Amends the definition of "criminal enterprise", for the purpose of criminal liability for enterprise corruption.
Ayes (59): 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, Rivera, Robach, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Excused (4): Adams, Ranzenhofer, Ritchie, Sampson
TITLE OF BILL: An act to amend the penal law, in relation to definitions of criminal enterprise and pattern of criminal activity
SUMMARY OF PROVISIONS:
This legislation amends subdivision 3 of § 460.10 of the Penal Law to broaden the definition of "criminal enterprise". It further amends paragraph (b) of subdivision 4 of § 460.10 of the Penal Law to broaden the definition of "pattern of criminal activity".
Case law has inappropriately narrowed New York's enterprise corruption statute, also known by its federal counterpart, the Racketeering Influenced and Corrupt Organizations Act or the RICO law. The District Attorneys Association has indicated that the amendments in this bill are still needed. It is believed that omitting the phrase -distinct from a pattern" will clear up the longstanding confusion about its meaning, and would enable a jury to infer a structure from proof of the pattern advanced at trial. In addition, it is believed that omitting the "distinct" language will remove an unnecessary hurdle to prosecution.
In People v. Nappo *(Slip Op., J. Vaughn, 1/14/98), a Suffolk County Court case, 13 men were charged with a bootlegging scheme which brought at least 30 million gallons of untaxed gasoline from New Jersey into New York over an 18-month period between 1994 and 1996. The defendants made hundreds of deliveries, sometimes as many as 20 a day. New York lost approximately 18 cents in tax revenue for each illegally imported gallon ($5.4 million).
The court in Nappo ruled that although there was a criminal structure involved in bringing illegal gasoline into the state, "in the absence of their continuing criminal activities to allegedly import for resale untaxed fuel, there is no structure, business, activity or continuity of criminal purpose beyond the scope of the criminal incidents alleged in this indictment".
The court further ruled that because each pattern act is so closely related to the single purpose of importing motor fuel illegally into this state without paying appropriate taxes, they must be considered part of the same criminal venture and therefore the pattern of criminal activity as contemplated by the statute has not been shown to exist". As a result, Judge Vaughn ordered the enterprise corruption, conspiracy and larceny counts dismissed.
* People v. Napco (2d Dept. 1999) 261 A.0.2d 558, 690 N.Y.S.2d 649,
leave to appeal granted 93 N.Y.2d 1023, H.Y.S. 2d 582, 719 N.E.2d 943, leave to appeal granted 93 N.Y.2d 1026,697 N.Y.S.2d 595, 719 N.E.2d 946, reversed in part 94 N.Y.2d 564, 709 N.Y.S.2d 41, 729 N.E.2d 698.
PRIOR LEGISLATIVE HISTORY:
1999 Passed Senate/Assembly Codes Committee 2000 passed Senate/Assembly Codes Committee 2001 Passed Senate/Assembly Codes Committee 2002 Passed senate/Assembly Codes Committee 2003-04 Passed Senate 2005-06 Passed Senate 2007-07 Passed Senate 2009-10 Senate Codes Committee 2011-12 Senate Codes Committee
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 ________________________________________________________________________ 5383 2013-2014 Regular Sessions IN SENATE May 16, 2013 ___________Introduced by Sen. FLANAGAN -- 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 definitions of criminal enterprise and pattern of criminal activity THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 3 and paragraph (b) of subdivision 4 of section 460.10 of the penal law, as added by chapter 516 of the laws of 1986, are amended to read as follows: 3. "Criminal enterprise" means a group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure
[distinct from a pattern]of criminal activity, and with a continuity of existence [, structure]and criminal purpose beyond the scope of individual criminal incidents. (b) are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to consti- tute a SINGLE criminal offense [or criminal transaction,]as [those terms are]defined in section 40.10 of the criminal procedure law; and 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.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11101-01-3