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 a mandatory fine upon certain public officials convicted of a designated felony offense related to his or her official duties.
STATE OF NEW YORK
________________________________________________________________________
3185--B
2011-2012 Regular Sessions
IN SENATE
February 11, 2011
___________
Introduced by Sens. GOLDEN, GRIFFO, BALL, KENNEDY, KRUEGER -- (at
request of the State Comptroller) -- read twice and ordered printed,
and when printed to be committed to the Committee on Civil Service and
Pensions -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- recommitted to the
Committee on Civil Service and Pensions in accordance with Senate Rule
6, sec. 8 -- committee discharged and said bill committed to the
Committee on Codes -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
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.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08618-06-2
S. 3185--B 2
1 When imposing a fine pursuant to the provisions of this paragraph, the
2 court shall consider the profit gained by defendant's conduct, whether
3 the amount of the fine is disproportionate to the conduct in which
4 defendant engaged, its impact on any victims, and defendant's economic
5 circumstances, including the defendant's ability to pay, the effect of
6 the fine upon his or her immediate family or any other persons to whom
7 the defendant owes an obligation of support[.]; or
8 d. for an abuse of public trust crime, as defined in section 196.00 of
9 this chapter, or any offense for which the offender's status as a public
10 servant constitutes an element of the offense as enumerated in paragraph
11 (b) of subdivision one of section 196.00 of this chapter, the court, in
12 addition to any other penalty which may be imposed pursuant to law,
13 shall impose a fine in accordance with the provisions of paragraph a or
14 b of this subdivision, whichever is greater.
15 § 2. Section 195.00 of the penal law, as amended by chapter 906 of the
16 laws of 1990, is amended to read as follows:
17 § 195.00 Official misconduct in the third degree.
18 A public servant is guilty of official misconduct in the third degree
19 when, with intent to obtain a benefit or deprive another person of a
20 benefit:
21 1. He or she commits an act relating to his or her office but consti-
22 tuting an unauthorized exercise of his or her official functions, know-
23 ing that such act is unauthorized; or
24 2. He or she knowingly refrains from performing a duty which is
25 imposed upon him or her by law or is clearly inherent in the nature of
26 his or her office.
27 Official misconduct in the third degree is a class [A misdemeanor] E
28 felony.
29 § 3. The penal law is amended by adding two new sections 195.01 and
30 195.02 to read as follows:
31 § 195.01 Official misconduct in the second degree.
32 A public servant is guilty of official misconduct in the second degree
33 when he or she commits the crime of official misconduct in the third
34 degree and he or she obtains any benefit or deprives another person of a
35 benefit valued in excess of one thousand dollars.
36 Official misconduct in the second degree is a class D felony.
37 § 195.02 Official misconduct in the first degree.
38 A public servant is guilty of official misconduct in the first degree
39 when he or she commits the crime of official misconduct in the third
40 degree and he or she obtains any benefit or deprives another person of a
41 benefit valued in excess of three thousand dollars.
42 Official misconduct in the first degree is a class C felony.
43 § 4. The penal law is amended by adding a new article 196 to read as
44 follows:
45 ARTICLE 196
46 ABUSE OF PUBLIC TRUST
47 Section 196.00 Abuse of public trust crime.
48 § 196.00 Abuse of public trust crime.
49 1. (a) A person commits an abuse of public trust crime when he or she
50 commits a felony offense and either:
51 (i) intentionally uses his or her position as a public servant in a
52 manner that significantly facilitates the commission or concealment of
53 the offense; or
54 (ii) attempts, conspires or solicits another to commit any felony, and
55 in such attempt, conspiracy or solicitation intentionally uses his or
S. 3185--B 3
1 her position as a public servant to significantly facilitate the commis-
2 sion or concealment of the offense.
