S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5243

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            February 13, 2015
                               ___________

Introduced  by  M.  of  A.  RODRIGUEZ  --  read once and referred to the
  Committee on Governmental Operations

AN ACT to amend the executive law, the penal law and the  state  finance
  law,   in   relation  to  minority  and  women-owned  businesses  post
  completion certification, duties of the director, the crime of  scheme
  to defraud and creating the minority and women-owned business fund

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The executive law is amended by adding a new section  314-a
to read as follows:
  S 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
WITH  THE  DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT AND THE
DEPARTMENT OF SMALL  BUSINESS  SERVICES,  SHALL  DEVELOP  THE  FOLLOWING
STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
  1.  CERTIFICATION  FROM  A REPRESENTATIVE OF THE PRIME CONTRACTOR THAT
THE MINORITY OR WOMEN-OWNED BUSINESS IN FACT PERFORMED THE  SERVICES  OR
PROVIDED  THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE;
AND
  2. CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR  WOMEN-OWNED
BUSINESS  THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED THE MATE-
RIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
  S 2. Paragraphs (f), (h) and (i) of subdivision 3 of  section  311  of
the  executive law, paragraph (f) as added by chapter 261 of the laws of
1988, paragraph (h) as amended and paragraph (i) as added by  section  1
of  part BB of chapter 59 of the laws of 2006, are amended and three new
paragraphs (j), (k) and (l) are added to read as follows:
  (f) to prepare and update periodically a directory of certified minor-
ity and women-owned business enterprises which shall, wherever practica-
ble, be divided into categories of labor, services, supplies, equipment,
materials and recognized construction trades and  which  shall  indicate

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07144-03-5
              

A. 5243                             2

areas  or locations of the state where such enterprises are available to
perform services, AND TO USE THIS  INFORMATION  TO  CREATE  AN  INTERNET
BASED,  SEARCHABLE, CENTRALIZED STATE REGISTRY DETAILING CERTIFICATIONS,
DENIALS, AND ALL DOCUMENTS SUBMITTED DURING THE LIFE OF THE CONTRACT;
  (h)  notwithstanding  the provisions of section two hundred ninety-six
of this chapter, to file a  complaint  pursuant  to  the  provisions  of
section  two hundred ninety-seven of this chapter where the director has
knowledge that a contractor may have violated the  provisions  of  para-
graph  (a), (b) or (c) of subdivision one of section two hundred ninety-
six of this chapter where  such  violation  is  unrelated,  separate  or
distinct from the state contract as expressed by its terms; [and]
  (i)  to  streamline  the state certification process to accept federal
and municipal corporation certifications[.];
  (J) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS'S PLACE
OF BUSINESS , WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE  OF
A WORKFORCE, EQUIPMENT AND SUPPLIES;
  (K)  TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR WOMEN-
OWNED BUSINESS'S FOR EVIDENCE OF FRAUD; AND
  (L) TO ENSURE THE PROTECTION OF INDIVIDUALS WHO REPORT  WRONGDOING  ON
THE PART OF A MINORITY OR WOMEN-OWNED BUSINESS.
  S 3. Section 190.60 of the penal law, as amended by chapter 491 of the
laws  of  1992,  subdivision  1 as amended by chapter 357 of the laws of
1996, is amended to read as follows:
S 190.60 Scheme to defraud in the [second] FIFTH degree.
  1. A person is guilty of a scheme to defraud  in  the  [second]  FIFTH
degree  when  he  engages  in a scheme constituting a systematic ongoing
course of conduct with intent to defraud more  than  one  person  or  to
obtain  property  from  more  than  one  person  by  false or fraudulent
pretenses, representations or promises, and so obtains property from one
or more of such persons.
  2. In any prosecution under this section, it  shall  be  necessary  to
prove  the  identity  of  at least one person from whom the defendant so
obtained property, but it shall not be necessary to prove  the  identity
of any other intended victim.
  Scheme  to defraud in the [second] FIFTH degree is a class A misdemea-
nor.
  S 4. Section 190.65 of the penal law, as amended by chapter 291 of the
laws of 2008, is amended to read as follows:
S 190.65 Scheme to defraud in the [first] FOURTH degree.
  1. A person is guilty of a scheme to defraud  in  the  [first]  FOURTH
degree when he or she: (a) engages in a scheme constituting a systematic
ongoing  course of conduct with intent to defraud ten or more persons or
to obtain property from ten or  more  persons  by  false  or  fraudulent
pretenses, representations or promises, and so obtains property from one
or  more  of  such  persons;  or  (b) engages in a scheme constituting a
systematic ongoing course of conduct with intent to  defraud  more  than
one  person  or to obtain property from more than one person by false or
fraudulent pretenses, representations or promises, and so obtains  prop-
erty  with  a  value  in excess of one thousand dollars from one or more
such persons; or (c) engages in a scheme constituting a systematic ongo-
ing course of conduct with intent to defraud more than one person,  more
than  one  of whom is a vulnerable elderly person as defined in subdivi-
sion three of section [260.30] 260.31 of this chapter or to obtain prop-
erty from more than one person, more than one of whom  is  a  vulnerable
elderly  person  as  defined  in  subdivision  three of section [260.30]
260.31 of this chapter, by false or  fraudulent  pretenses,  representa-

