A09566 Summary:

BILL NOA09566
 
SAME ASNo Same As
 
SPONSORKaminsky
 
COSPNSR
 
MLTSPNSR
 
Amd 200.03, 200.04, 200.00, 80.00 & 195.00, add 195.03, 195.04, Art 196 196.00, Pen L; amd 200.50, CP L
 
Relates to the crimes of bribery and abuse of public trust.
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A09566 Actions:

BILL NOA09566
 
03/17/2016referred to codes
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A09566 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9566
 
SPONSOR: Kaminsky
  TITLE OF BILL: An act to amend the penal law and the criminal proce- dure law, in relation to bribery and abuse of public trust   PURPOSE: To strengthen the penalties for public officials who participate in acts of bribery, attempted bribery and other crimes that are committed through their position as a public official.   SUMMARY OF PROVISIONS: Sections 200.00 200.03, 200.04 of the penal law are amended to add "intent to influence" language and to lower the threshold amount of bribes, thereby increasing penalties. Sections 1, 2 and 3 of the bill re-order the incremental level of felony charges imposed, as they relate to the threshold amount of the accepted bribe, as follows: *1st degree bribery is lowered from $100,000 or more to $3,000 or more *2nd degree bribery is lowered from $5,000 or more to $1,000 or more *3rd degree bribery currently refers to "any benefit" and is not changed in the bill Section 4 adds penalties for the new crime of abuse of public trust. Section 5 adds official misconduct in the third degree as a class E felony. Section 6 amends the penal law by adding section 195.03, official misconduct in the second degree (Class D felony) when the crime of offi- cial misconduct in the third degree is committed and the perpetrator obtains a benefit (or deprives another of a benefit) valued in excess of $1,000. Section 7 adds an abuse of public trust crime that shifts class C, D or E felonies committed in this section one category higher than the speci- fied offense committed.   JUSTIFICATION: This bill will serve to first act as a strong deterrent to any elected official who is tempted to betray the public trust for monetary or other personal gain. New York citizens have been victimized over and over again by the very people they elected to represent and advocate for them in government. The sheer number of convictions during the past decade in New York is clear evidence that our current laws are a dismal failure in preventing numerous acts of corruption and abuse of office. The deter- rence goal of this legislation is set forth by creating and enhancing a straightforward set of laws that intertwine and clearly amount to high stakes for anyone contemplating these criminal acts. The second goal of this legislation is to ensure that, when a public official puts themselves above the taxpayers of this state, they will face much more stringent consequences than they have in the past.This bill also better equips those charged with prosecuting these crimes with the tools they need to do their job in a matter that leaves no doubt that these acts are unethical, dishonest, illegal and will be punished accordingly in our criminal statutes. Recent convictions have revealed that perpetrators of these crimes have arrived at a state of mind where they have justified their bad acts to themselves through years of escalating behaviors that go unchecked. The provisions in this legislation provide a more identifiable line between ethical and unethical, and legal and illegal. And, when that clearly defined line is crossed, prosecutors will be better able to prove these violations, and halt the acts as early as possible.   LEGISLATIVE HISTORY: This is a new bill.   FISCAL IMPLICATIONS: Expected cost savings to the state. Public corruption, bribery and abuse of public trust are weighty cost burdens to our taxpayers. Any crimes prevented through this section will provide immediate savings to the citizens of New York.   EFFECTIVE DATE: Immediate.
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A09566 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          9566
 
                   IN ASSEMBLY
 
                                     March 17, 2016
                                       ___________
 
        Introduced by M. of A. KAMINSKY -- read once and referred to the Commit-
          tee on Codes
 
        AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
          relation to bribery and abuse of public trust
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Section 200.03 of the penal law, as amended by section 18
     2  of subpart A of part H of chapter 55 of the laws of 2014, is amended  to
     3  read as follows:
     4  § 200.03 Bribery in the second degree.
     5    A person is guilty of bribery in the second degree when he confers, or
     6  offers  or  agrees to confer, any benefit valued in excess of [five] one
     7  thousand dollars upon a public servant [upon an agreement or understand-
     8  ing] with an intent to influence that such public servant's vote,  opin-
     9  ion,  judgment,  action,  decision or exercise of discretion as a public
    10  servant will thereby be influenced.
    11    Bribery in the second degree is a class C felony.
    12    § 2. Section 200.04 of the penal law, as  amended  by  section  19  of
    13  subpart  A  of  part  H of chapter 55 of the laws of 2014, is amended to
    14  read as follows:
    15  § 200.04 Bribery in the first degree.
    16    A person is guilty of bribery in the  first  degree  when  the  person
    17  confers,  or  offers  or agrees to confer: (1) any benefit upon a public
    18  servant [upon an agreement or understanding] with an intent to influence
    19  that such public servant's vote, opinion, judgment, action, decision  or
    20  exercise of discretion as a public servant will thereby be influenced in
    21  the  investigation,  arrest,  detention, prosecution or incarceration of
    22  any person for the commission or alleged commission of a class A  felony
    23  defined  in  article  two  hundred  twenty of this part or an attempt to
    24  commit any such class A felony; or (2) any benefit valued in  excess  of
    25  [one  hundred]  three  thousand  dollars  upon a public servant [upon an
    26  agreement or understanding] with an intent to influence that such public
    27  servant's vote, opinion,  judgment,  action,  decision  or  exercise  of
    28  discretion as a public servant will thereby be influenced.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14282-01-6

        A. 9566                             2
 
     1    Bribery in the first degree is a class B felony.
     2    § 3. Section 200.00 of the penal law, as amended by chapter 833 of the
     3  laws of 1986, is amended to read as follows:
     4  § 200.00 Bribery in the third degree.
     5    A  person is guilty of bribery in the third degree when he confers, or
     6  offers or agrees to confer, any benefit upon a public servant  [upon  an
     7  agreement or understanding] with an intent to influence that such public
     8  servant's  vote,  opinion,  judgment,  action,  decision  or exercise of
     9  discretion as a public servant will thereby be influenced.
    10    Bribery in the third degree is a class D felony.
    11    § 4. Subdivision 1 of section 80.00 of the penal law,  as  amended  by
    12  section  27 of subpart A of part H of chapter 55 of the laws of 2014, is
    13  amended to read as follows:
    14    1. A sentence to pay a fine for a felony shall be a sentence to pay an
    15  amount, fixed by the court, not exceeding the higher of
    16    a. five thousand dollars; or
    17    b. double the amount of the defendant's gain from  the  commission  of
    18  the  crime or, if the defendant is convicted of a crime defined in arti-
    19  cle four hundred ninety-six of  this  chapter,  any  higher  amount  not
    20  exceeding  three  times  the  amount  of  the  defendant's gain from the
    21  commission of such offense; or
    22    c. if the conviction is for any felony defined in article two  hundred
    23  twenty  or  two  hundred  twenty-one  of  this chapter, according to the
    24  following schedule:
    25    (i) for A-I felonies, one hundred thousand dollars;
    26    (ii) for A-II felonies, fifty thousand dollars;
    27    (iii) for B felonies, thirty thousand dollars;
    28    (iv) for C felonies, fifteen thousand dollars.
    29  When imposing a fine pursuant to the provisions of this  paragraph,  the
    30  court  shall  consider the profit gained by defendant's conduct, whether
    31  the amount of the fine is  disproportionate  to  the  conduct  in  which
    32  defendant  engaged,  its impact on any victims, and defendant's economic
    33  circumstances, including the defendant's ability to pay, the  effect  of
    34  the  fine  upon his or her immediate family or any other persons to whom
    35  the defendant owes an obligation of support; or
    36    d. for an abuse of public trust crime, as defined in section 196.00 of
    37  this chapter, or any offense for which the offender's status as a public
    38  servant constitutes an element of the offense as enumerated in paragraph
    39  (b) of subdivision one of section 196.00 of this chapter, the court,  in
    40  addition  to  any  other  penalty  which may be imposed pursuant to law,
    41  shall impose a fine in accordance with the provisions of paragraph a  or
    42  b of this subdivision, whichever is greater.
    43    § 5. Section 195.00 of the penal law, as amended by chapter 906 of the
    44  laws of 1990, is amended to read as follows:
    45  § 195.00 Official misconduct in the third degree.
    46    A  public servant is guilty of official misconduct in the third degree
    47  when, with intent to obtain a benefit or deprive  another  person  of  a
    48  benefit:
    49    1.  He or she commits an act relating to his or her office but consti-
    50  tuting an unauthorized exercise of his or her official functions,  know-
    51  ing that such act is unauthorized; or
    52    2.  He  or  she  knowingly  refrains  from  performing a duty which is
    53  imposed upon him or her by law or is clearly inherent in the  nature  of
    54  his or her office.
    55    Official  misconduct  in the third degree is a class [A misdemeanor] E
    56  felony.

