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S05820 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5820
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                       May 2, 2017
                                       ___________
 
        Introduced  by  Sen.  DIAZ  --  read twice and ordered printed, and when
          printed to be committed to the Committee on Consumer Protection
 
        AN ACT to amend the general business  law,  in  relation  to  mercantile
          establishments and the defense of lawful detention
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 218 of the general  business  law,  as  amended  by
     2  chapter 374 of the laws of 1994, is amended to read as follows:
     3    §  218.  1.  Defense  of  lawful  detention.   In any action for false
     4  arrest, false imprisonment, unlawful detention, defamation of character,
     5  assault, trespass, or invasion of civil rights, brought by any person by
     6  reason of having been detained on or in the immediate  vicinity  of  the
     7  premises  of  (a)  a  retail mercantile establishment for the purpose of
     8  investigation or questioning as to criminal possession of an anti-secur-
     9  ity item as defined in section 170.47 of the penal  law  or  as  to  the
    10  ownership  of  any  merchandise, or (b) a motion picture theater for the
    11  purposes of investigation or questioning as to the  unauthorized  opera-
    12  tion  of  a  recording device in a motion picture theater, it shall be a
    13  defense to such action that the person  was  detained  in  a  reasonable
    14  manner  and  for not more than a reasonable time to permit such investi-
    15  gation or questioning by a peace officer acting pursuant to his  or  her
    16  special  duties, police officer or by the owner of the retail mercantile
    17  establishment or motion picture theater, his or her authorized  employee
    18  or agent, and that such officer, owner, employee or agent had reasonable
    19  grounds  to  believe  that the person so detained was guilty of criminal
    20  possession of an anti-security item as defined in section 170.47 of  the
    21  penal  law  or  was  committing  or attempting to commit larceny on such
    22  premises of such merchandise or was engaged in the  unauthorized  opera-
    23  tion of a recording device in a motion picture theater.
    24    2.  As  used  in this section, "reasonable grounds" shall include, but
    25  not be limited to, knowledge that  a  person  [(i)]  (a)  has  concealed
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07383-02-7

        S. 5820                             2
 
     1  possession  of unpurchased merchandise of a retail mercantile establish-
     2  ment, or [(ii)] (b) has possession of an item designed for  the  purpose
     3  of  overcoming  detection  of  security  markings  attachments placed on
     4  merchandise  offered  for  sale at such an establishment, or [(iii)] (c)
     5  has possession of a recording device in a  theater  in  which  a  motion
     6  picture is being exhibited [and a].
     7    3.  A  "reasonable  time" shall mean the time necessary, not to exceed
     8  one hour, except for extraordinary circumstances, to permit  the  person
     9  detained to make a statement or to refuse to make a statement[,] and the
    10  time necessary to examine employees and records of the mercantile estab-
    11  lishment  relative to the ownership of the merchandise, or possession of
    12  such an item or device.
    13    4.   The release from detention shall  not  be  conditioned  upon  any
    14  requirement  that,  the  person  detained pursuant to subdivision one of
    15  this section, or his or her parent or legal  guardian,  sign  any  docu-
    16  ments, statements, or agreements to pay damages. Any documents presented
    17  shall not contain any message stating that such document or statement is
    18  being  signed  voluntarily and without coercion. Any person detained, or
    19  his or her parent or legal guardian, who signs any  statement  or  docu-
    20  ments,  shall,  upon release, be provided with copies of such statements
    21  or documents so signed.  A minor, under the age  of  eighteen,  detained
    22  pursuant  to this section, should immediately be afforded the ability to
    23  contact his or her parents or legal guardian.
    24    5. Such detention at such vicinity shall not authorize the  taking  of
    25  such person's fingerprints at such vicinity unless the taking of finger-
    26  prints  is otherwise authorized by section 160.10 of the criminal proce-
    27  dure law and are taken by the  arresting  or  other  appropriate  police
    28  officer or agency described therein in accordance with section 140.20 or
    29  140.27 of such law. Whenever fingerprints are taken, the requirements of
    30  article  one  hundred sixty of the criminal procedure law shall apply as
    31  if fully set forth herein.
    32    § 2. This act shall take effect immediately.
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