A. 5243                             3

tions  or  promises,  and  so  obtains  property  from  one or more such
persons.
  2.  In  any  prosecution  under this section, it shall be necessary to
prove the identity of at least one person from  whom  the  defendant  so
obtained  property,  but it shall not be necessary to prove the identity
of any other intended victim, provided that  in  any  prosecution  under
paragraph  (c) of subdivision one of this section, it shall be necessary
to prove the identity of at least one such vulnerable elderly person  as
defined in subdivision three of section [260.30] 260.31 of this chapter.
  Scheme to defraud in the [first] FOURTH degree is a class E felony.
  S  5.  The  penal  law is amended by adding three new sections 190.66,
190.67 and 190.68 to read as follows:
S 190.66 SCHEME TO DEFRAUD IN THE THIRD DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE THIRD DEGREE  WHEN
HE  OR  SHE:  (A)  ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD TWENTY-FIVE OR MORE PERSONS  OR
TO  OBTAIN PROPERTY FROM TWENTY-FIVE OR MORE PERSONS BY FALSE OR FRAUDU-
LENT PRETENSES, REPRESENTATIONS OR PROMISES,  AND  SO  OBTAINS  PROPERTY
FROM  ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME CONSTITUT-
ING A SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO  DEFRAUD  MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR  FRAUDULENT  PRETENSES,  REPRESENTATIONS  OR PROMISES, AND SO OBTAINS
PROPERTY WITH A VALUE IN EXCESS OF THREE THOUSAND DOLLARS  FROM  ONE  OR
MORE SUCH PERSONS.
  2.  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM  WHOM  THE  DEFENDANT  SO
OBTAINED  PROPERTY,  BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE THIRD DEGREE IS A CLASS D FELONY.
S 190.67 SCHEME TO DEFRAUD IN THE SECOND DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE SECOND DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING
COURSE  OF CONDUCT WITH INTENT TO DEFRAUD ONE HUNDRED OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE HUNDRED OR MORE PERSONS BY FALSE OR  FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY
FROM ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME  CONSTITUT-
ING  A  SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR FRAUDULENT PRETENSES, REPRESENTATIONS OR  PROMISES,  AND  SO  OBTAINS
PROPERTY  WITH  A  VALUE IN EXCESS OF FIFTY THOUSAND DOLLARS FROM ONE OR
MORE SUCH PERSONS.
  2. IN ANY PROSECUTION UNDER THIS SECTION, IT  SHALL  BE  NECESSARY  TO
PROVE  THE  IDENTITY  OF  AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO
OBTAINED PROPERTY, BUT IT SHALL NOT BE NECESSARY TO PROVE  THE  IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE SECOND DEGREE IS A CLASS C FELONY.
S 190.68 SCHEME TO DEFRAUD IN THE FIRST DEGREE.
  1.  A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FIRST DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD ONE THOUSAND OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE THOUSAND OR MORE PERSONS BY FALSE OR FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY
FROM ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME  CONSTITUT-
ING  A  SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR FRAUDULENT PRETENSES, REPRESENTATIONS OR  PROMISES,  AND  SO  OBTAINS

