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A06665 Summary:

BILL NOA06665
 
SAME ASNo Same As
 
SPONSORCrespo
 
COSPNSR
 
MLTSPNSR
 
Add Art 262 SS262.00 - 262.35, Pen L; add S11-108, Gen Ob L
 
Relates to establishing the crime of financial exploitation of a vulnerable elderly person and provides for civil liability for financial exploitation of a vulnerable elderly person.
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A06665 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6665
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 30, 2015
                                       ___________
 
        Introduced by M. of A. CRESPO -- read once and referred to the Committee
          on Codes
 
        AN  ACT to amend the penal law, in relation to establishing the crime of
          financial exploitation of a vulnerable elderly person or a person with
          a disability; and to amend the general obligations law, in relation to
          civil liability for financial exploitation  of  a  vulnerable  elderly
          person
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1.  The penal law is amended by adding a new  article  262  to
     2  read as follows:
     3                                 ARTICLE 262
     4          FINANCIAL EXPLOITATION OF A VULNERABLE ELDERLY PERSON OR
     5                         A PERSON WITH A DISABILITY
     6  Section 262.00 Definitions.
     7          262.05 Financial  exploitation of a vulnerable elderly person or
     8                    a person with a disability in the fourth degree.
     9          262.10 Financial exploitation of a vulnerable elderly person  or
    10                    a person with a disability in the third degree.
    11          262.15 Financial  exploitation of a vulnerable elderly person or
    12                    a person with a disability in the second degree.
    13          262.20 Financial exploitation of a vulnerable elderly person  or
    14                    a person with a disability in the first degree.
    15          262.30 Financial exploitation; no defense.
    16          262.35 Financial exploitation; defense.
    17  § 262.00 Definitions.
    18    For purposes of this article, the following definitions shall apply:
    19    1.  "Vulnerable  elderly  person" means a person sixty years of age or
    20  older who is suffering from  a  disease  or  infirmity  associated  with
    21  advanced  age  and manifested by physical or mental dysfunctioning which
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05739-01-5

        A. 6665                             2
 
     1  renders such person incapable of appraising or preventing the commission
     2  of the offense.
     3    2.  "Person  with  a  disability"  means  a person who has a physical,
     4  mental or medical impairment resulting from  anatomical,  physiological,
     5  or  neurological conditions that prevent the exercise of a normal bodily
     6  function or that substantially impair cognitive  function,  and  include
     7  but  are  not limited to, impairments requiring the use of an artificial
     8  device to move, walk, see, hear, or breathe,  such  as  a  wheel  chair,
     9  braces, crutches, respirator, or other supportive equipment, or use of a
    10  guide dog or other guiding device.
    11    3.  "Person"  includes any individual, firm, partnership, association,
    12  private or public corporation, or a government or  governmental  instru-
    13  mentality.
    14    4.  "Intimidation"  means  the  communication  to a vulnerable elderly
    15  person or a person with a disability that he or she shall be deprived of
    16  food or nutrition, shelter, prescribed medication or  medical  care  and
    17  treatment; or the use of, or threatened use of, unlawful physical force;
    18  or  any threat involving extortion as defined in paragraph (e) of subdi-
    19  vision two of section 155.05 of this chapter.
    20    5. "Deception" means a false representation or concealment of a matter
    21  of fact, whether by words or conduct, by false or misleading statements,
    22  which deceives and is intended to deceive, the vulnerable elderly person
    23  or person with a disability, so that he or she shall act upon it to  his
    24  or her economic detriment.
    25    6.  "Obtain"  includes, but is not limited to, the bringing about of a
    26  transfer or purported transfer of property or of a legal interest there-
    27  in, whether to the obtainer or another.
    28    7. "Control" means the power, right or authority  to  manage,  direct,
    29  superintend,  restrict,  regulate,  govern,  administer,  or oversee the
    30  whole or any part of the property of a vulnerable elderly  person  or  a
    31  person with a disability.
    32    8.  "A  person  stands  in  a  position of trust or confidence" with a
    33  vulnerable elderly person or a person with a disability when he or she:
    34    (a) is a parent, spouse, adult child or other  relative  by  blood  or
    35  marriage of the vulnerable elderly person or the person with a disabili-
    36  ty, or
    37    (b)  is a joint tenant or tenant in common with the vulnerable elderly
    38  person or the person with a disability, or
    39    (c) has a power of attorney or other legal or  fiduciary  relationship
    40  with the vulnerable elderly person or the person with a disability, or
    41    (d)  receives  monetary  or other valuable consideration for providing
    42  care for the vulnerable elderly person or the person with a  disability,
    43  or
    44    (e)  lives  with or provides some component of home care services on a
    45  continuing basis to the vulnerable elderly person or the person  with  a
    46  disability  and  includes a neighbor or friend who does not provide such
    47  services but has access to the vulnerable elderly person or  the  person
    48  with a disability based on such relationship.
    49    9. "Property" means any money, personal property, real property, thing
    50  in  action,  computer  data,  computer  program,  evidence  of  debt  or
    51  contract, or any article, substance or thing of value.
    52    10. "Value of property" shall have  the  same  meaning  and  shall  be
    53  ascertained in accordance with section 155.20 of this chapter.
    54  § 262.05 Financial  exploitation  of  a  vulnerable  elderly person or a
    55             person with a disability in the fourth degree.