        A. 9566                             3

     1    § 6. The penal law is amended by adding two new  sections  195.03  and
     2  195.04 to read as follows:
     3  § 195.03 Official misconduct in the second degree.
     4    A public servant is guilty of official misconduct in the second degree
     5  when  he  or  she  commits the crime of official misconduct in the third
     6  degree and he or she obtains any benefit or deprives another person of a
     7  benefit valued in excess of one thousand dollars.
     8    Official misconduct in the second degree is a class D felony.
     9  § 195.04 Official misconduct in the first degree.
    10    A public servant is guilty of official misconduct in the first  degree
    11  when  he  or  she  commits the crime of official misconduct in the third
    12  degree and he or she obtains any benefit or deprives another person of a
    13  benefit valued in excess of three thousand dollars.
    14    Official misconduct in the first degree is a class C felony.
    15    § 7. The penal law is amended by adding a new article 196 to  read  as
    16  follows:
    17                                 ARTICLE 196
    18                            ABUSE OF PUBLIC TRUST
    19  Section 196.00 Abuse of public trust crime.
    20  § 196.00 Abuse of public trust crime.
    21    1.  (a) A person commits an abuse of public trust crime when he or she
    22  commits a felony offense and either:
    23    (i) intentionally uses his or her position as a public  servant  in  a
    24  manner  that  significantly facilitates the commission or concealment of
    25  the offense; or
    26    (ii) attempts, conspires or solicits another to commit any felony, and
    27  in such attempt, conspiracy or solicitation intentionally  uses  his  or
    28  her position as a public servant to significantly facilitate the commis-
    29  sion or concealment of the offense.
    30    (b)  Notwithstanding  paragraph  (a)  of this subdivision, an abuse of
    31  public  trust  crime  shall  not  include  any  offense  for  which  the
    32  offender's  status  as  a  public  servant constitutes an element of the
    33  offense, including, but not limited to, the following provisions of this
    34  chapter: paragraph (g) of subdivision three  of  section  135.35  (labor
    35  trafficking);  subdivision  eight  of  section  135.60  (coercion in the
    36  second degree); paragraph (c)  of  subdivision  two  of  section  135.65
    37  (coercion  in  the  first  degree);  paragraph (c) of subdivision two of
    38  section 155.40 (grand larceny in  the  second  degree);  section  175.40
    39  (issuing  a  false  certificate); section 195.00 (official misconduct in
    40  the third degree); section 195.03 (official  misconduct  in  the  second
    41  degree);  section  195.04  (official  misconduct  in  the first degree);
    42  section 200.10 (bribe receiving in the  third  degree);  section  200.11
    43  (bribe  receiving in the second degree); section 200.12 (bribe receiving
    44  in the first degree); section  200.25  (receiving  reward  for  official
    45  misconduct  in  the second degree); section 200.27 (receiving reward for
    46  official misconduct in the  first  degree);  section  200.35  (receiving
    47  unlawful   gratuities);  section  200.50  (bribe  receiving  for  public
    48  office); paragraph (g) of subdivision five of section 230.34 (sex  traf-
    49  ficking);  or  any  attempt or conspiracy to commit any of the foregoing
    50  offenses.
    51    2. When a person is convicted of an abuse of public trust crime pursu-
    52  ant to subdivision one of this section and the specified  offense  is  a
    53  class  C,  D  or  E felony, the crime shall be deemed to be one category
    54  higher than the specified offense the defendant committed, or one  cate-
    55  gory  higher  than  the  offense  level  applicable  to  the defendant's