A. 5243                             4

PROPERTY  WITH A VALUE IN EXCESS OF ONE MILLION DOLLARS FROM ONE OR MORE
SUCH PERSONS.
  2.  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM  WHOM  THE  DEFENDANT  SO
OBTAINED  PROPERTY,  BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE FIRST DEGREE IS A CLASS B FELONY.
  S 6. Paragraph c of subdivision 1 of section 80.00 of the  penal  law,
as  amended  by  section  27 of subpart A of part H of chapter 55 of the
laws of 2014, is amended and a new paragraph  d  is  added  to  read  as
follows:
  c.  if the conviction is for any felony defined in article two hundred
twenty or two hundred twenty-one  of  this  chapter,  according  to  the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;
  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.
When  imposing  a fine pursuant to the provisions of this paragraph, the
court shall consider the profit gained by defendant's  conduct,  whether
the  amount  of  the  fine  is  disproportionate to the conduct in which
defendant engaged, its impact on any victims, and  defendant's  economic
circumstances,  including  the defendant's ability to pay, the effect of
the fine upon his or her immediate family or any other persons  to  whom
the defendant owes an obligation of support[.]; OR
  D.  IF  THE  CONVICTION  IS  FOR ANY FELONY DEFINED IN SECTION 190.65,
190.66, 190.67,  OR  190.68,  AND  THE  FRAUD  INVOLVES  A  MINORITY  OR
WOMEN-OWNED  BUSINESS,  DOUBLE  THE AMOUNT THAT SHOULD HAVE BEEN PAID TO
THE MINORITY OR WOMEN-OWNED BUSINESS FOR BONA  FIDE  WORK  OR  MATERIALS
UNDER THE CONTRACT.
  S  7. Section 80.00 of the penal law is amended by adding a new subdi-
vision 8 to read as follows:
  8. ALL MONEYS RECEIVED OR COLLECTED  IN  PAYMENT  OF  A  FINE  IMPOSED
PURSUANT  TO  PARAGRAPH  (D)  OF SUBDIVISION ONE OF THIS SECTION ARE THE
PROPERTY OF THE STATE AND THE STATE COMPTROLLER SHALL DEPOSIT  ALL  SUCH
FINES TO THE MINORITY AND WOMEN-OWNED BUSINESS FUND ESTABLISHED PURSUANT
TO SECTION NINETY-SEVEN-J OF THE STATE FINANCE LAW.
  S  8. The state finance law is amended by adding a new section 97-j to
read as follows:
  S 97-J. MINORITY AND WOMEN-OWNED BUSINESS FUND.  1.  THERE  IS  HEREBY
ESTABLISHED  IN  THE  JOINT  CUSTODY  OF  THE  STATE COMPTROLLER AND THE
COMMISSIONER OF TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN  AS  THE
"MINORITY AND WOMEN-OWNED BUSINESS FUND".
  2.  SUCH  FUNDS  SHALL CONSIST OF ALL FINES RECEIVED FROM ANY COURT OF
THE UNIFIED COURT SYSTEM PURSUANT TO THE PROVISIONS OF SUBDIVISION EIGHT
OF SECTION 80.00 OF THE PENAL LAW.
  3. MONIES OF THE FUND, WHEN ALLOCATED, SHALL BE DISBURSED  TO  ACQUIRE
SOFTWARE,  EMPLOY PERSONNEL TO AUDIT, INVESTIGATE AND PROSECUTE MINORITY
AND  WOMEN-OWNED  BUSINESS  FRAUD  AND  TO   UNDERWRITE   MINORITY   AND
WOMEN-OWNED  BUSINESS  PROGRAMS  TO  ASSIST  MINORITY AND WOMEN BUSINESS
OWNERS TO DEVELOP SUSTAINABLE BUSINESSES.
  S 9. This act shall take effect immediately, provided,  however,  that
the amendments to article 15-A of the executive law made by sections one
and  two of this act shall not affect the expiration of such article and
shall be deemed to expire therewith.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5243--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            February 13, 2015
                               ___________

Introduced  by  M.  of  A.  RODRIGUEZ  --  read once and referred to the
  Committee on Governmental Operations  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the executive law, the penal law and the  state  finance
  law,   in   relation  to  minority  and  women-owned  businesses  post
  completion certification, duties of the director, the crime of  scheme
  to defraud and creating the minority and women-owned business fund

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The executive law is amended by adding a new section  314-a
to read as follows:
  S 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
WITH  THE  DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT AND THE
DEPARTMENT OF SMALL  BUSINESS  SERVICES,  SHALL  DEVELOP  THE  FOLLOWING
STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
  1.  CERTIFICATION  FROM  A REPRESENTATIVE OF THE PRIME CONTRACTOR THAT
THE MINORITY OR WOMEN-OWNED BUSINESS IN FACT PERFORMED THE  SERVICES  OR
PROVIDED  THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE;
AND
  2. CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR  WOMEN-OWNED
BUSINESS  THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED THE MATE-
RIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
  S 2. Paragraphs (f), (h) and (i) of subdivision 3 of  section  311  of
the  executive law, paragraph (f) as added by chapter 261 of the laws of
1988, paragraph (h) as amended and paragraph (i) as added by  section  1
of  part BB of chapter 59 of the laws of 2006, are amended and three new
paragraphs (j), (k) and (l) are added to read as follows:
  (f) to prepare and update periodically a directory of certified minor-
ity and women-owned business enterprises which shall, wherever practica-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07144-06-5
              

