Establishes definitions with respect to larceny from mentally disabled or mentally incapacitated persons; sets forth an affirmative defense if the defendant appropriated the property in the course of rendering assistance which benefitted such person in the management of his or her affairs and the value of such property was commensurate with the benefit conferred.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3064
SPONSOR: Clark (MS) TITLE OF BILL: An act to amend the penal law, in relation to creating
definitions with respect to larceny from a mentally disabled or mentally
incapacitated person and establishing an affirmative defense thereto
PURPOSE OR GENERAL IDEA OF BILL: This bill amends the penal law to
include the crime of financial exploitation of the elderly by amending
section 155.00 et seq., (larceny), and was recommended by the New York
State District Attorney's Association's Elder Abuse Committee.
SUMMARY OF SPECIFIC PROVISIONS: This bill amends Penal Law sec. 155.00
by adding new subdivisions 10 and 11 which define the terms "mentally
disabled" and "mentally incapacitated" as well as amending section
155.05 (2) (a) which defines a wrongful taking to include thefts by
defendants who know or have reason to know that the victim suffers from
a mental disability or incapacity. In addition, the bill amends section
155.15, creating an affirmative defense applicable to cases in which the
defendant obtained property in the course of rendering assistance which
benefited the elderly owner, as long as the value of appropriated prop-
erty was commensurate with the benefit received.
JUSTIFICATION:
According to the National Center on Elder Abuse, between one and ten
percent of the elderly are abused each year. And, as Americans live
longer, it is likely that an increasing number of elders will be abused
or exploited. A report by the National Conference of State Legislatures
predicts that by the year 2050, as many as one in five Americans could
be 65 years of age or older. A 1996 US Census Bureau report entitled
"65+ in the United States" indicated that there is presently a brief
window of opportunity for state and local policy makers to address the
oncoming challenge of the oncoming age wave. Unlike many states in this
country, the New York Penal Law does not specifically address crimes
involving adults.
In order to address this problem, the New York State District Attorneys
Association's Elder Abuse Subcommittee researched and recommended that
this bill be introduced in the legislature in its present form. These
amendments to Penal Law section 155.00 will enable prosecutors to charge
exploiters who knowingly and wrongfully take, obtain or withhold proper-
ty from a mentally incapacitated owner. Currently, criminal investi-
gations of offenders who steal from impaired seniors are often closed
for many of the same reasons that domestic violence and child abuse
cases do not result in unsuccessful prosecutions. Prosecutors are faced
with vulnerable victims who are fearful, isolated, confused and depen-
dant on the caregiver. The crimes are often committed at home or at the
bank, and usually do not involve many witnesses.
The victim's mental capacity may be questionable. They may be baffled by
their finances and have little or no memory of whether they signed
checks or documents or gave permission or authority to transfer funds.
Many of the victims suffer from mental impairments such as Alzheimer's
disease or senile dementia, which make them unable to consent to the
taking of property. Moreover, even if available, the victim's cognitive
impairment may make them incompetent to testify in court. Therefore, the
very reasons why a victim may be attractive to an exploiter may disqual-
ify him or her as a competent witness.
District Attorneys offices in New York City have experienced many cases
where seniors have been exploited by people that they trust. For exam-
ple, a few years ago a woman befriended an eighty-year old woman in her
thirties at a neighborhood coffee shop. They talked and the younger
woman agreed to meet the older woman at her residence. The younger woman
agreed to help the older woman clean her apartment and was soon running
errands for her including visiting the local ATM with the other woman's
bankcard. Within a few months the older woman's account was depleted.
When the police questioned the young woman, she admitted to using the
ATM card, but insisted that the older woman had given her the money and
several other large cash gifts. The older woman seemed surprised that
the other woman was holding her ATM card and was confused about whether
she had given the gifts or had made loans. According to neighbors, the
elderly woman's mental state had been deteriorating for some time. And,
although the victim's mental state was obvious to anyone who talked to
her for any length of time, and was confirmed by doctors, the case was
not prosecuted because of a void in the larceny statute.
PEOPLE V. CAMIOLA, 225 A.D.2d 380 (1st Dep't 1996) appeal denied 88 N.Y.
2d 877, (1996), addresses the issue of whether a theft can be estab-
lished against a person who is mentally impaired. In that case, there
was "overwhelming evidence" that the defendant, who prepared the elderly
and senile victim's tax returns, stole from her over a two-year period.
By the time of trial, the victim had passed away, and the defendant
testified that the stolen funds were a gift from the victim. The trial
court ruled that evidence relating to the victim's state at the time of
the transfer was relevant in determining whether she had the capacity to
consent to appropriation of her funds. The First Department's opinion in
CAMIOLA affirmed that a victim's mental capacity or lack thereof, while
not specifically an element of the larceny statute, should be assessed
in determining whether there was a wrongful taking of property.
This bill codifies CAMIOLA and further clarifies that the wrongful
taking, obtaining or withholding of property from a victim who is
mentally disabled or mentally incapacitated is a criminal act. Under
this bill, the wrongful taking would only be a crime if the defendant
did so with the requisite mental intent currently defined in section
155.05(1) of the Penal Law. Moreover, concerned caregivers and family
members who took steps to manage their elderly relatives and companions
affairs could continue to act in good faith, knowing that in order to
qualify as a crime, the taking of property must be wrongful, and would
not include conduct where the taker of the property was rendering
assistance which benefited the elderly owner. Accordingly, this bill
also amends section 155.15 which creates an affirmative defense applica-
ble to certain prosecutions under section 155.05 (2) (a) in which the
defendant obtained property in the course of rendering assistance which
benefited the impaired victim as long as the value of the property taken
was commensurate with the benefit conferred.
By correcting this void in the larceny statute, this bill will greatly
improve the ability of prosecutors to charge exploiters who prey on
impaired seniors and vulnerable individuals.
PRIOR LEGISLATIVE HISTORY:
6/18/98 - A.10218 referred to Assembly Rules Committee.
1/5/00 - A.3476 referred to Assembly Codes.
5/2/00 - S.810 referred to Senate Codes.
1/9/02 - A.2851 referred to Assembly Codes/S.3279 referred to Senate
Codes.
1/7/04 - A.2427 referred to Assembly Codes.
1/4/06 - A.1797 referred to Assembly Codes/S.702 referred to Senate
Codes.
1/3/07 - referred to Assembly Codes.
2/26/07 - S.951 (Maziarz) passed Senagte.
1/9/08 - referred to Assembly Codes, died in Assembly/returned to
Senate, referred to Senate Codes.
1/21/09 - A.2585/S.2150 (Maziarz), referred to Assembly Codes
2/19/09 - A.2585/S.2150 (Maziarz), referred to Senate Codes
1/6/10 - A.2585/S.2150 (Maziarz), referred to Assembly and Senate Codes
01/05/11 A.642/S.162 referred to Assembly, Senate codes.
01/04/12 A.642/S.162 referred ti Assembly, Senate codes.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the first of November
next after it shall have become law.
