Creates a crime of leading a retail theft enterprise.
Ayes (61): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Excused (2): Adams, Hannon
TITLE OF BILL: An act to amend the penal law, in relation to creating a crime of leading a retail theft enterprise
PURPOSE OR GENERAL IDEA OF BILL: This bill relates to prohibitions and penalties against persons who lead an organized retail theft enterprise by organizing, supervising, financing or managing such criminal activity.
SUMMARY OF PROVISIONS:
Section One amends the penal law by adding a new section 150.50 which defines the circumstances that would give rise to the crime of leading an organized retail theft enterprise. The terms "anti-shoplifting or inventory control device countermeasures", "conceal", "full retail value", "merchandise", "merchant", "organized retail theft", "organized retail theft enterprise", "person", "premises of a store or retail mercantile establishment", "shoplifting", "store or other retail mercantile establishment", and "under-ring" are defined for purposes of this section.
Section Two provides that the crime of leading an organized retail theft enterprise constitutes a grand larceny in the second degree and is a class C felony.
Section Three is the effective date.
JUSTIFICATION: This bill is part of a package of legislation that seeks to cut down on patterns of criminal activity that rise to the level of "organized retail theft". According to the Federal Bureau of Investigation, organized retail theft 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 specifically hundreds of millions of dollars annually and, more importantly, compromise the health, safety, and welfare of unsuspecting New York consumers. 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, and has continued to grow at 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.
Those individuals who lead retail theft crime rings should be punished to the fullest extent possible. By amending the penal-law to allow those
convicted of leading an organized retail theft enterprise to be charged with higher level felonies, the chain of persons involved in these types of schemes can be deterred and cut off from the top.
LEGISLATIVE HISTORY: S.6959B (of 2012) passed in the Senate.
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 ________________________________________________________________________ 2929 2013-2014 Regular Sessions IN SENATE January 25, 2013 ___________Introduced by Sens. ZELDIN, MAZIARZ -- 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 a crime of lead- ing a retail theft enterprise 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 a new section 155.50 to read as follows: S 155.50 LEADING AN ORGANIZED RETAIL THEFT ENTERPRISE. 1. DEFINITIONS. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: (A) "ANTI-SHOPLIFTING OR INVENTORY CONTROL DEVICE COUNTERMEASURE" SHALL MEAN ANY ITEM OR DEVICE WHICH IS DESIGNED, MANUFACTURED, MODIFIED, OR ALTERED TO DEFEAT ANY ANTI-SHOPLIFTING OR INVENTORY CONTROL DEVICE; (B) "CONCEAL" SHALL MEAN TO HIDE, COVER, OR OTHERWISE DISGUISE MERCHANDISE SO THAT, ALTHOUGH THERE MAY BE SOME NOTICE OF ITS PRESENCE, IT IS NOT VISIBLE THROUGH ORDINARY OBSERVATION; (C) "FULL RETAIL VALUE" SHALL MEAN THE MERCHANT'S STATED OR ADVERTISED PRICE OF THE MERCHANDISE; (D) "MERCHANDISE" SHALL