A. 5243--A                          2

ble, be divided into categories of labor, services, supplies, equipment,
materials and recognized construction trades and  which  shall  indicate
areas  or locations of the state where such enterprises are available to
perform  services,  AND  TO  USE  THIS INFORMATION TO CREATE AN INTERNET
BASED, SEARCHABLE, CENTRALIZED STATE REGISTRY DETAILING  CERTIFICATIONS,
DENIALS, AND ALL DOCUMENTS SUBMITTED DURING THE LIFE OF THE CONTRACT;
  (h)  notwithstanding  the provisions of section two hundred ninety-six
of this chapter, to file a  complaint  pursuant  to  the  provisions  of
section  two hundred ninety-seven of this chapter where the director has
knowledge that a contractor may have violated the  provisions  of  para-
graph  (a), (b) or (c) of subdivision one of section two hundred ninety-
six of this chapter where  such  violation  is  unrelated,  separate  or
distinct from the state contract as expressed by its terms; [and]
  (i)  to  streamline  the state certification process to accept federal
and municipal corporation certifications[.];
  (J) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS'S PLACE
OF BUSINESS, WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE OF A
WORKFORCE, EQUIPMENT AND SUPPLIES;
  (K) TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR  WOMEN-
OWNED BUSINESSES FOR EVIDENCE OF FRAUD; AND
  (L)  TO  ENSURE THE PROTECTION OF INDIVIDUALS WHO REPORT WRONGDOING ON
THE PART OF A MINORITY OR WOMEN-OWNED BUSINESS.
  S 3. Section 190.60 of the penal law, as amended by chapter 491 of the
laws of 1992, subdivision 1 as amended by chapter 357  of  the  laws  of
1996, is amended to read as follows:
S 190.60 Scheme to defraud in the [second] FIFTH degree.
  1.  A  person  is  guilty of a scheme to defraud in the [second] FIFTH
degree when he engages in a scheme  constituting  a  systematic  ongoing
course  of  conduct  with  intent  to defraud more than one person or to
obtain property from  more  than  one  person  by  false  or  fraudulent
pretenses, representations or promises, and so obtains property from one
or more of such persons.
  2.  In  any  prosecution  under this section, it shall be necessary to
prove the identity of at least one person from  whom  the  defendant  so
obtained  property,  but it shall not be necessary to prove the identity
of any other intended victim.
  Scheme to defraud in the [second] FIFTH degree is a class A  misdemea-
nor.
  S 4. Section 190.65 of the penal law, as amended by chapter 291 of the
laws of 2008, is amended to read as follows:
S 190.65 Scheme to defraud in the [first] FOURTH degree.
  1.  A  person  is  guilty of a scheme to defraud in the [first] FOURTH
degree when he or she: (a) engages in a scheme constituting a systematic
ongoing course of conduct with intent to defraud ten or more persons  or
to  obtain  property  from  ten  or  more persons by false or fraudulent
pretenses, representations or promises, and so obtains property from one
or more of such persons; or (b)  engages  in  a  scheme  constituting  a
systematic  ongoing  course  of conduct with intent to defraud more than
one person or to obtain property from more than one person by  false  or
fraudulent  pretenses, representations or promises, and so obtains prop-
erty with a value in excess of one thousand dollars  from  one  or  more
such persons; or (c) engages in a scheme constituting a systematic ongo-
ing  course of conduct with intent to defraud more than one person, more
than one of whom is a vulnerable elderly person as defined  in  subdivi-
sion three of section [260.30] 260.31 of this chapter or to obtain prop-
erty  from  more  than one person, more than one of whom is a vulnerable