        A. 6665                             3
 
     1    A person is guilty of financial exploitation of a  vulnerable  elderly
     2  person  or  person with a disability in the fourth degree when he or she
     3  stands in a position of trust or confidence with the vulnerable  elderly
     4  person  or  the  person with a disability and he or she knowingly and by
     5  deception  or  intimidation  obtains  control  over  the property of the
     6  vulnerable elderly person or the person with a disability,  with  intent
     7  to  wrongfully  deprive  that  person  of the title to, use, benefit, or
     8  possession of such property.
     9    Financial exploitation of a vulnerable elderly person or a person with
    10  a disability in the fourth degree is a class A misdemeanor.
    11  § 262.10 Financial exploitation of a  vulnerable  elderly  person  or  a
    12             person with a disability in the third degree.
    13    A  person  is guilty of financial exploitation of a vulnerable elderly
    14  person or a person with a disability in the third degree when he or  she
    15  stands  in a position of trust or confidence with the vulnerable elderly
    16  person or the person with a disability and he or she  knowingly  and  by
    17  deception  or  intimidation  obtains  control  over  the property of the
    18  vulnerable elderly person or the person with a disability,  with  intent
    19  to  wrongfully  deprive  that  person  of the title to, use, benefit, or
    20  possession of such property, and the value of the property  exceeds  one
    21  thousand dollars.
    22    Financial exploitation of a vulnerable elderly person or a person with
    23  a disability in the third degree is a class E felony.
    24  §  262.15  Financial  exploitation  of  a vulnerable elderly person or a
    25             person with a disability in the second degree.
    26    A person is guilty of financial exploitation of a  vulnerable  elderly
    27  person or a person with a disability in the second degree when he or she
    28  stands  in a position of trust or confidence with the vulnerable elderly
    29  person or the person with a disability and he or she  knowingly  and  by
    30  deception  or  intimidation  obtains  control  over  the property of the
    31  vulnerable elderly person or the person with a disability,  with  intent
    32  to  wrongfully  deprive  that  person  of the title to, use, benefit, or
    33  possession of such property, and the value of the property exceeds three
    34  thousand dollars.
    35    Financial exploitation of a vulnerable elderly person or a person with
    36  a disability in the second degree is a class D felony.
    37  § 262.20 Financial exploitation of a  vulnerable  elderly  person  or  a
    38             person with a disability in the first degree.
    39    A  person  is guilty of financial exploitation of a vulnerable elderly
    40  person or a person with a disability in the first degree when he or  she
    41  stands  in a position of trust or confidence with the vulnerable elderly
    42  person or the person with a disability and he or she  knowingly  and  by
    43  deception  or  intimidation  obtains  control  over  the property of the
    44  vulnerable elderly person or the person with a disability,  with  intent
    45  to  wrongfully  deprive  that  person  of the title to, use, benefit, or
    46  possession of such property, and the value of the property exceeds fifty
    47  thousand dollars.
    48    Financial exploitation of a vulnerable elderly person or a person with
    49  a disability in the first degree is a class C felony.
    50  § 262.30 Financial exploitation; no defense.
    51    It shall be no defense to any prosecution for  financial  exploitation
    52  that the defendant did not know the facts and conditions responsible for
    53  making  the  victim a vulnerable elderly person or a person with a disa-
    54  bility.
    55  § 262.35 Financial exploitation; defense.

        A. 6665                             4
 
     1    No provision of this  article  shall  be  deemed  to  impose  criminal
     2  liability  upon any person who in good faith seeks to assist the vulner-
     3  able elderly person or person with a disability in the management of his
     4  or her property, but through no fault of such person is unable to assist
     5  the vulnerable elderly person or the person with a disability.
     6    §  2.  The  general obligations law is amended by adding a new section
     7  11-108 to read as follows:
     8    § 11-108. Civil liability for financial exploitation of  a  vulnerable
     9  elderly  person or a person with a disability. 1. A person charged by an
    10  "accusatory instrument", as defined in subdivision one of  section  1.20
    11  of  the  criminal procedure law, with the offense of financial exploita-
    12  tion of a vulnerable elderly person or a person with a disability as set
    13  out in article two hundred sixty-two of the penal law, and who fails  or
    14  refuses  to  return  the  victim's  property within sixty days following
    15  receipt of a written demand from the victim or the victim's legal repre-
    16  sentative shall, upon a finding that such person unlawfully obtained the
    17  victim's property, be liable to the victim  or  to  the  estate  of  the
    18  victim  in  damages  of  treble  the amount of the value of the property
    19  wrongfully obtained, plus reasonable attorney fees and court costs.
    20    2. The burden of proof that  the  defendant  unlawfully  obtained  the
    21  victim's property shall be by a preponderance of the evidence.
    22    3.  This  section  shall be operative whether or not the defendant has
    23  been convicted of the offense.
    24    4. This section shall be operative in addition to any other  right  of
    25  action  or  recovery  otherwise available under law to the victim or the
    26  victim's estate.
    27    § 3. This act shall take effect on the first of November next succeed-
    28  ing the date on which it shall have become a law.
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