MEAN ANY GOODS, CHATTELS, FOODSTUFFS OR WARES OF ANY TYPE AND DESCRIPTION, REGARDLESS OF THE VALUE THEREOF; (E) "MERCHANT" SHALL MEAN ANY OWNER OR OPERATOR OF ANY STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT, OR ANY AGENT, EMPLOYEE, LESSEE, CONSIGNEE, OFFICER, DIRECTOR, FRANCHISEE, OR INDEPENDENT CONTRACTOR OF SUCH OWNER OR PROPRIETOR; (F) "ORGANIZED RETAIL THEFT" SHALL MEAN (1) THE STEALING, EMBEZZLE- MENT, OR OBTAINING BY FRAUD, FALSE PRETENSES, OR OTHER ILLEGAL MEANS, OF RETAIL MERCHANDISE IN QUANTITIES THAT WOULD NOT NORMALLY BE PURCHASED FOR PERSONAL USE OR CONSUMPTION FOR THE PURPOSE OF RESELLING OR OTHER- WISE REENTERING SUCH RETAIL MERCHANDISE IN COMMERCE, OR (2) THE RECRUIT- MENT OF PERSONS TO UNDERTAKE, OR THE COORDINATION, ORGANIZATION, OREXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06533-01-3 S. 2929 2
FACILITATION OF, SUCH STEALING, EMBEZZLEMENT, OR OBTAINING BY FRAUD, FALSE PRETENSES, OR OTHER ILLEGAL MEANS; (G) "ORGANIZED RETAIL THEFT ENTERPRISE" SHALL MEAN ANY ASSOCIATION OF TWO OR MORE PERSONS WHO ENGAGE IN THE CONDUCT OF OR ARE ASSOCIATED FOR THE PURPOSE OF EFFECTUATING ORGANIZED RETAIL THEFT OR ANY OTHER TRANSFER OR SALE OF SHOPLIFTED MERCHANDISE; (H) "PERSON" SHALL MEAN ANY INDIVIDUAL OR INDIVIDUALS, INCLUDING AN AGENT, OR EMPLOYEE OF A MERCHANT WHERE THE FACTS OF THE SITUATION SO REQUIRE; (I) "PREMISES OF A STORE OR RETAIL MERCANTILE ESTABLISHMENT" SHALL MEAN AND INCLUDE BUT BE NOT LIMITED TO THE RETAIL MERCANTILE ESTABLISH- MENT, ANY COMMON-USE AREAS IN SHOPPING CENTERS AND ALL PARKING AREAS SET ASIDE BY A MERCHANT OR ON BEHALF OF A MERCHANT FOR THE PARKING OF VEHI- CLES FOR THE CONVENIENCE OF THE PATRONS OF SUCH RETAIL MERCANTILE ESTAB- LISHMENT; (J) "SHOPLIFTING" SHALL MEAN TO (1) PURPOSELY TAKE POSSESSION OF, CARRY AWAY, TRANSFER OR CAUSE TO BE TRANSFERRED ANY MERCHANDISE DISPLAYED, HELD, STORED, OR OFFERED FOR SALE BY ANY STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT WITH THE INTENTION OF DEPRIVING THE MERCHANT OF THE POSSESSION, USE OR BENEFIT OF SUCH MERCHANDISE OR CONVERTING THE SAME TO THE USE OF SUCH PERSON WITHOUT PAYING TO THE MERCHANT THE VALUE THEREOF; (2) PURPOSELY TO CONCEAL UPON HIS OR HER PERSON OR OTHERWISE ANY MERCHANDISE OFFERED FOR SALE BY ANY STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT WITH THE INTENTION OF DEPRIVING THE MERCHANT OF THE PROCESSES, USE OR BENEFIT OF SUCH MERCHANDISE OR CONVERTING THE SAME TO THE USE OF SUCH PERSON WITHOUT PAYING TO THE MERCHANT THE FULL RETAIL VALUE THEREOF; (3) PURPOSELY AND WITH THE INTENT TO DEFRAUD, TO ALTER, TRANSFER OR REMOVE ANY LABEL, PRICE TAG OR MARKING INDICIA OF VALUE OR ANY OTHER MARKINGS WHICH AID IN DETERMINING VALUE AFFIXED TO ANY MERCHANDISE DISPLAYED, HELD, STORED OR OFFERED FOR SALE BY ANY STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT AND TO ATTEMPT TO PURCHASE SUCH MERCHANDISE PERSONALLY OR IN CONSORT WITH ANOTHER AT LESS THAN THE FULL RETAIL VALUE WITH THE INTENTION OF DEPRIV- ING THE MERCHANT OF ALL OR SOME PART OF THE VALUE THEREOF; (4) PURPOSELY TO TRANSFER ANY MERCHANDISE DISPLAYED, HELD, STORED OR OFFERED FOR SALE BY ANY STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT FROM THE CONTAINER IN OR ON WHICH THE SAME SHALL BE DISPLAYED TO ANY OTHER CONTAINER WITH INTENT TO DEPRIVE THE MERCHANT OF ALL OR SOME PART OF THE RETAIL VALUE THEREOF; OR (5) PURPOSELY TO UNDER-RING WITH THE INTENTION OF DEPRIVING THE MERCHANT OF THE FULL RETAIL VALUE THEREOF; (K) "STORE OR OTHER RETAIL MERCANTILE ESTABLISHMENT" SHALL MEAN A PLACE WHERE MERCHANDISE IS DISPLAYED, HELD, STORED, OR OFFERED TO THE PUBLIC FOR SALE; AND (L) "UNDER-RING" SHALL MEAN TO CAUSE THE CASH REGISTER OR OTHER SALE RECORDING DEVICE TO REFLECT LESS THAN THE FULL RETAIL VALUE OF THE MERCHANDISE. 