A. 5243--A                          3

elderly person as defined  in  subdivision  three  of  section  [260.30]
260.31  of  this  chapter, by false or fraudulent pretenses, representa-
tions or promises, and  so  obtains  property  from  one  or  more  such
persons.
  2.  In  any  prosecution  under this section, it shall be necessary to
prove the identity of at least one person from  whom  the  defendant  so
obtained  property,  but it shall not be necessary to prove the identity
of any other intended victim, provided that  in  any  prosecution  under
paragraph  (c) of subdivision one of this section, it shall be necessary
to prove the identity of at least one such vulnerable elderly person  as
defined in subdivision three of section [260.30] 260.31 of this chapter.
  Scheme to defraud in the [first] FOURTH degree is a class E felony.
  S  5.  The  penal  law is amended by adding three new sections 190.66,
190.67 and 190.68 to read as follows:
S 190.66 SCHEME TO DEFRAUD IN THE THIRD DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE THIRD DEGREE  WHEN
HE  OR  SHE:  (A)  ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD TWENTY-FIVE OR MORE PERSONS  OR
TO  OBTAIN PROPERTY FROM TWENTY-FIVE OR MORE PERSONS BY FALSE OR FRAUDU-
LENT PRETENSES, REPRESENTATIONS OR PROMISES,  AND  SO  OBTAINS  PROPERTY
FROM  ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME CONSTITUT-
ING A SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO  DEFRAUD  MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR  FRAUDULENT  PRETENSES,  REPRESENTATIONS  OR PROMISES, AND SO OBTAINS
PROPERTY WITH A VALUE IN EXCESS OF THREE THOUSAND DOLLARS  FROM  ONE  OR
MORE SUCH PERSONS.
  2.  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM  WHOM  THE  DEFENDANT  SO
OBTAINED  PROPERTY,  BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE THIRD DEGREE IS A CLASS D FELONY.
S 190.67 SCHEME TO DEFRAUD IN THE SECOND DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE SECOND DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING
COURSE  OF CONDUCT WITH INTENT TO DEFRAUD ONE HUNDRED OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE HUNDRED OR MORE PERSONS BY FALSE OR  FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY
FROM ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME  CONSTITUT-
ING  A  SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR FRAUDULENT PRETENSES, REPRESENTATIONS OR  PROMISES,  AND  SO  OBTAINS
PROPERTY  WITH  A  VALUE IN EXCESS OF FIFTY THOUSAND DOLLARS FROM ONE OR
MORE SUCH PERSONS.
  2. IN ANY PROSECUTION UNDER THIS SECTION, IT  SHALL  BE  NECESSARY  TO
PROVE  THE  IDENTITY  OF  AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO
OBTAINED PROPERTY, BUT IT SHALL NOT BE NECESSARY TO PROVE  THE  IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE SECOND DEGREE IS A CLASS C FELONY.
S 190.68 SCHEME TO DEFRAUD IN THE FIRST DEGREE.
  1.  A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FIRST DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD ONE THOUSAND OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE THOUSAND OR MORE PERSONS BY FALSE OR FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY
FROM ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME  CONSTITUT-
ING  A  SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE

A. 5243--A                          4

THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR FRAUDULENT PRETENSES, REPRESENTATIONS OR  PROMISES,  AND  SO  OBTAINS
PROPERTY  WITH A VALUE IN EXCESS OF ONE MILLION DOLLARS FROM ONE OR MORE
SUCH PERSONS.
  2.  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM  WHOM  THE  DEFENDANT  SO
OBTAINED  PROPERTY,  BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE FIRST DEGREE IS A CLASS B FELONY.
  S 6. Paragraph c of subdivision 1 of section 80.00 of the  penal  law,
as  amended  by  section  27 of subpart A of part H of chapter 55 of the
laws of 2014, is amended and a new paragraph  d  is  added  to  read  as
follows:
  c.  if the conviction is for any felony defined in article two hundred
twenty or two hundred twenty-one  of  this  chapter,  according  to  the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;
  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.
When  imposing  a fine pursuant to the provisions of this paragraph, the
court shall consider the profit gained by defendant's  conduct,  whether
the  amount  of  the  fine  is  disproportionate to the conduct in which
defendant engaged, its impact on any victims, and  defendant's  economic
circumstances,  including  the defendant's ability to pay, the effect of
the fine upon his or her immediate family or any other persons  to  whom
the defendant owes an obligation of support[.]; OR
  D.  IF  THE  CONVICTION  IS  FOR ANY FELONY DEFINED IN SECTION 190.65,
190.66, 190.67,  OR  190.68,  AND  THE  FRAUD  INVOLVES  A  MINORITY  OR
WOMEN-OWNED  BUSINESS,  DOUBLE  THE AMOUNT THAT SHOULD HAVE BEEN PAID TO
THE MINORITY OR WOMEN-OWNED BUSINESS FOR BONA  FIDE  WORK  OR  MATERIALS
UNDER THE CONTRACT.
  S  7. Section 80.00 of the penal law is amended by adding a new subdi-
vision 8 to read as follows:
  8. ALL MONEYS RECEIVED OR COLLECTED IN PAYMENT OF A FINE IMPOSED ON  A
DEFENDANT  CONVICTED OF A CRIME IN WHICH A MINORITY OR WOMEN-OWNED BUSI-
NESS DID NOT PROVIDE BONA FIDE SERVICES OR MATERIALS ARE THE PROPERTY OF
THE STATE AND THE STATE COMPTROLLER SHALL DEPOSIT ALL SUCH FINES TO  THE
MINORITY  AND  WOMEN-OWNED BUSINESS FUND ESTABLISHED PURSUANT TO SECTION
NINETY-SEVEN-J OF THE STATE FINANCE LAW.
  S 8. Section 80.10 of the penal  law,  subdivision  1  as  amended  by
section  28 of subpart A of part H of chapter 55 of the laws of 2014, is
amended to read as follows:
S 80.10 Fines for [corporations] NON-NATURAL PERSONS.
  1. In general. A sentence to pay a fine, when  imposed  on  a  [corpo-
ration] NON-NATURAL PERSON for an offense defined in this chapter or for
an offense defined outside this chapter for which no special [corporate]
fine  is  specified,  shall be a sentence to pay an amount, fixed by the
court, not exceeding:
  (a) [Ten] ONE HUNDRED thousand dollars, when the conviction  is  of  a
felony;
  (b)  Five thousand dollars, when the conviction is of a class A misde-
meanor or of an unclassified misdemeanor for which a term  of  imprison-
ment in excess of three months is authorized;

