S T A T E O F N E W Y O R K
________________________________________________________________________
1873
2017-2018 Regular Sessions
I N S E N A T E
January 11, 2017
___________
Introduced by Sen. AVELLA -- 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 making technical
corrections to the descriptions of certain bribery offenses and
defenses; to amend the penal law, in relation to commercial bribing;
to amend the penal law and the criminal procedure law, in relation to
the crime of official misconduct and to abuse of public trust crimes;
and to amend the penal law, in relation to undisclosed self-dealing
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 200.00 of the penal law, as amended by chapter 833
of the laws of 1986, is amended to read as follows:
§ 200.00 Bribery in the third degree.
A person is guilty of bribery in the third degree when he OR SHE
confers, or offers or agrees to confer, any benefit upon a public serv-
ant [upon an agreement or understanding that] WITH THE INTENT TO INFLU-
ENCE such public servant's vote, opinion, judgment, action, decision or
exercise of discretion as a public servant [will thereby be influenced].
Bribery in the third degree is a class D felony.
§ 2. Section 200.03 of the penal law, as amended by section 18 of
subpart A of part H of chapter 55 of the laws of 2014, is amended to
read as follows:
§ 200.03 Bribery in the second degree.
A person is guilty of bribery in the second degree when he OR SHE
confers, or offers or agrees to confer, any benefit valued in excess of
five thousand dollars upon a public servant [upon an agreement or under-
standing that] WITH THE INTENT TO INFLUENCE such public servant's vote,
opinion, judgment, action, decision or exercise of discretion as a
public servant [will thereby be influenced].
Bribery in the second degree is a class C felony.
§ 3. Section 200.04 of the penal law, as amended by section 19 of
subpart A of part H of chapter 55 of the laws of 2014, is amended to
read as follows:
§ 200.04 Bribery in the first degree.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01209-01-7
S. 1873 2
A person is guilty of bribery in the first degree when the person
confers, or offers or agrees to confer: (1) any benefit upon a public
servant [upon an agreement or understanding that] WITH THE INTENT TO
INFLUENCE such public servant's vote, opinion, judgment, action, deci-
sion or exercise of discretion as a public servant [will thereby be
influenced] in the investigation, arrest, detention, prosecution or
incarceration of any person for the commission or alleged commission of
a class A felony defined in article two hundred twenty of this part or
an attempt to commit any such class A felony; or (2) any benefit valued
in excess of one hundred thousand dollars upon a public servant [upon an
agreement or understanding that] WITH THE INTENT TO INFLUENCE such
public servant's vote, opinion, judgment, action, decision or exercise
of discretion as a public servant [will thereby be influenced].
Bribery in the first degree is a class B felony.
§ 4. Section 200.05 of the penal law is amended to read as follows:
§ 200.05 Bribery; defense.
In any prosecution for bribery[,]: (1) it is a defense that the
defendant conferred or agreed to confer the benefit involved upon the
public servant involved as a result of conduct of the latter constitut-
ing larceny committed by means of extortion, or an attempt to commit the
same, or coercion, or an attempt to commit coercion[.]; AND (2) IT IS
ALSO A DEFENSE THAT THE BENEFIT THAT THE DEFENDANT CONFERRED, OR OFFERED
OR AGREED TO CONFER, UPON THE PUBLIC SERVANT WAS A LEGITIMATE CAMPAIGN
CONTRIBUTION, UNLESS SUCH CONTRIBUTION WAS MADE UPON AN AGREEMENT OR
UNDERSTANDING THAT SUCH PUBLIC SERVANT'S VOTE, OPINION, JUDGMENT,
ACTION, DECISION OR EXERCISE OF DISCRETION AS A PUBLIC SERVANT WOULD
THEREBY BE INFLUENCED.
§ 5. Section 180.03 of the penal law, as amended by chapter 577 of the
laws of 1983, is amended to read as follows:
§ 180.03 Commercial bribing in the first degree.
A person is guilty of commercial bribing in the first degree when he
OR SHE confers, or offers or agrees to confer, any benefit upon any
employee, agent or fiduciary without the consent of the latter's employ-
er or principal, with intent to influence his OR HER conduct in relation
to his OR HER employer's or principal's affairs, and when the value of
the benefit conferred or offered or agreed to be conferred exceeds one
thousand dollars [and causes economic harm to the employer or principal
in an amount exceeding two hundred fifty dollars].
Commercial bribing in the first degree is a class E felony.
§ 6. Section 180.08 of the penal law, as amended by chapter 577 of the
laws of 1983, is amended to read as follows:
§ 180.08 Commercial bribe receiving in the first degree.
