Relates to the definition of mentally disabled and the crime of larceny.
Ayes (57): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Farley, Felder, Flanagan, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hoylman, 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, Squadron, Stavisky, Stewart-Cousins, Tkaczyk, Valesky, Young, Zeldin
Excused (4): Espaillat, Hassell-Thomps, Kennedy, Smith
TITLE OF BILL: An act to amend the penal law, in relation to the definition of mentally disabled and in relation to larceny
PURPOSE: To amend the Penal Law to state that, "it is no defense to a prosecution for larceny that the defendant obtained consent to take, withhold, or obtain property, where such consent was obtained from a person who the defendant knew or had reason to know was mentally disabled" and to define "mentally disabled."
SUMMARY OF PROVISIONS:
Section 1 amends § 155.00 of the Penal Law, by adding a new subdivision 10 to specify the term "mentally disabled" means that a person suffers from a mental disease, defect or condition which renders him or her incapable of appraising the nature of the conduct constituting the taking, obtaining or withholding of his or her property.
Section 2 amends § 155.10 of the Penal Law to state that, "it is no defense to a prosecution for larceny that the defendant obtained consent to take, withhold, or obtain property, where such consent was obtained from a person who the defendant knew or had reason to know was mentally disabled."
Section 3 states that this act shall take effect immediately
JUSTIFICATION: New York's Penal Law was recently amended to target physical assaults committed against elderly victims. In contrast with most other states in the country, however, New York has not addressed the financial exploitation of impaired adults. The sad fact is that older adults who suffer from age-related cognitive disorders may be unable to understand basic arithmetic, let alone their finances. They may not remember signing checks, wills, or deeds, or giving permission or authority to transfer ownership of their bank accounts or real estate.
For those reasons, an elderly victim's mental infirmity can complicate a larceny prosecution. The Penal Law requires proof that the defendant wrongfully took, obtained, or withheld property from an owner; in other words, that the property was taken without consent. A mentally disabled victim, however, cannot give meaningful consent. More importantly, such a victim cannot testify (nor, for that matter, execute a sworn certification) that his or her property was taken without consent. To prove this element, the prosecution often relies on evidence that at the time of the taking, the victim lacked the mental capacity to consent. That is precisely what occurred in People v. Caminola. In that case, the defendant stole from his victim, a senile elderly woman, over a two-year period. At trial, the defendant testified that the funds he took were gifts from the victim, who had by then passed away. The trial court permitted the prosecution to introduce evidence of the victim's mental condition at the time of the transfer, deeming it relevant to whether she had the capacity to consent.
The First Department affirmed the conviction, explaining: "The jury was not instructed that the victim's capacity or incapacity was an element of the offense, but only that they could evaluate her capacity under the circumstances of this case in determining whether a trespass had occurred or whether, as defendant contended, he had acted with her knowledge and consent. Although we note the paucity of case law in this State equating a trespass for purposes of larceny with an ostensibly donative victim's inability to consent to the taking, nevertheless, these factors are properly considered in the context of a traditional understanding of the larceny statute."
The limited case law has seeded confusion in larceny cases with mentally disabled victims. This legislation will codify the holding of Caminola to make it applicable statewide.
LEGISLATIVE HISTORY: New bill.
FISCAL IMPLICATIONS: None
EFFECTIVE DATE: This act shall take effect immediately
STATE OF NEW YORK ________________________________________________________________________ 7177 IN SENATE May 2, 2014 ___________Introduced by Sen. GALLIVAN -- 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 the definition of mentally disabled and in relation to larceny 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 a new subdivision 10 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 THE NATURE OF THE CONDUCT CONSTITUTING THE TAKING, OBTAINING OR WITHHOLDING OF HIS OR HER PROPERTY. S 2. Section 155.10 of the penal law is amended to read as follows: S 155.10 Larceny; no defense. 1. The crimes of (a) larceny committed by means of extortion and an attempt to commit the same, and (b) bribe receiving by a labor official as defined in section 180.20, and bribe receiving as defined in section 200.05, are not mutually exclusive, and it is no defense to a prose- cution for larceny committed by means of extortion or for an attempt to commit the same that, by reason of the same conduct, the defendant also committed one of such specified crimes of bribe receiving. 2. IT IS NO DEFENSE TO A PROSECUTION FOR LARCENY THAT THE DEFENDANT OBTAINED CONSENT TO TAKE, WITHHOLD, OR OBTAIN PROPERTY, WHERE SUCH CONSENT WAS OBTAINED FROM A PERSON WHOM THE DEFENDANT KNEW OR HAD REASON TO KNOW WAS MENTALLY DISABLED. S 3. This act shall take effect immediately.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13768-02-4