A. 5243--A                          5

  (c)  Two  thousand dollars, when the conviction is of a class B misde-
meanor or of an unclassified misdemeanor for which the  authorized  term
of imprisonment is not in excess of three months;
  (d) Five hundred dollars, when the conviction is of a violation;
  (e)  Any  higher amount not exceeding double the amount of the [corpo-
ration's] NON-NATURAL PERSON'S gain from the commission of  the  offense
or,  if  the  [corporation]  NON-NATURAL  PERSON is convicted of a crime
defined in article four hundred ninety-six of this chapter,  any  higher
amount  not exceeding three times the amount of the [corporation's] NON-
NATURAL PERSON'S gain from the commission of such offense.
  2. Exception. In the case of an offense defined outside this  chapter,
if  a special fine [for a corporation] is expressly specified in the law
or ordinance that defines the offense, the fine fixed by the court shall
be as follows:
  (a) An amount within the limits specified in the law or ordinance that
defines the offense; or
  (b) Any higher amount not exceeding double the amount of  the  [corpo-
ration's] NON-NATURAL PERSON'S gain from the commission of the offense.
  3.  Determination  of amount or value. When the court imposes the fine
authorized by paragraph (e) of  subdivision  one  or  paragraph  (b)  of
subdivision two OF THIS SECTION for any offense the provisions of subdi-
vision three of section 80.00 OF THIS ARTICLE shall be applicable to the
sentence.
  S  9. The state finance law is amended by adding a new section 97-j to
read as follows:
  S 97-J. MINORITY AND WOMEN-OWNED BUSINESS FUND.  1.  THERE  IS  HEREBY
ESTABLISHED  IN  THE  JOINT  CUSTODY  OF  THE  STATE COMPTROLLER AND THE
COMMISSIONER OF TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN  AS  THE
"MINORITY AND WOMEN-OWNED BUSINESS FUND".
  2.  SUCH  FUNDS  SHALL CONSIST OF ALL FINES RECEIVED FROM ANY COURT OF
THE UNIFIED COURT SYSTEM PURSUANT TO THE PROVISIONS OF SUBDIVISION EIGHT
OF SECTION 80.00 OF THE PENAL LAW.
  3. MONIES OF THE FUND, WHEN ALLOCATED, SHALL BE DISBURSED  TO  ACQUIRE
SOFTWARE,  EMPLOY PERSONNEL TO AUDIT, INVESTIGATE AND PROSECUTE MINORITY
AND  WOMEN-OWNED  BUSINESS  FRAUD  AND  TO   UNDERWRITE   MINORITY   AND
WOMEN-OWNED  BUSINESS  PROGRAMS  TO  ASSIST  MINORITY AND WOMEN BUSINESS
OWNERS TO DEVELOP SUSTAINABLE BUSINESSES.
  S 10. This act shall take effect immediately, provided, however,  that
the amendments to article 15-A of the executive law made by sections one
and  two of this act shall not affect the expiration of such article and
shall be deemed to expire therewith.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5243--B

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            February 13, 2015
                               ___________

Introduced  by  M.  of  A.  RODRIGUEZ  --  read once and referred to the
  Committee on Governmental Operations  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee -- again reported from said  committee  with  amendments,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  to amend the executive law, the penal law and the state finance
  law,  in  relation  to  minority  and  women-owned   businesses   post
  completion  certification, duties of the director, the crime of scheme
  to defraud and creating the minority and women-owned business fund

