Enacts the "anti-organized retail theft act"; criminalizes organized retail theft and establishes the crime of leader of an organized retail theft enterprise; relates to the authorization of jurisdiction and venue and authorized sentences for a pattern of criminal offenses; relates to the aggregated value of stolen merchandise; relates to the use of an emergency exit in the theft of property; relates to the possession of anti-security items; relates to retail sales receipt and universal product code label fraud; relates to itinerant vendors; and relates to theft with intent to resell on an online marketplace.
STATE OF NEW YORK
________________________________________________________________________
8468
IN ASSEMBLY
January 16, 2014
___________
Introduced by M. of A. CUSICK -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, in relation to criminalizing organized
retail theft and establishing the crime of leader of an organized
retail theft enterprise (Part A); to amend the penal law, in relation
to the authorization of jurisdiction and venue and authorized
sentences for a pattern of criminal offenses (Part B); to amend the
penal law, in relation to the aggregated value of stolen merchandise
(Part C); to amend the penal law, in relation to the use of emergency
exit in the theft of property (Part D); to amend the penal law, in
relation to the possession of anti-security items (Part E); to amend
the penal law, in relation to retail sales receipt and universal prod-
uct code label fraud (Part F); to amend the general business law, in
relation to itinerant vendors (Part G); and to amend the penal law, in
relation to theft with intent to resell on an online marketplace (Part
H)
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "anti-or-
2 ganized retail theft act".
3 § 2. This act enacts into law major components of legislation which
4 are necessary to implement the anti-organized retail theft act. Each
5 component is wholly contained within a Part identified as Parts A
6 through H. The effective date for each particular provision contained
7 within such Part is set forth in the last section of such Part. Any
8 provision in any section contained within a Part, including the effec-
9 tive date of the Part, which makes reference to a section "of this act",
10 when used in connection with that particular component, shall be deemed
11 to mean and refer to the corresponding section of the Part in which it
12 is found. Section four of this act sets forth the general effective date
13 of this act.
14 PART A
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01415-01-3
A. 8468 2
1 Section 1. Legislative intent. Organized retail theft is a growing
2 problem for retailers in this state and throughout the United States. It
3 is committed by professional theft rings which move across communities
4 and states to pilfer merchandise from supermarkets, chain drugstores,
5 independent pharmacies, mass merchandisers and convenience stores, then
6 resell that merchandise over the internet, at flea markets and to the
7 stores from which it was stolen. Popular items include infant formula,
8 skin care products, heartburn medications and shaving products. Accord-
9 ing to the Federal Bureau of Investigation, organized retail theft loss-
10 es have amounted to as much as $30 billion. This act is intended to
11 provide an additional tool to retailers to fight back against these
12 shoplifting gangs.
13 § 2. The penal law is amended by adding two new sections 155.50 and
14 155.55 to read as follows:
15 § 155.50 Retail theft.
16 1. Definitions. The following definitions apply to this section:
17 (a) "shopping cart" means pushcarts of the type or types which are
18 commonly provided by grocery stores, drugstores or other retail mercan-
19 tile establishments for the use of the public in transporting commod-
20 ities in stores and markets and, incidentally, from the stores to a
21 place outside the store;
22 (b) "store or other retail mercantile establishment" means a place
23 where merchandise is displayed, held, stored or sold or offered to the
24 public for sale;
25 (c) "merchandise" means any goods, chattels, foodstuffs or wares of
26 any type and description, regardless of the value thereof;
27 (d) "merchant" means any owner or operator of any store or other
28 retail mercantile establishment, or any agent, servant, employee,
29 lessee, consignee, officer, director, franchisee or independent contrac-
30 tor of such owner or proprietor;
31 (e) "person" means any individual or individuals, including an agent,
32 servant or employee of a merchant where the facts of the situation so
33 require;
34 (f) "conceal" means to conceal merchandise so that, although there may
35 be some notice of its presence, it is not visible through ordinary
36 observation;
37 (g) "full retail value" means the merchant's stated or advertised
38 price of the merchandise;
39 (h) "premises of a store or retail mercantile establishment" means and
40 includes but is not limited to, the retail mercantile establishment; any
41 common use areas in shopping centers and all parking areas set aside by
42 a merchant or on behalf of a merchant for the parking of vehicles for
43 the convenience of the patrons of such retail mercantile establishment;
44 (i) "under-ring" means to cause the cash register or other sale
45 recording device to reflect less than the full retail value of the
46 merchandise;
47 (j) "anti-shoplifting or inventory control device countermeasure"
48 means any item or device which is designed, manufactured, modified, or
49 altered to defeat any anti-shoplifting or inventory control device; and
50 (k) "organized retail theft enterprise" means any association of two
51 or more persons who engage in the conduct of or are associated for the
52 purpose of effectuating the transfer or sale of shoplifted merchandise.
