1998), addresses the issue of whether a theft can be established against a person who is mentally impaired. In that case, there was "overwhelming evidence" the defendant, who prepared the elderly and senile victim's tax returns, stole from her over a two-year period. Id at 380. By the time of trial, the victim had passed away and the defendant testified the stolen funds were a gift from the victim. The trial court ruled that evidence relating to the victim's state at the time of the transfer was relevant in determining whether she had the capacity to consent to appropriation of her funds. The first Department's opinion in Camiola affirmed that a victim's mental capacity or lack thereof, while not specifically an element of the larceny statute, should be assessed in determining whether there was a wrongful taking of property.

This bill codifies CAMIOLA and further clarifies that the wrongful taking, obtaining or withholding of property from a victim who is mentally disabled or mentally incapacitated is a criminal act. Under this bill, the wrongful taking would only be a crime if the defendant did so with the requisite mental intent currently defined in section 155.05(1) of the penal law. Moreover, concerned caregivers and family members who took steps to manage their elderly relatives and companions affairs could continue to act in good faith, knowing in order to qualify as a crime, the taking of property must be wrongful and would not include conduct where the taker of the property was rendering assistance which benefited the elderly owner. Accordingly, this bill also amends section 155.15 which creates an affirmative defense applicable to certain Prosecutions under section 155.05(2)(a) in which the defendant obtained property in the course of rendering

assistance which benefited the impaired victim as long as the value of the property taken was commensurate with the benefit conferred.

By correcting this void in the larceny statute, this bill will greatly improve the ability of prosecutors to charge exploiters who prey on impaired seniors and vulnerable individuals.

LEGISLATIVE HISTORY: S.7079; A.10219 of 1998; Passed Senate S.810 Passed Senate; in 1999 and 2000 S.3279/A.2851 of 2001/2002; Passed Senate in 2001 and 2002 S.506/A.2427 of 2003/2004; Passed Senate in 2003 and 2004 S.702/A.1797 of 2005/2006; Referred to Codes S.951/A.306 of 2007/2009; Passed Senate/Died in Assembly S.2150/A.2562 of 2009/2010; Referred to Codes

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: First of November next after it shall have become law.


Text

STATE OF NEW YORK ________________________________________________________________________ 162 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________
Introduced by Sens. MAZIARZ, ALESI, DeFRANCISCO, DIAZ, GOLDEN, GRIFFO, LANZA, RANZENHOFER, SALAND, SEWARD, SKELOS -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to creating definitions with respect to larceny from a mentally disabled or mentally incapacitated person and establishing an affirmative defense thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 155.00 of the penal law is amended by adding two new subdivisions 10 and 11 to read as follows: 10. "MENTALLY DISABLED" MEANS THAT A PERSON SUFFERS FROM A MENTAL DISEASE, DEFECT OR CONDITION WHICH RENDERS HIM OR HER INCAPABLE OF APPRAISING WHETHER TO GIVE OR WITHHOLD CONSENT TO THE TAKING, OBTAINING OR WITHHOLDING OF HIS OR HER PROPERTY. 11. "MENTALLY INCAPACITATED" MEANS THAT A PERSON IS RENDERED INCAPABLE OF APPRAISING WHETHER TO GIVE OR WITHHOLD CONSENT TO THE TAKING, OBTAIN- ING OR WITHHOLDING OF HIS OR HER PROPERTY OWING TO THE INFLUENCE OF A CONTROLLED OR INTOXICATING SUBSTANCE. S 2. Paragraph (a) of subdivision 2 of section 155.05 of the penal law is amended to read as follows: (a) By conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, embezzlement, or obtaining property by false pretenses, AND SUCH CONDUCT INCLUDES BUT IS NOT LIMITED TO, THE WRONGFUL TAKING, OBTAINING OR WITHHOLDING OF PROPER- TY BY A PERSON WHO KNOWS OR HAS REASON TO KNOW THAT THE OWNER IS A MENTALLY DISABLED OR MENTALLY INCAPACITATED PERSON; S 3. Section 155.15 of the penal law is amended by adding a new subdi- vision 3 to read as follows: 3. IN ANY PROSECUTION FOR LARCENY COMMITTED BY TRESPASSORY TAKING OR EMBEZZLEMENT FROM A MENTALLY DISABLED OR MENTALLY INCAPACITATED PERSON,
IT IS AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT APPROPRIATED SUCH PROP- ERTY IN THE COURSE OF RENDERING ASSISTANCE WHICH BENEFITTED SUCH PERSON IN THE MANAGEMENT OF HIS OR HER AFFAIRS, AND THE VALUE OF SUCH PROPERTY WAS COMMENSURATE WITH THE BENEFIT CONFERRED. S 4. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.

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