2. A PERSON IS A LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE IF HE OR SHE CONSPIRES WITH OTHERS AS AN ORGANIZER, SUPERVISOR, FINANCIER OR MANAGER, TO ENGAGE FOR PROFIT IN ORGANIZED RETAIL CRIME OR IN A SCHEME OR COURSE OF CONDUCT TO EFFECTUATE THE TRANSFER OR SALE OF SHOPLIFTED MERCHANDISE. LEADING AN ORGANIZED RETAIL THEFT ENTERPRISE CONSTITUTES LARCENY IN THE SECOND DEGREE. NOTWITHSTANDING THE PROVISIONS OF SECTION 80.00 OF THIS CHAPTER, THE COURT MAY IMPOSE A FINE NOT TO EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS OR FIVE TIMES THE RETAIL VALUE OF THE MERCHANDISE SEIZED AT THE TIME OF THE ARREST, WHICHEVER IS GREATER.S. 2929 3
3. NOTWITHSTANDING THE PROVISIONS OF SECTION 70.35 OF THIS CHAPTER, A CONVICTION OF LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE SHALL NOT MERGE WITH THE CONVICTION FOR ANY OFFENSE WHICH IS THE OBJECT OF THE CONSPIRACY. NOTHING CONTAINED IN THIS SECTION SHALL PROHIBIT THE COURT FROM IMPOSING AN EXTENDED TERM PURSUANT TO ARTICLE SEVENTY OF THIS CHAP- TER; NOR SHALL THIS SECTION BE CONSTRUED IN ANY WAY TO PRECLUDE OR LIMIT THE PROSECUTION OR CONVICTION OF ANY PERSON FOR CONSPIRACY UNDER ARTICLE ONE HUNDRED FIVE OF THIS CHAPTER, OR ANY PROSECUTION OR CONVICTION FOR ANY OTHER OFFENSE. 4. IT SHALL NOT BE NECESSARY IN ANY PROSECUTION UNDER THIS SECTION FOR THE STATE TO PROVE THAT ANY INTENDED PROFIT WAS ACTUALLY REALIZED. THE TRIER OF FACT MAY INFER THAT A PARTICULAR SCHEME OR COURSE OF CONDUCT WAS UNDERTAKEN FOR PROFIT FROM ALL OF THE ATTENDING CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO THE NUMBER OF PERSONS INVOLVED IN THE SCHEME OR COURSE OF CONDUCT, THE ACTOR'S NET WORTH AND HIS OR HER EXPENDITURES IN RELATION TO HIS OR HER LEGITIMATE SOURCES OF INCOME, THE AMOUNT OF MERCHANDISE INVOLVED, OR THE AMOUNT OF CASH OR CURRENCY INVOLVED. 5. IT SHALL NOT BE A DEFENSE TO A PROSECUTION UNDER THIS SECTION THAT ANY SHOPLIFTED MERCHANDISE WAS BROUGHT INTO OR TRANSPORTED IN THIS STATE SOLELY FOR ULTIMATE DISTRIBUTION IN ANOTHER JURISDICTION; NOR SHALL IT BE A DEFENSE THAT ANY PROFIT WAS INTENDED TO BE MADE IN ANOTHER JURIS- DICTION. S 2. Section 155.40 of the penal law, as amended by chapter 515 of the laws of 1986, is amended to read as follows: S 155.40 Grand larceny in the second degree. A person is guilty of grand larceny in the second degree when he steals property and when: 1.
[The]THE value of the property exceeds fifty thousand dollars; [or]2. [The]THE property, 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 refusing to perform an official duty, in such manner as to affect some person adversely; OR 3. THE PERSON IS A LEADER OF AN ORGANIZED RETAIL THEFT ENTERPRISE AS PROVIDED IN SECTION 155.50 OF THIS ARTICLE. Grand larceny in the second degree is a class C felony. S 3. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.