53 2. Shoplifting. Shoplifting shall consist of any one or more of the
54 following acts:
55 (a) for any person purposely to take possession of, carry away, trans-
56 fer or cause to be carried away or transferred, any merchandise
A. 8468 3
1 displayed, held, stored or offered for sale by any store or other retail
2 mercantile establishment with the intention of depriving the merchant of
3 the possession, use or benefit of such merchandise or converting the
4 same to the use of such person without paying to the merchant the full
5 retail value thereof;
6 (b) for any person purposely to conceal upon his or her person or
7 otherwise any merchandise offered for sale by any store or other retail
8 mercantile establishment with the intention of depriving the merchant of
9 the processes, use or benefit of such merchandise or converting the same
10 to the use of such person without paying to the merchant the value ther-
11 eof;
12 (c) for any person purposely to alter, transfer or remove any label,
13 price tag or marking indicia of value or any other markings which aid in
14 determining value affixed to any merchandise displayed, held, stored or
15 offered for sale by any store or other retail mercantile establishment
16 and to attempt to purchase such merchandise personally or in consort
17 with another at less than the full retail value with the intention of
18 depriving the merchant of all or some part of the value thereof;
19 (d) for any person purposely to transfer any merchandise displayed,
20 held, stored or offered for sale by any store or other retail mercantile
21 establishment from the container in or on which the same shall be
22 displayed to any other container with intent to deprive the merchant of
23 all or some part of the retail value thereof;
24 (e) for any person purposely to under-ring with the intention of
25 depriving the merchant of the full retail value thereof; and
26 (f) for any person purposely to remove a shopping cart from the prem-
27 ises of a store or other retail mercantile establishment without the
28 consent of the merchant given at the time of such removal with the
29 intention of permanently depriving the merchant of the possession, use
30 or benefit of such cart.
31 3. Gradation. (a) Shoplifting constitutes grand larceny in the second
32 degree if:
33 (i) the full retail value of the merchandise is fifty thousand dollars
34 or more; or
35 (ii) the offense is committed in furtherance of or in conjunction with
36 an organized retail theft enterprise and the full retail value of the
37 merchandise is one thousand dollars or more.
38 (b) Shoplifting constitutes grand larceny in the third degree if:
39 (i) the full retail value of the merchandise is at least three thou-
40 sand dollars but is less than fifty thousand dollars; or
41 (ii) the offense is committed in furtherance of or in conjunction with
42 an organized retail theft enterprise and the full retail value of the
43 merchandise is less than one thousand dollars.
44 (c) Shoplifting constitutes grand larceny in the fourth degree if the
45 full retail value of the merchandise is at least a thousand dollars but
46 is less than three thousand dollars.
47 (d) Shoplifting constitutes petit larceny if the full retail value of
48 the merchandise is less than one thousand dollars.
49 (e) The value of the merchandise involved in a violation of this
50 section may be aggregated in determining the grade of the offense where
51 the acts or conduct constituting a violation were committed pursuant to
52 one scheme or course of conduct, whether from the same person or several
53 persons, or were committed in furtherance of or in conjunction with an
54 organized retail theft enterprise.