An employee, agent or fiduciary is guilty of commercial bribe receiv-
ing in the first degree when, without the consent of his OR HER employer
or principal, he OR SHE solicits, accepts or agrees to accept any bene-
fit from another person upon an agreement or understanding that such
benefit will influence his OR HER conduct in relation to his OR HER
employer's or principal's affairs, and when the value of the benefit
solicited, accepted or agreed to be accepted exceeds one thousand
dollars [and causes economic harm to the employer or principal in an
amount exceeding two hundred fifty dollars].
Commercial bribe receiving in the first degree is a class E felony.
§ 7. Section 195.00 of the penal law, as amended by chapter 906 of the
laws of 1990, is amended to read as follows:
§ 195.00 Official misconduct IN THE THIRD DEGREE.
S. 1873 3
A public servant is guilty of official misconduct IN THE THIRD DEGREE
when, with intent to obtain a benefit or deprive another person of a
benefit:
1. He OR SHE commits an act relating to his OR HER office but consti-
tuting an unauthorized exercise of his OR HER official functions, know-
ing that such act is unauthorized; or
2. He OR SHE knowingly refrains from performing a duty which is
imposed upon him OR HER by law or is clearly inherent in the nature of
his OR HER office.
Official misconduct IN THE THIRD DEGREE is a class A misdemeanor.
§ 8. The penal law is amended by adding two new sections 195.01 and
195.03 to read as follows:
§ 195.01 OFFICIAL MISCONDUCT IN THE SECOND DEGREE.
A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE SECOND DEGREE
WHEN HE OR SHE COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF ONE THOUSAND DOLLARS.
OFFICIAL MISCONDUCT IN THE SECOND DEGREE IS A CLASS E FELONY.
§ 195.03 OFFICIAL MISCONDUCT IN THE FIRST DEGREE.
A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE FIRST DEGREE
WHEN HE OR SHE COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
BENEFIT VALUED IN EXCESS OF THREE THOUSAND DOLLARS.
OFFICIAL MISCONDUCT IN THE FIRST DEGREE IS A CLASS D FELONY.
§ 9. The penal law is amended by adding a new article 196 to read as
follows:
ARTICLE 196
ABUSE OF PUBLIC TRUST
SECTION 196.00 ABUSE OF PUBLIC TRUST CRIME.
§ 196.00 ABUSE OF PUBLIC TRUST CRIME.
1. (A) A PERSON COMMITS AN ABUSE OF PUBLIC TRUST CRIME WHEN HE OR SHE
COMMITS A FELONY OFFENSE AND EITHER:
(I) INTENTIONALLY USES HIS OR HER POSITION AS A PUBLIC SERVANT IN A
MANNER THAT SIGNIFICANTLY FACILITATES THE COMMISSION OR CONCEALMENT OF
THE OFFENSE; OR
(II) ATTEMPTS, CONSPIRES OR SOLICITS ANOTHER TO COMMIT ANY FELONY, AND
IN SUCH ATTEMPT, CONSPIRACY OR SOLICITATION INTENTIONALLY USES HIS OR
HER POSITION AS A PUBLIC SERVANT TO SIGNIFICANTLY FACILITATE THE COMMIS-
SION OR CONCEALMENT OF THE OFFENSE.
(B) NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION, AN ABUSE OF
PUBLIC TRUST CRIME SHALL NOT INCLUDE ANY OFFENSE FOR WHICH THE
OFFENDER'S STATUS AS A PUBLIC SERVANT CONSTITUTES AN ELEMENT OF THE
OFFENSE, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING PROVISIONS OF THIS
CHAPTER: PARAGRAPH (G) OF SUBDIVISION FOUR OF SECTION 135.35 (LABOR
TRAFFICKING); SUBDIVISION EIGHT OF SECTION 135.60 (COERCION IN THE
SECOND DEGREE); PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION 135.65
(COERCION IN THE FIRST DEGREE); PARAGRAPH (C) OF SUBDIVISION TWO OF
SECTION 155.40 (GRAND LARCENY IN THE SECOND DEGREE); SECTION 175.40
(ISSUING A FALSE CERTIFICATE); SECTION 195.00 (OFFICIAL MISCONDUCT IN
THE THIRD DEGREE); SECTION 195.01 (OFFICIAL MISCONDUCT IN THE SECOND
DEGREE); SECTION 195.03 (OFFICIAL MISCONDUCT IN THE FIRST DEGREE);
SECTION 200.10 (BRIBE RECEIVING IN THE THIRD DEGREE); SECTION 200.11
(BRIBE RECEIVING IN THE SECOND DEGREE); SECTION 200.12 (BRIBE RECEIVING
IN THE FIRST DEGREE); SECTION 200.25 (RECEIVING REWARD FOR OFFICIAL
MISCONDUCT IN THE SECOND DEGREE); SECTION 200.27 (RECEIVING REWARD FOR
OFFICIAL MISCONDUCT IN THE FIRST DEGREE); SECTION 200.35 (RECEIVING
S. 1873 4
UNLAWFUL GRATUITIES); SECTION 200.50 (BRIBE RECEIVING FOR PUBLIC
OFFICE); PARAGRAPH (G) OF SUBDIVISION FIVE OF SECTION 230.34 (SEX TRAF-
FICKING); OR ANY ATTEMPT OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING
OFFENSES.