        A. 9566                             4

     1  conviction for an attempt or conspiracy to commit a  specified  offense,
     2  whichever is applicable.
     3    3.  Notwithstanding  any  other  provision  of  law,  when a person is
     4  convicted of a crime pursuant to subdivision one of this section and the
     5  specified offense is a class B felony:
     6    (a) the maximum term of the indeterminate sentence must  be  at  least
     7  six  years  if  the  defendant is sentenced pursuant to section 70.00 of
     8  this chapter;
     9    (b) the term of the determinate sentence must be at least eight  years
    10  if the defendant is sentenced pursuant to section 70.02 of this chapter;
    11    (c) the term of the determinate sentence must be at least twelve years
    12  if the defendant is sentenced pursuant to section 70.04 of this chapter;
    13    (d)  the  maximum  term of the indeterminate sentence must be at least
    14  four years if the defendant is sentenced pursuant to  section  70.05  of
    15  this chapter; and
    16    (e)  the maximum term of the indeterminate sentence or the term of the
    17  determinate sentence must be at least ten  years  if  the  defendant  is
    18  sentenced pursuant to section 70.06 of this chapter.
    19    4.  Notwithstanding  any  other  provision  of  law,  when a person is
    20  convicted of a crime pursuant to subdivision one of this section and the
    21  specified offense is a class A-I felony, the minimum period of the inde-
    22  terminate sentence shall be not less than twenty years.
    23    § 8. Subdivision 4 of section 200.50 of the criminal procedure law, as
    24  amended by section 15 of subpart A of part H of chapter 55 of  the  laws
    25  of 2014, is amended to read as follows:
    26    4.  A statement in each count that the grand jury, or, where the accu-
    27  satory instrument is a superior court information, the  district  attor-
    28  ney,  accuses  the  defendant  or  defendants  of  a designated offense,
    29  provided that in any prosecution under article four hundred  eighty-five
    30  of the penal law, the designated offense shall be the specified offense,
    31  as  defined  in  subdivision  three  of section 485.05 of the penal law,
    32  followed by the phrase "as a hate crime", and provided further  that  in
    33  any  prosecution  under  section 490.25 of the penal law, the designated
    34  offense shall be the specified offense, as defined in subdivision  three
    35  of  section  490.05 of the penal law, followed by the phrase "as a crime
    36  of terrorism"; and  provided  further  that  in  any  prosecution  under
    37  section  130.91  of  the  penal law, the designated offense shall be the
    38  specified offense, as defined in subdivision two of  section  130.91  of
    39  the  penal law, followed by the phrase "as a sexually motivated felony";
    40  and provided further that in any prosecution under section 496.06 of the
    41  penal law, the designated offense shall be  the  specified  offense,  as
    42  defined in subdivision two of such section, followed by the phrase "as a
    43  public  corruption  crime"; and provided further that in any prosecution
    44  under article one hundred ninety-six of the penal  law,  the  designated
    45  offense  shall  be the designated felony offense, as defined in subdivi-
    46  sion two of section 196.00 of the penal law, followed by the phrase  "as
    47  an abuse of public trust crime"; and
    48    §  9. Subdivision 7 of section 200.50 of the criminal procedure law is
    49  amended by adding a new paragraph (f) to read as follows:
    50    (f) in the case of an abuse of  public  trust  crime,  as  defined  in
    51  section  196.00  of  the  penal  law, specifies, as applicable, that the
    52  defendant or defendants committed, or attempted, conspired or  solicited
    53  another  to  commit, a felony and intentionally used his or her position
    54  as a public servant in  a  manner  that  significantly  facilitated  the
    55  commission or concealment of the offense; and
    56    § 10. This act shall take effect immediately.
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