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1 (f) Any person who possesses or uses any anti-shoplifting or inventory
2 control device countermeasure within any store or other retail mercan-
3 tile establishment is guilty of a class B misdemeanor.
4 4. Presumptions. Any person purposely concealing unpurchased merchan-
5 dise of any store or other retail mercantile establishment, either on
6 the premises or outside the premises of such store or other retail
7 mercantile establishment, shall be prima facie presumed to have so
8 concealed such merchandise with the intention of depriving the merchant
9 of the possession, use or benefit of such merchandise without paying the
10 full retail value thereof, and the finding of such merchandise concealed
11 upon the person or among the belongings of such person shall be prima
12 facie evidence of purposeful concealment; and if such person conceals,
13 or causes to be concealed, such merchandise upon the person or among the
14 belongings of another, the finding of the same shall also be prima facie
15 evidence of willful concealment on the part of the person so concealing
16 such merchandise.
17 5. Apprehension. (a) A law enforcement officer, or a special officer,
18 or a merchant, who has probable cause for believing that a person has
19 willfully concealed unpurchased merchandise and that he or she can
20 recover the merchandise by taking the person into custody, may, for the
21 purpose of attempting to effect recovery thereof, take the person into
22 custody and detain him or her in a reasonable manner for not more than a
23 reasonable time, and the taking into custody by a law enforcement offi-
24 cer or special officer or merchant shall not render such person crimi-
25 nally or civilly liable in any manner or to any extent whatsoever.
26 (b) Any law enforcement officer may arrest without warrant any person
27 he or she has probable cause for believing has committed the offense of
28 shoplifting as defined in this section.
29 (c) A merchant who causes the arrest of a person for shoplifting, as
30 provided for in this section, shall not be criminally or civilly liable
31 in any manner or to any extent whatsoever where the merchant has proba-
32 ble cause for believing that the person arrested committed the offense
33 of shoplifting.
34 § 155.55 Leader of an organized retail theft enterprise.
35 1. A person is a leader of an organized retail theft enterprise if he
36 or she conspires with others as an organizer, supervisor, financier or
37 manager, to engage for profit in a scheme or course of conduct to effec-
38 tuate the transfer or sale of shoplifted merchandise. Leader of organ-
39 ized retail theft enterprise constitutes larceny in the second degree.
40 Notwithstanding the provisions of section 80.00 of this chapter, the
41 court may impose a fine not to exceed two hundred fifty thousand dollars
42 or five times the retail value of the merchandise seized at the time of
43 the arrest, whichever is greater.
44 2. Notwithstanding the provisions of section 70.35 of this chapter, a
45 conviction of leader of an organized retail theft enterprise shall not
46 merge with the conviction for any offense which is the object of the
47 conspiracy. Nothing contained in this section shall prohibit the court
48 from imposing an extended term pursuant to article seventy of this chap-
49 ter; nor shall this section be construed in any way to preclude or limit
50 the prosecution or conviction of any person for conspiracy under article
51 one hundred five of this chapter, or any prosecution or conviction for
52 any other offense.
53 3. It shall not be necessary in any prosecution under this section for
54 the state to prove that any intended profit was actually realized. The
55 trier of fact may infer that a particular scheme or course of conduct
56 was undertaken for profit from all of the attending circumstances,
A. 8468 5
1 including but not limited to the number of persons involved in the
2 scheme or course of conduct, the actor's net worth and his or her
3 expenditures in relation to his or her legitimate sources of income, the
4 amount of merchandise involved, or the amount of cash or currency
5 involved.
6 4. It shall not be a defense to a prosecution under this section that
7 any shoplifted merchandise was brought into or transported in this state
8 solely for ultimate distribution in another jurisdiction; nor shall it
9 be a defense that any profit was intended to be made in another juris-
10 diction.
