Creates the crime of criminal practices with an access device.
TITLE OF BILL: An act to amend the penal law, in relation to creating the crime of criminal practices with an access device
PURPOSE OR GENERAL IDEA OF BILL: This bill prohibits criminal practices with an access device and classifies such crimes as either a class A misdemeanor, a class S felony, or a class felony, depending on the severity of the offense. These new crimes would subject individuals to criminal liability for certain actions taken with a fraudulent or counterfeit credit card or other devices that grant the holder access to money, goods, or services.
SUMMARY OF PROVISIONS:
Section One amends the penal law by adding a new section 165.21 which defines criminal practices with an access device. For purposes of this section, an "access device" shall mean any card, service, number, instrument, service or any means of account access that can be used alone or in conjunction with another device to obtain money, goods, services, or anything of value or a transfer of funds; a "counterfeit access device" shall mean any access device that is not an authentic access device; an "unauthorized access device" shall mean any access device that is lost, stolen, expired, revoked, canceled, or obtained with the intent to defraud; and "device making equipment" shall mean any equipment, mechanism, or impression designed or primarily used for making an access device or a counterfeit access device.
The crime of criminal practices with an access device in the third degree is categorized as a class A misdemeanor, criminal practices with an access device in the second degree is categorized as a class E felony, and criminal practices with an access device in the third degree is categorized as a class D felony.
Section Two is the effective date.
JUSTIFICATION: According to the Federal Bureau of Investigation, organized retail theft is a crime that costs United States retailers about $30 billion per year. Organized retail crime comprises a wide spectrum of high-volume and highly organized theft rings that cost New York retailers hundreds of millions of dollars annually and, more importantly, compromise the health, safety, and welfare of unsuspecting New York consumers. And for every item stolen, New York State and local governments lose out on sales tax revenue - again, adding up to millions annually. Organized retail theft is the most serious security issue facing many retail merchants, including apparel and accessory retailers, mass merchandisers, do-it-yourself stores, drug stores, and supermarkets. It's a crime that has grown substantially over the past decade, with the emergence of organized criminal theft at an unprecedented level. Retailers are forced to offset these significant costs through higher prices - meaning that honest consumers are forced to endure the impact of organized retail theft, and professional shoplifters.
One of the ways that criminals commit these offenses is through the use of counterfeit or fraudulently obtained credit cards, account numbers, gift cards, or other means that grant access to funds or
things of value. In addition to harming retailers, these offenses also harm other consumers when their account numbers are stolen. This bill seeks to crack down on these criminals by penalizing them when they knowingly and with the intent to defraud engage in transactions that rise to the level of organized retail theft. An offense in violation of this section could include possession of a counterfeit or unauthorized access devices, sale of access device information, producing or trafficking access devices, as well as certain unauthorized uses of an access device. Criminalizing these acts deters individuals or members of crime rinds from using access devices fraudulently.
S.6954B of 2012 passed in the Senate/ A.10324A referred to Codes
FISCAL IMPLICATIONS: None
EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 2927--B 2013-2014 Regular Sessions IN SENATE January 25, 2013 ___________Introduced by Sens. ZELDIN, LANZA, MAZIARZ, RANZENHOFER, SAVINO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- reported favorably from said committee and committed to the Committee on Consumer Protection -- reported favora- bly from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the penal law, in relation to creating the crime of criminal practices with an access device THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The penal law is amended by adding four new sections 165.21, 165.22, 165.23 and 165.24 to read as follows: S 165.21 CRIMINAL PRACTICES WITH AN ACCESS DEVICE; DEFINITIONS. FOR THE PURPOSES OF SECTIONS 165.22, 165.23 AND 165.24 OF THIS ARTI- CLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: 1. "ACCESS DEVICE" SHALL MEAN ANY CARD, INCLUDING GIFT CARD, PLATE, CODE, INCLUDING UNIVERSAL PRICE CODE LABEL, ACCOUNT NUMBER, ELECTRONIC SERIAL NUMBER, MOBILE IDENTIFICATION NUMBER, PERSONAL IDENTIFICATION NUMBER, OR OTHER TELECOMMUNICATIONS SERVICE, EQUIPMENT, OR INSTRUMENT IDENTIFIER, INCLUDING A RADIO FREQUENCY IDENTIFICATION TRANSPONDER, OR OTHER MEANS OF ACCOUNT ACCESS THAT CAN BE USED, ALONE OR IN CONJUNCTION WITH ANOTHER ACCESS DEVICE, TO OBTAIN MONEY, GOODS, SERVICES, OR ANY OTHER THING OF VALUE, OR THAT CAN BE USED TO INITIATE A TRANSFER OF FUNDS (OTHER THAN A TRANSFER ORIGINATED SOLELY BY PAPER INSTRUMENT); 2. "COUNTERFEIT ACCESS DEVICE" SHALL MEAN ANY ACCESS DEVICE THAT IS COUNTERFEIT, FICTITIOUS, ALTERED, OR FORGED, OR AN IDENTIFIABLE COMPO- NENT OF AN ACCESS DEVICE OR A COUNTERFEIT ACCESS DEVICE;EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01051-07-3 S. 2927--B 2
3. "UNAUTHORIZED ACCESS DEVICE" SHALL MEAN ANY ACCESS DEVICE THAT IS LOST, STOLEN, EXPIRED, REVOKED, CANCELED, OR OBTAINED WITH INTENT TO DEFRAUD; 4. "PRODUCE" SHALL MEAN DESIGN, ALTER, AUTHENTICATE, DUPLICATE, OR ASSEMBLE; 5. "TRAFFIC" SHALL MEAN TRANSFER, OR OTHERWISE DISPOSE OF, TO ANOTHER IN A FRAUDULENT MANNER, OR OBTAIN CONTROL OF WITH INTENT TO FRAUDULENTLY TRANSFER OR DISPOSE OF; 6. "DEVICE-MAKING EQUIPMENT" SHALL MEAN ANY EQUIPMENT, MECHANISM, OR IMPRESSION DESIGNED OR PRIMARILY USED FOR MAKING AN UNAUTHORIZED ACCESS DEVICE OR A COUNTERFEIT ACCESS DEVICE; 7. "CREDIT CARD SYSTEM NUMBER" SHALL MEAN A FINANCIAL INSTITUTION OR OTHER ENTITY THAT IS A MEMBER OF A CREDIT CARD SYSTEM, INCLUDING AN ENTITY, WHETHER AFFILIATED WITH OR IDENTICAL TO THE CREDIT CARD ISSUER, THAT IS THE SOLE MEMBER OF A CREDIT CARD SYSTEM. S 165.22 CRIMINAL PRACTICES WITH AN ACCESS DEVICE IN THE THIRD DEGREE. A PERSON IS GUILTY OF CRIMINAL PRACTICES WITH AN ACCESS DEVICE IN THE THIRD DEGREE WHEN HE OR SHE KNOWINGLY OR WITH THE INTENT TO DEFRAUD, PRODUCES, USES OR TRAFFICS IN ONE OR MORE COUNTERFEIT ACCESS DEVICE. CRIMINAL PRACTICES WITH AN ACCESS DEVICE IN THE THIRD DEGREE IS A CLASS A MISDEMEANOR. S 165.23 CRIMINAL PRACTICES WITH AN ACCESS DEVICE IN THE SECOND DEGREE. A PERSON IS GUILTY OF CRIMINAL PRACTICES WITH AN ACCESS DEVICE IN THE SECOND DEGREE WHEN HE OR SHE: 1. KNOWINGLY AND WITH THE INTENT TO DEFRAUD, TRAFFICS IN OR USES ONE OR MORE UNAUTHORIZED DEVICE DURING ANY ONE-YEAR PERIOD, AND BY SUCH CONDUCT OBTAINS ANYTHING OF VALUE AGGREGATING ONE THOUSAND DOLLARS OR MORE DURING THAT PERIOD; OR 2. KNOWINGLY AND WITH INTENT TO DEFRAUD POSSESSES FIFTEEN OR MORE DEVICES WHICH ARE COUNTERFEIT OR UNAUTHORIZED ACCESS DEVICES; OR 3. KNOWINGLY AND WITH INTENT TO DEFRAUD PRODUCES, TRAFFICS IN, HAS CONTROL OR CUSTODY OF, OR POSSESSES DEVICE-MAKING EQUIPMENT. CRIMINAL PRACTICES WITH AN ACCESS DEVICE IN THE SECOND DEGREE IS A CLASS E FELONY. S 165.24 CRIMINAL PRACTICES WITH AN ACCESS DEVICE IN THE FIRST DEGREE. A PERSON IS GUILTY OF CRIMINAL PRACTICES WITH AN ACCESS DEVICE IN THE FIRST DEGREE WHEN HE OR SHE: 1. KNOWINGLY AND WITH INTENT TO DEFRAUD EFFECTS TRANSACTIONS WITH ONE OR MORE ACCESS DEVICES ISSUED TO ANOTHER PERSON OR PERSONS AND USED WITHOUT THE CONSENT OF SUCH PERSON, TO RECEIVE PAYMENT OR ANY OTHER THING OF VALUE DURING ANY ONE-YEAR PERIOD THE AGGREGATE VALUE OF WHICH IS EQUAL TO OR GREATER THAN ONE THOUSAND DOLLARS; OR 2. WITHOUT THE AUTHORIZATION OF THE ISSUER OF THE ACCESS DEVICE KNOW- INGLY AND WITH INTENT TO DEFRAUD SOLICITS A PERSON FOR THE PURPOSE OF: (A) OFFERING AN ACCESS DEVICE; OR (B) SELLING INFORMATION REGARDING OR AN APPLICATION TO OBTAIN AN ACCESS DEVICE. CRIMINAL PRACTICES WITH AN ACCESS DEVICE IN THE FIRST DEGREE IS A CLASS D FELONY. S 2. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.