Includes the financial exploitation of the elderly or disabled within the definition of the crime of larceny; defines terms.
Ayes (63): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, 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
TITLE OF BILL: An act to amend the penal law, in relation to financial exploitation of the elderly and disabled
PURPOSE: This bill will allow prosecutions for financial abuse of senior citizens by amending the Penal Law to add a new crime of financial exploitation of the elderly or disabled.
SUMMARY OF SPECIFIC PROVISIONS: This bill amends section 155.00 of the New York State Penal Law by adding a new paragraph regarding "Financial Exploitation of the Elderly and Disabled."
Elderly means any person who is 60 years of age or older who is also suffering from a disease or infirmity associated with advanced age. Disabled means any person who suffers from permanent physical or mental impairment as a result of a disease, injury, functional disorder or congenital condition to the extent that that person is incapable of preventing or avoiding the commission of a larceny against himself or herself.
A person in a position of trust is defined as any person who is the parent, spouse, adult child or other relative by blood or affinity; or a joint tenant or tenant in common or someone who has a fiduciary obligation to the elderly or disabled person.
Intimidation is the communication that that he or she will be deprived of food, nutrition, shelter, medication, medical care or medical treatment.
Section 155.05 of the Penal Law is amended to make it a crime for a person in a position of trust to compel or induce the elderly or disabled person to deliver property by means of fraud, false promises, extortion or intimidation.
JUSTIFICATION: Presently, there are no provisions in the Penal Law that specifically address this growing problem. This has lead to instances where prosecutors have not been able to bring sufficient charges against persons who have exploited vulnerable senior citizens and disabled persons. Today, approximately 45 states have criminal statutes to address financial abuse of elderly and disabled persons. Prosecutors in New York have not only seen an increasing amount of elder financial abuse cases, but have also found that they cannot adequately prosecute this new type of criminal because present Larceny statutes do not specifically define this type of theft. This has led to instances where prosecutors either have been prevented from prosecuting these criminals or have had to resort to cumbersome legal theories of prosecution that could be successfully appealed by a convicted person.
As New York's senior population has increased, there has been a marked increase in reported incidents of financial elder abuse. In most instances, financial elder abuse involves the theft of money from a senior's checking account, Certificate of Deposit and other bank accounts. Usually the perpetrator is a family member, a close "friend" or a caretaker who has frequent contact with the senior and has gained the senior's trust. This new section of the Penal Code addresses this new crime and gives prosecutors the authority they need to successfully prosecute these criminals. Specifically, it recognizes that senior citizens and disabled persons are a special type of victim and creates new criteria for elder financial abuse.
PRIOR LEGISLATIVE HISTORY: 2002 - A.3174 Referred to Assembly Codes Committee 2006 - A.1798 Referred to Assembly Codes Committee 2007 - A.305 Referred to Assembly Codes 2008 - A.305 Referred to Assembly Codes 2009 - S.8105 Referred to Codes/A.4163 Referred to Codes 2011 - S.4725 Passed Senate/A.2374 Referred to Codes
FISCAL IMPLICATIONS: None to the state.
EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it becomes law.
STATE OF NEW YORK ________________________________________________________________________ 373 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. KENNEDY -- 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 financial exploitation of the elderly and disabled 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 four new subdivisions 10, 11, 12 and 13 to read as follows: 10. "ELDERLY" MEANS ANY PERSON WHO IS SIXTY YEARS OF AGE OR OLDER AND IS SUFFERING FROM A DISEASE OR INFIRMITY ASSOCIATED WITH ADVANCED AGE, WHICH IS MANIFESTED BY PHYSICAL, MENTAL OR EMOTIONAL DYSFUNCTIONING TO THE EXTENT THAT SUCH PERSON IS INCAPABLE OF AVOIDING OR PREVENTING THE COMMISSION OF A LARCENY AGAINST HIMSELF OR HERSELF. 11. "DISABLED" MEANS ANY PERSON WHO SUFFERS FROM A PERMANENT PHYSICAL OR MENTAL IMPAIRMENT, AS A RESULT OF A DISEASE, INJURY, FUNCTIONAL DISORDER OR CONGENITAL CONDITION, TO THE EXTENT THAT SUCH PERSON IS INCAPABLE OF AVOIDING OR PREVENTING THE COMMISSION OF A LARCENY AGAINST HIMSELF OR HERSELF. 12. "PERSON IN A POSITION OF TRUST" MEANS A PERSON WHO: (A) IS THE PARENT, SPOUSE, ADULT CHILD OR OTHER RELATIVE BY BLOOD OR AFFINITY OF AN ELDERLY OR DISABLED PERSON; OR (B) IS A JOINT TENANT OR TENANT IN COMMON WITH AN ELDERLY OR DISABLED PERSON; OR (C) HAS A FIDUCIARY OBLIGATION TO AN ELDERLY OR DISABLED PERSON; OR (D) RECEIVES MONETARY OR OTHER VALUABLE CONSIDERATION FOR PROVIDING CARE FOR THE ELDERLY OR DISABLED PERSON; OR (E) LIVES WITH OR PROVIDES SOME COMPONENT OF HOME CARE SERVICES ON A CONTINUING BASIS TO THE ELDERLY OR DISABLED PERSON INCLUDING, BUT NOT LIMITED TO, A NEIGHBOR OR FRIEND WHO DOES NOT PROVIDE SUCH SERVICES BUT HAS ACCESS TO THE ELDERLY OR DISABLED PERSON BASED ON SUCH RELATIONSHIP.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02425-01-3 S. 373 2
13. "INTIMIDATION" MEANS THE COMMUNICATION TO AN ELDERLY OR DISABLED PERSON THAT HE OR SHE WILL BE DEPRIVED OF FOOD, NUTRITION, SHELTER, MEDICATION, MEDICAL CARE OR MEDICAL TREATMENT. S 2. Subdivision 2 of section 155.05 of the penal law is amended by adding a new paragraph (f) to read as follows: (F) BY FINANCIAL EXPLOITATION OF THE ELDERLY OR DISABLED. (I) A PERSON OBTAINS PROPERTY BY FINANCIAL EXPLOITATION OF THE ELDERLY OR DISABLED, WHEN BEING A PERSON IN A POSITION OF TRUST, HE OR SHE COMPELS OR INDUCES AN ELDERLY OR DISABLED PERSON TO DELIVER SUCH PROPER- TY TO HIMSELF OR HERSELF OR TO A THIRD PERSON BY MEANS OF FRAUD, FALSE PROMISE, EXTORTION OR INTIMIDATION. (II) NO PROVISION OF THIS PARAGRAPH SHALL BE DEEMED TO IMPOSE CRIMINAL LIABILITY UPON ANY PERSON WHO IN GOOD FAITH SEEKS TO ASSIST AN ELDERLY OR DISABLED PERSON IN THE MANAGEMENT OF HIS OR HER PROPERTY, BUT THROUGH NO FAULT OF SUCH PERSON IS UNABLE TO ASSIST THE ELDERLY OR DISABLED PERSON. (III) IT SHALL BE NO DEFENSE TO ANY PROSECUTION FOR LARCENY BY MEANS OF FINANCIAL EXPLOITATION OF THE ELDERLY OR DISABLED THAT THE DEFENDANT DID NOT KNOW THE FACTS AND CONDITIONS RESPONSIBLE FOR MAKING THE VICTIM AN ELDERLY OR DISABLED PERSON. 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.