11 § 3. Section 155.40 of the penal law, as amended by chapter 515 of the
12 laws of 1986, is amended to read as follows:
13 § 155.40 Grand larceny in the second degree.
14 A person is guilty of grand larceny in the second degree when he or
15 she steals property and when:
16 1. [The] the value of the property exceeds fifty thousand dollars;
17 [or]
18 2. [The] the property, regardless of its nature and value, is obtained
19 by extortion committed by instilling in the victim a fear that the actor
20 or another person will (a) cause physical injury to some person in the
21 future, or (b) cause damage to property, or (c) use or abuse his or her
22 position as a public servant by engaging in conduct within or related to
23 his or her official duties, or by failing or refusing to perform an
24 official duty, in such manner as to affect some person adversely; or
25 3. the person is a leader of an organized retail theft enterprise as
26 provided in section 155.55 of this article.
27 Grand larceny in the second degree is a class C felony.
28 § 4. This act shall take effect on the ninetieth day after it shall
29 have become a law.
30 PART B
31 Section 1. The penal law is amended by adding a new section 70.16 to
32 read as follows:
33 § 70.16 Sentences of imprisonment or fines for a pattern of criminal
34 offense.
35 1. Definition of pattern of criminal offense. A "pattern of criminal
36 offense" means two or more criminal offenses are committed and:
37 (a) are part of the same plan, scheme or adventure;
38 (b) are a sequence of two or more of the same criminal offenses
39 committed and are not separated by an interval of more than thirty days
40 between the first and second offense, the second and third, and so on;
41 or
42 (c) each proceeds from or possesses an antecedent element of a prior
43 incident or pattern of fraud, robbery, burglary, theft, identity theft,
44 receipt of stolen property, false personating, false pretenses, obtain-
45 ing property by trick or deception, using a credit card or debit card
46 without consent, or the making, transferring or receipt of a false or
47 fraudulent identification card.
48 2. Authorized sentence. When the court has found that a person has
49 engaged in a pattern of criminal offenses in two or more counties in
50 this state or who attempted or conspired with others to engage in a
51 pattern of criminal offenses, the court may impose:
52 (a) a sentence of imprisonment in the department of corrections for a
53 term not exceeding two years;
A. 8468 6
1 (b) a sentence of imprisonment in the county jail for a term not
2 exceeding one year;
3 (c) a fine in an amount not exceeding twenty-five thousand dollars; or
4 (d) both, a fine in an amount not exceeding twenty-five thousand
5 dollars and imprisonment.
6 Such punishment shall be in addition to any penalty imposed for any
7 offense involved in the pattern of criminal offenses.
8 3. Jurisdiction and venue. (a) A person may be prosecuted for criminal
9 actions with respect to each of the alleged criminal offenses included
10 within a pattern of criminal offenses as defined in subdivision one of
11 this section, in any county where at least one alleged criminal offense
12 has occurred and such offense is part of the alleged pattern of criminal
13 activity. One district court may possess jurisdiction over all criminal
14 offenses, persons and property that are part of, or are directly related
15 to, each or all of the alleged criminal offenses forming the alleged
16 pattern of criminal offenses.
17 (b) Subdivision two of this section shall be enforced in any county
18 where at least one alleged criminal offense has occurred and such
19 offense is part of the alleged pattern of criminal activity.
20 § 2. This act shall take effect on the first of November next succeed-
21 ing the date on which it shall have become a law.
22 PART C
23 Section 1. Section 155.30 of the penal law is amended by adding two
24 new subdivisions 1-a and 1-b to read as follows:
25 1-a. The property is stolen from a retail mercantile establishment as
26 defined in section two hundred seventeen of the general business law and
27 the aggregated value of price tags, sticker prices, or otherwise adver-
28 tised retail prices of such property exceeds one thousand dollars; or
29 1-b. The property is stolen by one person, or by two or more persons
30 working in association, from one or more than one retail mercantile
31 establishment as defined in section two hundred seventeen of the general
32 business law within a period of thirty days or less between the first
33 and second episode, the second and third episode, and so on, and the
34 aggregated value of price tags, sticker prices, or otherwise advertised
35 retail prices of such property exceeds one thousand dollars; or
36 § 2. This act shall take effect on the first of November next succeed-
37 ing the date on which it shall have become a law.