3 (b) Notwithstanding paragraph (a) of this subdivision, an abuse of
4 public trust crime shall not include any offense for which the
5 offender's status as a public servant constitutes an element of the
6 offense, including, but not limited to, the following provisions of this
7 chapter: paragraph (g) of subdivision four of section 135.35 (labor
8 trafficking); subdivision eight of section 135.60 (coercion in the
9 second degree); paragraph (c) of subdivision two of section 135.65
10 (coercion in the first degree); paragraph (c) of subdivision two of
11 section 155.40 (grand larceny in the second degree); section 175.40
12 (issuing a false certificate); section 195.00 (official misconduct in
13 the third degree); section 195.01 (official misconduct in the second
14 degree); section 195.02 (official misconduct in the first degree);
15 section 200.10 (bribe receiving in the third degree); section 200.11
16 (bribe receiving in the second degree); section 200.12 (bribe receiving
17 in the first degree); section 200.25 (receiving reward for official
18 misconduct in the second degree); section 200.27 (receiving reward for
19 official misconduct in the first degree); section 200.35 (receiving
20 unlawful gratuities); section 200.50 (bribe receiving for public
21 office); paragraph (g) of subdivision five of section 230.34 (sex traf-
22 ficking); or any attempt or conspiracy to commit any of the foregoing
23 offenses.
24 2. When a person is convicted of an abuse of trust crime pursuant to
25 subdivision one of this section and the specified offense is a class C,
26 D or E felony, the crime shall be deemed to be one category higher than
27 the specified offense the defendant committed, or one category higher
28 than the offense level applicable to the defendant's conviction for an
29 attempt or conspiracy to commit a specified offense, whichever is appli-
30 cable.
31 3. Notwithstanding any other provision of law, when a person is
32 convicted of a crime pursuant to subdivision one of this section and the
33 specified offense is a class B felony:
34 (a) the maximum term of the indeterminate sentence must be at least
35 six years if the defendant is sentenced pursuant to section 70.00 of
36 this chapter;
37 (b) the term of the determinate sentence must be at least eight years
38 if the defendant is sentenced pursuant to section 70.02 of this chapter;
39 (c) the term of the determinate sentence must be at least twelve years
40 if the defendant is sentenced pursuant to section 70.04 of this chapter;
41 (d) the maximum term of the indeterminate sentence must be at least
42 four years if the defendant is sentenced pursuant to section 70.05 of
43 this chapter; and
44 (e) the maximum term of the indeterminate sentence or the term of the
45 determinate sentence must be at least ten years if the defendant is
46 sentenced pursuant to section 70.06 of this chapter.
47 4. Notwithstanding any other provision of law, when a person is
48 convicted of a crime pursuant to subdivision one of this section and the
49 specified offense is a class A-1 felony, the minimum period of the inde-
50 terminate sentence shall be not less than twenty years.
51 § 5. Subdivision 4 of section 200.50 of the criminal procedure law, as
52 amended by chapter 7 of the laws of 2007, is amended to read as follows:
53 4. A statement in each count that the grand jury, or, where the accu-
54 satory instrument is a superior court information, the district attor-
55 ney, accuses the defendant or defendants of a designated offense,
56 provided that in any prosecution under article four hundred eighty-five
S. 3185--B 4
1 of the penal law, the designated offense shall be the specified offense,
2 as defined in subdivision three of section 485.05 of the penal law,
3 followed by the phrase "as a hate crime", and provided further that in
4 any prosecution under section 490.25 of the penal law, the designated
5 offense shall be the specified offense, as defined in subdivision three
6 of section 490.05 of the penal law, followed by the phrase "as a crime
7 of terrorism"; and provided further that in any prosecution under
8 section 130.91 of the penal law, the designated offense shall be the
9 specified offense, as defined in subdivision two of section 130.91 of
10 the penal law, followed by the phrase "as a sexually motivated felony";
11 and provided further that in any prosecution under article one hundred
12 ninety-six of the penal law, the designated offense shall be the desig-
13 nated felony offense, as defined in subdivision two of section 196.00 of
14 the penal law, followed by the phrase "as an abuse of public trust
15 crime"; and
16 § 6. Subdivision 7 of section 200.50 of the criminal procedure law is
17 amended by adding a new paragraph (f) to read as follows:
18 (f) in the case of an abuse of public trust crime, as defined in
19 section 196.00 of the penal law, specifies, as applicable, that the
20 defendant or defendants committed, or attempted, conspired or solicited
21 another to commit, a felony and intentionally used his or her position
22 as a public servant in a manner that significantly facilitated the
23 commission or concealment of the offense; and
24 § 7. This act shall take effect on the one hundred twentieth day after
25 it shall have become a law.
