Amd SS80.00 & 195.00, add SS195.01 & 195.02, Art 196 S196.00, Pen L; amd S200.50, CP L
Provides for the imposition of mandatory fine upon certain public officials convicted of a designated felony offense related to his or her official duties.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3629
SPONSOR: Abbate TITLE OF BILL: An act to amend the penal law, in relation to the
imposition of a mandatory fine upon certain public servants convicted of
a designated felony offense related to his or her official duties; and
to amend the penal law and the criminal procedure law, in relation to
the crime of official misconduct and to abuse of public trust crimes
PURPOSE: This bill increases the penalties imposed on any public serv-
ant who commits a crime in abuse of the public trust by using his or her
office to commit, facilitate or conceal criminal acts.
SUMMARY OF PROVISIONS: Section 1 of this bill amends Subdivision 1 of
Section 80.00 of the Penal Law to mandate that, in addition to any other
sanction, a fine be imposed upon any public servant who abuses the
public trust, the amount of which is based upon the gain received or
imparted by the guilty public servant.
Section 2 of this bill amends Section 195.00 of the Penal Law to rename
and reclassify the current crime of "Official Misconduct" as "Official
Misconduct in the Third Degree." A person convicted of violating this
Section will now be guilty of a Class E Felony rather than a Class A
Misdemeanor.
Section 3 of this bill adds two new Sections, 195.01 and 195.02, to the
Penal Law:
Section 195.01 of the Penal Law establishes the crime of "Official
Misconduct in the Second Degree," a Class D Felony. A public servant is
guilty of Official Misconduct in the Second Degree when he or she
commits the crime of Official Misconduct in the Third Degree and he or
she obtains any benefit or deprives another person of a benefit valued
in excess of $1,000.
Section 195.02 of the Penal Law establishes the crime of "Official
Misconduct in the First Degree," a Class C Felony. A public servant is
guilty of Official Misconduct in the First Degree when he or she commits
the crime of Official Misconduct in the Third Degree and he or she
obtains any benefit or deprives another person of a benefit valued in
excess of $3,000.
Section 4 of this bill creates a new Article 196 of the Penal Law,
titled "Abuse of Public Trust" Pursuant to this Article, if a public
servant commits a crime in abuse of public trust, by either inten-
tionally using his or her position as a public servant in a manner that
significantly facilitates the commission or concealment of a felony
offense, or by attempting, conspiring or soliciting another to commit
any felony, and in such attempt, conspiracy or solicitation inten-
tionally uses his or her position as a public servant to significantly
facilitate the commission or concealment of the offense, then the public
servant faces an enhanced punishment. Specifically, the level of felony
will be elevated one category higher than normally associated with the
specified offense the defendant committed for a Class C, D or E Felony,
and a defendant who is convicted of a Class A-I or B Felony will face
enhanced sentencing.
Sections 5 and 6 of this bill amend Subdivisions 4 and 7 of Section
200.50 of the Criminal Procedure Law with respect to the language that
must be included in an indictment charging a defendant with the crime of
abuse of public trust.
Section 7 of this bill provides for an effective date of the one-hundred
twentieth day after it shall, have become a law.
PRIOR LEGISLATIVE HISTORY:
S. 3185-B and A. 5049-B of 2011-2017
JUSTIFICATION: When public servants participate in criminal conduct
related to the performance of or the failure to perform their official
duties and responsibilities, they have exploited their office, thereby
diminishing the public's trust in government. Public servants who commit
a designated felony offense in order to secure financial advantage for
themselves or others should not be entitled to the benefits derived from
the abuse of public office and should suffer a financial penalty.
This bill provides for enhanced criminal penalties for any public serv-
ant who abuses his or her office by using such office to commit or to
facilitate the commission or concealment of a crime, and who thereby
violates the duty owed to the public and concomitantly undermines the
public's confidence in government.
Current law has proved to be woefully inadequate to deter and punish
those who misuse or abuse their public office for personal gain. The law
must be strengthened to reflect more clearly the gravity of these crimi-
nal breaches of the public trust, to punish such actions and to prevent
their recurrence. With this legislation, these goals are accomplished by
increasing the criminal penalties not only for official misconduct but
for any crime committed by a public servant who uses his or her official
status to further his or her personal interest at the expense of the
public's trust in the integrity of government.
The Comptroller urges passage of this legislation.
BUDGET IMPLICATIONS: This bill has no significant fiscal impact.