38 PART D
39 Section 1. Section 155.30 of the penal law is amended by adding a new
40 subdivision 14 to read as follows:
41 14. The property is stolen from a retail mercantile establishment and,
42 to facilitate the theft, the person leaves the retail mercantile estab-
43 lishment with such property by use of a designated emergency exit. For
44 the purposes of this subdivision, the term "retail mercantile establish-
45 ment" shall mean a place where goods, wares or merchandise are offered
46 to the public for sale.
47 § 2. This act shall take effect on the ninetieth day after it shall
48 have become a law.
49 PART E
A. 8468 7
1 Section 1. Section 155.30 of the penal law is amended by adding a new
2 subdivision 15 to read as follows:
3 15. The property is taken by a person who is in possession of an anti-
4 security item. For the purposes of this subdivision an "anti-security
5 item" is defined as an item designed for the purpose of overcoming
6 detection of security markings or attachments placed on property offered
7 for sale at such an establishment.
8 § 2. Section 170.47 of the penal law, as added by chapter 580 of the
9 laws of 1983, is amended to read as follows:
10 § 170.47 Criminal possession of an anti-security item.
11 A person is guilty of criminal possession of an anti-security item,
12 when with intent to steal property at a retail mercantile establishment
13 as defined in article twelve-B of the general business law, he or she
14 knowingly possesses in such an establishment an item designed for the
15 purpose of overcoming detection of security markings or attachments
16 placed on property offered for sale at such an establishment.
17 Criminal possession of an anti-security item is a class [B] A misde-
18 meanor.
19 § 3. This act shall take effect on the first of November next succeed-
20 ing the date on which it shall have become a law.
21 PART F
22 Section 1. The penal law is amended by adding four new sections
23 165.80, 165.81, 165.82 and 165.83 to read as follows:
24 § 165.80 Definitions; application to offenses regarding retail sales
25 receipts and universal product code labels.
26 As used in sections 165.81, 165.82 and 165.83 of this article, the
27 following terms have the following meanings:
28 1. The term "retail sales receipt" means any handwritten or machine or
29 computer produced document as properly issued by a retailer to acknowl-
30 edge payment received by a customer.
31 2. The term "uniform product code label" means any bar code or other
32 coding system designed to be read by computer which contains pricing
33 information and other related information used by a retailer and read by
34 a computer at point of purchase for purposes of establishing sale price
35 of a good.
36 § 165.81 Retail sales receipt or universal product code fraud in the
37 second degree.
38 A person is guilty of retail sales receipt or universal product code
39 fraud in the second degree when, with intent to deceive or defraud a
40 person or persons engaged in the retail sale of goods or services, he or
41 she uses, transfers, makes, alters, counterfeits or reproduces a retail
42 sales receipt or universal product code knowing such to be counterfeit.
43 Retail sales receipt or universal product code fraud in the second
44 degree is a class A misdemeanor.
45 § 165.82 Retail sales receipt or universal product code fraud in the
46 first degree.
47 A person is guilty of retail sales receipt or universal product code
48 fraud in the first degree when, with intent to deceive or defraud a
49 person or persons engaged in the retail sale of goods or services, he or
50 she uses, transfers, makes, alters, counterfeits or reproduces fifteen
51 or more retail sales receipts or universal product codes or combination
52 thereof knowing such to be counterfeit.
53 Retail sales receipt or universal product code fraud in the first
54 degree is a class E felony.
A. 8468 8
1 § 165.83 Possession of a fraudulent retail sales receipt or universal
2 product code manufacturing device.