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. The executive law is amended by adding a new section 314-a
to read as follows:
  S 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
WITH THE DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT  AND  THE
DEPARTMENT  OF  SMALL  BUSINESS  SERVICES,  SHALL  DEVELOP THE FOLLOWING
STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
  1. CERTIFICATION FROM A REPRESENTATIVE OF THE  PRIME  CONTRACTOR  THAT
THE  MINORITY  OR WOMEN-OWNED BUSINESS IN FACT PERFORMED THE SERVICES OR
PROVIDED THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR  PROVIDE;
AND
  2.  CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR WOMEN-OWNED
BUSINESS THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED THE  MATE-
RIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
  S  2.  Paragraphs  (f), (h) and (i) of subdivision 3 of section 311 of
the executive law, paragraph (f) as added by chapter 261 of the laws  of
1988,  paragraph  (h) as amended and paragraph (i) as added by section 1
of part BB of chapter 59 of the laws of 2006, are amended and three  new
paragraphs (j), (k) and (l) are added to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07144-07-5

              

A. 5243--B                          2

  (f) to prepare and update periodically a directory of certified minor-
ity and women-owned business enterprises which shall, wherever practica-
ble, be divided into categories of labor, services, supplies, equipment,
materials  and  recognized  construction trades and which shall indicate
areas  or locations of the state where such enterprises are available to
perform services, AND TO USE THIS  INFORMATION  TO  CREATE  AN  INTERNET
BASED,  SEARCHABLE, CENTRALIZED STATE REGISTRY DETAILING CERTIFICATIONS,
DENIALS, AND ALL DOCUMENTS SUBMITTED DURING THE LIFE OF THE CONTRACT;
  (h) notwithstanding the provisions of section two  hundred  ninety-six
of  this  chapter,  to  file  a  complaint pursuant to the provisions of
section two hundred ninety-seven of this chapter where the director  has
knowledge  that  a  contractor may have violated the provisions of para-
graph (a), (b) or (c) of subdivision one of section two hundred  ninety-
six  of  this  chapter  where  such  violation is unrelated, separate or
distinct from the state contract as expressed by its terms; [and]
  (i) to streamline the state certification process  to  accept  federal
and municipal corporation certifications[.];
  (J) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS'S PLACE
OF BUSINESS, WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE OF A
WORKFORCE, EQUIPMENT AND SUPPLIES;
  (K)  TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR WOMEN-
OWNED BUSINESSES FOR EVIDENCE OF FRAUD; AND
  (L) TO ENSURE THE PROTECTION OF INDIVIDUALS WHO REPORT  WRONGDOING  ON
THE PART OF A MINORITY OR WOMEN-OWNED BUSINESS.
  S 3. Section 190.60 of the penal law, as amended by chapter 491 of the
laws  of  1992,  subdivision  1 as amended by chapter 357 of the laws of
1996, is amended to read as follows:
S 190.60 Scheme to defraud in the [second] FIFTH degree.
  1. A person is guilty of a scheme to defraud  in  the  [second]  FIFTH
degree  when  he  engages  in a scheme constituting a systematic ongoing
course of conduct with intent to defraud more  than  one  person  or  to
obtain  property  from  more  than  one  person  by  false or fraudulent
pretenses, representations or promises, and so obtains property from one
or more of such persons.
  2. In any prosecution under this section, it  shall  be  necessary  to
prove  the  identity  of  at least one person from whom the defendant so
obtained property, but it shall not be necessary to prove  the  identity
of any other intended victim.
  Scheme  to defraud in the [second] FIFTH degree is a class A misdemea-
nor.
  S 4. Section 190.65 of the penal law, as amended by chapter 291 of the
laws of 2008, is amended to read as follows:
S 190.65 Scheme to defraud in the [first] FOURTH degree.
  1. A person is guilty of a scheme to defraud  in  the  [first]  FOURTH
degree when he or she: (a) engages in a scheme constituting a systematic
ongoing  course of conduct with intent to defraud ten or more persons or
to obtain property from ten or  more  persons  by  false  or  fraudulent
pretenses, representations or promises, and so obtains property from one
or  more  of  such  persons;  or  (b) engages in a scheme constituting a
systematic ongoing course of conduct with intent to  defraud  more  than
one  person  or to obtain property from more than one person by false or
fraudulent pretenses, representations or promises, and so obtains  prop-
erty  with  a  value  in excess of one thousand dollars from one or more
such persons; or (c) engages in a scheme constituting a systematic ongo-
ing course of conduct with intent to defraud more than one person,  more
than  one  of whom is a vulnerable elderly person as defined in subdivi-