EFFECTIVE DATE: This bill would take effect on the one-hundred twenti-
eth day after it shall have become a law:
STATE OF NEW YORK
________________________________________________________________________
3629
2013-2014 Regular Sessions
IN ASSEMBLY
January 28, 2013
___________
Introduced by M. of A. ABBATE -- (at request of the State Comptroller)
-- read once and referred to the Committee on Governmental Employees
AN ACT to amend the penal law, in relation to the imposition of a manda-
tory fine upon certain public servants convicted of a designated felo-
ny offense related to his or her official duties; and to amend the
penal law and the criminal procedure law, in relation to the crime of
official misconduct and to abuse of public trust crimes
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 80.00 of the penal law, as
2 amended by chapter 338 of the laws of 1989, is amended to read as
3 follows:
4 1. A sentence to pay a fine for a felony shall be a sentence to pay an
5 amount, fixed by the court, not exceeding the higher of
6 a. five thousand dollars; or
7 b. double the amount of the defendant's gain from the commission of
8 the crime; or
9 c. if the conviction is for any felony defined in article two hundred
10 twenty or two hundred twenty-one of this chapter, according to the
11 following schedule:
12 (i) for A-I felonies, one hundred thousand dollars;
13 (ii) for A-II felonies, fifty thousand dollars;
14 (iii) for B felonies, thirty thousand dollars;
15 (iv) for C felonies, fifteen thousand dollars.
16 When imposing a fine pursuant to the provisions of this paragraph, the
17 court shall consider the profit gained by defendant's conduct, whether
18 the amount of the fine is disproportionate to the conduct in which
19 defendant engaged, its impact on any victims, and defendant's economic
20 circumstances, including the defendant's ability to pay, the effect of
21 the fine upon his or her immediate family or any other persons to whom
22 the defendant owes an obligation of support[.]; or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02569-01-3
A. 3629 2
1 d. for an abuse of public trust crime, as defined in section 196.00 of
2 this chapter, or any offense for which the offender's status as a public
3 servant constitutes an element of the offense as enumerated in paragraph
4 (b) of subdivision one of section 196.00 of this chapter, the court, in
5 addition to any other penalty which may be imposed pursuant to law,
6 shall impose a fine in accordance with the provisions of paragraph a or
7 b of this subdivision, whichever is greater.
8 § 2. Section 195.00 of the penal law, as amended by chapter 906 of the
9 laws of 1990, is amended to read as follows:
10 § 195.00 Official misconduct in the third degree.
11 A public servant is guilty of official misconduct in the third degree
12 when, with intent to obtain a benefit or deprive another person of a
13 benefit:
14 1. He or she commits an act relating to his or her office but consti-
15 tuting an unauthorized exercise of his or her official functions, know-
16 ing that such act is unauthorized; or
17 2. He or she knowingly refrains from performing a duty which is
18 imposed upon him or her by law or is clearly inherent in the nature of
19 his or her office.
20 Official misconduct in the third degree is a class [A misdemeanor] E
21 felony.
22 § 3. The penal law is amended by adding two new sections 195.01 and
23 195.02 to read as follows:
24 § 195.01 Official misconduct in the second degree.
25 A public servant is guilty of official misconduct in the second degree
26 when he or she commits the crime of official misconduct in the third
27 degree and he or she obtains any benefit or deprives another person of a
28 benefit valued in excess of one thousand dollars.
29 Official misconduct in the second degree is a class D felony.
30 § 195.02 Official misconduct in the first degree.
31 A public servant is guilty of official misconduct in the first degree
32 when he or she commits the crime of official misconduct in the third
33 degree and he or she obtains any benefit or deprives another person of a
34 benefit valued in excess of three thousand dollars.
35 Official misconduct in the first degree is a class C felony.
36 § 4. The penal law is amended by adding a new article 196 to read as
37 follows:
38 ARTICLE 196
39 ABUSE OF PUBLIC TRUST
40 Section 196.00 Abuse of public trust crime.
41 § 196.00 Abuse of public trust crime.
42 1. (a) A person commits an abuse of public trust crime when he or she
43 commits a felony offense and either:
44 (i) intentionally uses his or her position as a public servant in a
45 manner that significantly facilitates the commission or concealment of
46 the offense; or
47 (ii) attempts, conspires or solicits another to commit any felony, and
48 in such attempt, conspiracy or solicitation intentionally uses his or
49 her position as a public servant to significantly facilitate the commis-
50 sion or concealment of the offense.