3 A person is guilty of possession of a fraudulent retail sales receipt
4 or universal product code manufacturing device when, with intent to
5 deceive or defraud a person or persons engaged in the retail sale of
6 goods or services, he or she possesses a device that manufactures frau-
7 dulent retail sales receipts or universal product code labels.
8 Possession of a fraudulent retail sales receipt or universal product
9 code manufacturing device is a class E felony.
10 § 2. This act shall take effect on the first of January next succeed-
11 ing the date on which it shall have become a law.
12 PART G
13 Section 1. Section 38 of the general business law, as added by chapter
14 282 of the laws of 1995, is amended to read as follows:
15 § 38. Prohibited sales. No itinerant vendor, except for a manufactur-
16 er, an authorized manufacturer's representative, or authorized distribu-
17 tor, shall offer for sale any of the following items:
18 1. [Food manufactured and packaged for sale for consumption by a child
19 under the age of two years; or
20 2. Drugs as defined in section three thousand three hundred two of the
21 public health law] Baby food, which shall include any food manufactured
22 and packaged specifically for consumption by a child under two years of
23 age. The term shall include infant formula;
24 2. Nonprescription drugs, which shall include any non-narcotic medi-
25 cine or drug that may be sold without a prescription. The term shall
26 include any drugs commonly known as "over-the-counter drugs," herbal
27 products, dietary supplements, botanical extracts, and vitamins and
28 substances recognized as drugs in the official United States Pharmacopo-
29 eia, official Homeopathic Pharmacopoeia of the United States, or offi-
30 cial National Formulary, or any supplement to such publications;
31 3. Cosmetics, which shall mean merchandise, other than soap, but
32 including razor blades, that is intended to be rubbed, poured, sprin-
33 kled, or sprayed onto, introduced into, or otherwise applied to the
34 human body or any part thereof for cleansing, beautifying, promoting
35 attractiveness, or altering the appearance of the human body or any part
36 thereof; or
37 4. Batteries, which shall mean a device consisting of one or more
38 cells, each cell consisting of a positive electrode, a negative elec-
39 trode and an electrolyte, which is used to provide stored electrical
40 power.
41 § 2. This act shall take effect immediately.
42 PART H
43 Section 1. The opening paragraph of section 155.30 of the penal law,
44 as amended by chapter 515 of the laws of 1986, is amended to read as
45 follows:
46 A person is guilty of grand larceny in the fourth degree when he or
47 she steals property or fraudulently obtains property and when:
48 § 2. Section 155.30 of the penal law is amended by adding two new
49 subdivisions 12 and 13 to read as follows:
50 12. The value of the property or aggregated value exceeds one thousand
51 dollars and the person had the intent to resell such property on an
52 online marketplace.
A. 8468 9
1 For the purposes of this subdivision and subdivision thirteen of this
2 section, "online marketplace" shall mean an internet site used to facil-
3 itate the sale of goods and services, including any internet site used
4 for auctions that are operated by any buyer, seller, or third-party
5 intermediary.
6 13. The person sells, attempts to sell, or possesses stolen or fraudu-
7 lently obtained property with an intent to resell such property on an
8 online marketplace, and such person knew or should have known that such
9 property was stolen.
10 § 3. This act shall take effect on the ninetieth day after it shall
11 have become a law.
12 § 3. Severability clause. If any clause, sentence, paragraph, subdivi-
13 sion, section or part of this act shall be adjudged by any court of
14 competent jurisdiction to be invalid, such judgment shall not affect,
15 impair, or invalidate the remainder thereof, but shall be confined in
16 its operation to the clause, sentence, paragraph, subdivision, section
17 or part thereof directly involved in the controversy in which such judg-
18 ment shall have been rendered. It is hereby declared to be the intent of
19 the legislature that this act would have been enacted even if such
20 invalid provisions had not been included herein.
21 § 4. This act shall take effect immediately provided, however, that
22 the applicable effective dates of Parts A through H of this act shall be
23 as specifically set forth in the last section of such Parts.