2. WHEN A PERSON IS CONVICTED OF AN ABUSE OF PUBLIC TRUST CRIME PURSU-
ANT TO SUBDIVISION ONE OF THIS SECTION AND THE SPECIFIED OFFENSE IS A
CLASS C, D OR E FELONY, THE CRIME SHALL BE DEEMED TO BE ONE CATEGORY
HIGHER THAN THE SPECIFIED OFFENSE THE DEFENDANT COMMITTED, OR ONE CATE-
GORY HIGHER THAN THE OFFENSE LEVEL APPLICABLE TO THE DEFENDANT'S
CONVICTION FOR AN ATTEMPT OR CONSPIRACY TO COMMIT A SPECIFIED OFFENSE,
WHICHEVER IS APPLICABLE.
3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS B FELONY:
(A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
SIX YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.00 OF
THIS CHAPTER;
(B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
(C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
(D) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.05 OF
THIS CHAPTER; AND
(E) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
DETERMINATE SENTENCE MUST BE AT LEAST TEN YEARS IF THE DEFENDANT IS
SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
SPECIFIED OFFENSE IS A CLASS A-I FELONY, THE MINIMUM PERIOD OF THE INDE-
TERMINATE SENTENCE SHALL BE NOT LESS THAN TWENTY YEARS.
§ 10. Subdivision 4 of section 200.50 of the criminal procedure law,
as amended by section 15 of subpart A of part H of chapter 55 of the
laws of 2014, is amended to read as follows:
4. A statement in each count that the grand jury, or, where the accu-
satory instrument is a superior court information, the district attor-
ney, accuses the defendant or defendants of a designated offense,
provided that in any prosecution under article four hundred eighty-five
of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section 485.05 of the penal law,
followed by the phrase "as a hate crime", and provided further that in
any prosecution under section 490.25 of the penal law, the designated
offense shall be the specified offense, as defined in subdivision three
of section 490.05 of the penal law, followed by the phrase "as a crime
of terrorism"; and provided further that in any prosecution under
section 130.91 of the penal law, the designated offense shall be the
specified offense, as defined in subdivision two of section 130.91 of
the penal law, followed by the phrase "as a sexually motivated felony";
and provided further that in any prosecution under section 496.06 of the
penal law, the designated offense shall be the specified offense, as
defined in subdivision two of such section, followed by the phrase "as a
public corruption crime"; AND PROVIDED FURTHER THAT IN ANY PROSECUTION
UNDER ARTICLE ONE HUNDRED NINETY-SIX OF THE PENAL LAW, THE DESIGNATED
OFFENSE SHALL BE THE DESIGNATED FELONY OFFENSE, AS DEFINED IN SUBDIVI-
SION TWO OF SECTION 196.00 OF THE PENAL LAW, FOLLOWED BY THE PHRASE "AS
AN ABUSE OF PUBLIC TRUST CRIME"; and
S. 1873 5
§ 11. Subdivision 7 of section 200.50 of the criminal procedure law is
amended by adding a new paragraph (f) to read as follows:
(F) IN THE CASE OF AN ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN
SECTION 196.00 OF THE PENAL LAW, SPECIFIES, AS APPLICABLE, THAT THE
DEFENDANT OR DEFENDANTS COMMITTED, OR ATTEMPTED, CONSPIRED OR SOLICITED
ANOTHER TO COMMIT, A FELONY AND INTENTIONALLY USED HIS OR HER POSITION
AS A PUBLIC SERVANT IN A MANNER THAT SIGNIFICANTLY FACILITATED THE
COMMISSION OR CONCEALMENT OF THE OFFENSE; AND
§ 12. The penal law is amended by adding two new sections 195.30 and
195.35 to read as follows:
§ 195.30 UNDISCLOSED SELF-DEALING IN THE SECOND DEGREE.