51 (b) Notwithstanding paragraph (a) of this subdivision, an abuse of
52 public trust crime shall not include any offense for which the
53 offender's status as a public servant constitutes an element of the
54 offense, including, but not limited to, the following provisions of this
55 chapter: paragraph (g) of subdivision four of section 135.35 (labor
56 trafficking); subdivision eight of section 135.60 (coercion in the
A. 3629 3
1 second degree); paragraph (c) of subdivision two of section 135.65
2 (coercion in the first degree); paragraph (c) of subdivision two of
3 section 155.40 (grand larceny in the second degree); section 175.40
4 (issuing a false certificate); section 195.00 (official misconduct in
5 the third degree); section 195.01 (official misconduct in the second
6 degree); section 195.02 (official misconduct in the first degree);
7 section 200.10 (bribe receiving in the third degree); section 200.11
8 (bribe receiving in the second degree); section 200.12 (bribe receiving
9 in the first degree); section 200.25 (receiving reward for official
10 misconduct in the second degree); section 200.27 (receiving reward for
11 official misconduct in the first degree); section 200.35 (receiving
12 unlawful gratuities); section 200.50 (bribe receiving for public
13 office); paragraph (g) of subdivision five of section 230.34 (sex traf-
14 ficking); or any attempt or conspiracy to commit any of the foregoing
15 offenses.
16 2. When a person is convicted of an abuse of trust crime pursuant to
17 subdivision one of this section and the specified offense is a class C,
18 D or E felony, the crime shall be deemed to be one category higher than
19 the specified offense the defendant committed, or one category higher
20 than the offense level applicable to the defendant's conviction for an
21 attempt or conspiracy to commit a specified offense, whichever is appli-
22 cable.
23 3. Notwithstanding any other provision of law, when a person is
24 convicted of a crime pursuant to subdivision one of this section and the
25 specified offense is a class B felony:
26 (a) the maximum term of the indeterminate sentence must be at least
27 six years if the defendant is sentenced pursuant to section 70.00 of
28 this chapter;
29 (b) the term of the determinate sentence must be at least eight years
30 if the defendant is sentenced pursuant to section 70.02 of this chapter;
31 (c) the term of the determinate sentence must be at least twelve years
32 if the defendant is sentenced pursuant to section 70.04 of this chapter;
33 (d) the maximum term of the indeterminate sentence must be at least
34 four years if the defendant is sentenced pursuant to section 70.05 of
35 this chapter; and
36 (e) the maximum term of the indeterminate sentence or the term of the
37 determinate sentence must be at least ten years if the defendant is
38 sentenced pursuant to section 70.06 of this chapter.
39 4. Notwithstanding any other provision of law, when a person is
40 convicted of a crime pursuant to subdivision one of this section and the
41 specified offense is a class A-1 felony, the minimum period of the inde-
42 terminate sentence shall be not less than twenty years.
43 § 5. Subdivision 4 of section 200.50 of the criminal procedure law, as
44 amended by chapter 7 of the laws of 2007, is amended to read as follows:
45 4. A statement in each count that the grand jury, or, where the accu-
46 satory instrument is a superior court information, the district attor-
47 ney, accuses the defendant or defendants of a designated offense,
48 provided that in any prosecution under article four hundred eighty-five
49 of the penal law, the designated offense shall be the specified offense,
50 as defined in subdivision three of section 485.05 of the penal law,
51 followed by the phrase "as a hate crime", and provided further that in
52 any prosecution under section 490.25 of the penal law, the designated
53 offense shall be the specified offense, as defined in subdivision three
54 of section 490.05 of the penal law, followed by the phrase "as a crime
55 of terrorism"; and provided further that in any prosecution under
56 section 130.91 of the penal law, the designated offense shall be the
A. 3629 4
1 specified offense, as defined in subdivision two of section 130.91 of
2 the penal law, followed by the phrase "as a sexually motivated felony";
3 and provided further that in any prosecution under article one hundred
4 ninety-six of the penal law, the designated offense shall be the desig-
5 nated felony offense, as defined in subdivision two of section 196.00 of
6 the penal law, followed by the phrase "as an abuse of public trust
7 crime"; and
8 § 6. Subdivision 7 of section 200.50 of the criminal procedure law is
9 amended by adding a new paragraph (f) to read as follows:
10 (f) in the case of an abuse of public trust crime, as defined in
11 section 196.00 of the penal law, specifies, as applicable, that the
12 defendant or defendants committed, or attempted, conspired or solicited
13 another to commit, a felony and intentionally used his or her position
14 as a public servant in a manner that significantly facilitated the
15 commission or concealment of the offense; and
16 § 7. This act shall take effect on the one hundred twentieth day after
17 it shall have become a law.