A PERSON IS GUILTY OF UNDISCLOSED SELF-DEALING IN THE SECOND DEGREE
WHEN, BEING A PUBLIC SERVANT, HE OR SHE INTENTIONALLY ENGAGES IN CONDUCT
OR A COURSE OF CONDUCT IN HIS OR HER OFFICIAL CAPACITY IN CONNECTION
WITH THE AWARD OF A PUBLIC CONTRACT OR PUBLIC GRANT OR OTHER EFFORT TO
OBTAIN OR RETAIN PUBLIC BUSINESS OR PUBLIC FUNDS THAT IS INTENDED TO
CONFER AN UNDISCLOSED BENEFIT ON HIMSELF, HERSELF, A SPOUSE, DOMESTIC
PARTNER, CHILD, PARENT, OR SIBLING OF THE PUBLIC SERVANT, A PERSON WITH
WHOM A PUBLIC SERVANT HAS A BUSINESS OR OTHER FINANCIAL RELATIONSHIP, OR
A FIRM IN WHICH THE PUBLIC SERVANT HAS A PRESENT OR POTENTIAL INTEREST
AND THEREBY OBTAINS OR ATTEMPTS TO OBTAIN A BENEFIT FOR HIMSELF,
HERSELF, A SPOUSE, DOMESTIC PARTNER, CHILD, PARENT, OR SIBLING OF THE
PUBLIC SERVANT, A PERSON WITH WHOM A PUBLIC SERVANT HAS A BUSINESS OR
OTHER FINANCIAL RELATIONSHIP, OR A FIRM IN WHICH THE PUBLIC SERVANT HAS
A PRESENT OR POTENTIAL INTEREST WITH A VALUE IN EXCESS OF THREE THOUSAND
DOLLARS. A BENEFIT IS DISCLOSED IF ITS EXISTENCE IS MADE KNOWN PRIOR TO
THE ALLEGED WRONGFUL CONDUCT TO EITHER (I) THE RELEVANT STATE OR LOCAL
ETHICS COMMISSION OR (II) THE OFFICIAL RESPONSIBLE FOR THE PUBLIC SERV-
ANT'S APPOINTMENT TO HIS OR HER POSITION, PROVIDED THAT PERSON IS NOT A
PARTICIPANT IN THE ALLEGED WRONGFUL CONDUCT.
UNDISCLOSED SELF-DEALING IN THE SECOND DEGREE IS A CLASS D FELONY.
§ 195.35 UNDISCLOSED SELF-DEALING IN THE FIRST DEGREE.
A PERSON IS GUILTY OF UNDISCLOSED SELF-DEALING IN THE FIRST DEGREE
WHEN, BEING A PUBLIC SERVANT, HE OR SHE INTENTIONALLY ENGAGES IN CONDUCT
OR A COURSE OF CONDUCT IN HIS OR HER OFFICIAL CAPACITY IN CONNECTION
WITH THE AWARD OF A PUBLIC CONTRACT OR PUBLIC GRANT OR OTHER EFFORT TO
OBTAIN OR RETAIN PUBLIC BUSINESS OR PUBLIC FUNDS THAT IS INTENDED TO
CONFER AN UNDISCLOSED BENEFIT ON HIMSELF, HERSELF, A SPOUSE, DOMESTIC
PARTNER, CHILD, PARENT, OR SIBLING OF THE PUBLIC SERVANT, A PERSON WITH
WHOM A PUBLIC SERVANT HAS A BUSINESS OR OTHER FINANCIAL RELATIONSHIP, OR
A FIRM IN WHICH THE PUBLIC SERVANT HAS A PRESENT OR POTENTIAL INTEREST
AND THEREBY OBTAINS OR ATTEMPTS TO OBTAIN A BENEFIT FOR HIMSELF,
HERSELF, A SPOUSE, DOMESTIC PARTNER, CHILD, PARENT, OR SIBLING OF THE
PUBLIC SERVANT, A PERSON WITH WHOM A PUBLIC SERVANT HAS A BUSINESS OR
OTHER FINANCIAL RELATIONSHIP, OR A FIRM IN WHICH THE PUBLIC SERVANT HAS
A PRESENT OR POTENTIAL INTEREST WITH A VALUE IN EXCESS OF TEN THOUSAND
DOLLARS. A BENEFIT IS DISCLOSED IF ITS EXISTENCE IS MADE KNOWN PRIOR TO
THE ALLEGED WRONGFUL CONDUCT TO EITHER (I) THE RELEVANT STATE OR LOCAL
ETHICS COMMISSION OR (II) THE OFFICIAL RESPONSIBLE FOR THE PUBLIC SERV-
ANT'S APPOINTMENT TO HIS OR HER POSITION, PROVIDED THAT PERSON IS NOT A
PARTICIPANT IN THE ALLEGED WRONGFUL CONDUCT.
UNDISCLOSED SELF-DEALING IN THE FIRST DEGREE IS A CLASS C FELONY.
§ 13. This act shall take effect on the first of November next
succeeding the date on which it shall have become a law.