A. 5243--B                          3

sion three of section [260.30] 260.31 of this chapter or to obtain prop-
erty from more than one person, more than one of whom  is  a  vulnerable
elderly  person  as  defined  in  subdivision  three of section [260.30]
260.31  of  this  chapter, by false or fraudulent pretenses, representa-
tions or promises, and  so  obtains  property  from  one  or  more  such
persons.
  2.  In  any  prosecution  under this section, it shall be necessary to
prove the identity of at least one person from  whom  the  defendant  so
obtained  property,  but it shall not be necessary to prove the identity
of any other intended victim, provided that  in  any  prosecution  under
paragraph  (c) of subdivision one of this section, it shall be necessary
to prove the identity of at least one such vulnerable elderly person  as
defined in subdivision three of section [260.30] 260.31 of this chapter.
  Scheme to defraud in the [first] FOURTH degree is a class E felony.
  S  5.  The  penal  law is amended by adding three new sections 190.66,
190.67 and 190.68 to read as follows:
S 190.66 SCHEME TO DEFRAUD IN THE THIRD DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE THIRD DEGREE  WHEN
HE  OR  SHE:  (A)  ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD TWENTY-FIVE OR MORE PERSONS  OR
TO  OBTAIN PROPERTY FROM TWENTY-FIVE OR MORE PERSONS BY FALSE OR FRAUDU-
LENT PRETENSES, REPRESENTATIONS OR PROMISES,  AND  SO  OBTAINS  PROPERTY
FROM  ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME CONSTITUT-
ING A SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO  DEFRAUD  MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR  FRAUDULENT  PRETENSES,  REPRESENTATIONS  OR PROMISES, AND SO OBTAINS
PROPERTY WITH A VALUE IN EXCESS OF THREE THOUSAND DOLLARS  FROM  ONE  OR
MORE SUCH PERSONS.
  2.  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM  WHOM  THE  DEFENDANT  SO
OBTAINED  PROPERTY,  BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE THIRD DEGREE IS A CLASS D FELONY.
S 190.67 SCHEME TO DEFRAUD IN THE SECOND DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE SECOND DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING
COURSE  OF CONDUCT WITH INTENT TO DEFRAUD ONE HUNDRED OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE HUNDRED OR MORE PERSONS BY FALSE OR  FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY
FROM ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME  CONSTITUT-
ING  A  SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR FRAUDULENT PRETENSES, REPRESENTATIONS OR  PROMISES,  AND  SO  OBTAINS
PROPERTY  WITH  A  VALUE IN EXCESS OF FIFTY THOUSAND DOLLARS FROM ONE OR
MORE SUCH PERSONS.
  2. IN ANY PROSECUTION UNDER THIS SECTION, IT  SHALL  BE  NECESSARY  TO
PROVE  THE  IDENTITY  OF  AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO
OBTAINED PROPERTY, BUT IT SHALL NOT BE NECESSARY TO PROVE  THE  IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE SECOND DEGREE IS A CLASS C FELONY.
S 190.68 SCHEME TO DEFRAUD IN THE FIRST DEGREE.
  1.  A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FIRST DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD ONE THOUSAND OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE THOUSAND OR MORE PERSONS BY FALSE OR FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY

A. 5243--B                          4

FROM ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME  CONSTITUT-
ING  A  SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR  FRAUDULENT  PRETENSES,  REPRESENTATIONS  OR PROMISES, AND SO OBTAINS
PROPERTY WITH A VALUE IN EXCESS OF ONE MILLION DOLLARS FROM ONE OR  MORE
SUCH PERSONS.
  2.  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM  WHOM  THE  DEFENDANT  SO
OBTAINED  PROPERTY,  BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE FIRST DEGREE IS A CLASS B FELONY.
  S 6. Paragraphs a and c of subdivision 1 of section 80.00 of the penal
law, as amended by section 27 of subpart A of part H of  chapter  55  of
the  laws of 2014, are amended and a new paragraph d is added to read as
follows:
  a. [five] FIFTY thousand dollars; or
  c. if the conviction is for any felony defined in article two  hundred
twenty  or  two  hundred  twenty-one  of  this chapter, according to the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;
  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.
When imposing a fine pursuant to the provisions of this  paragraph,  the
court  shall  consider the profit gained by defendant's conduct, whether
the amount of the fine is  disproportionate  to  the  conduct  in  which
defendant  engaged,  its impact on any victims, and defendant's economic
circumstances, including the defendant's ability to pay, the  effect  of
the  fine  upon his or her immediate family or any other persons to whom
the defendant owes an obligation of support[.]; OR
  D. IF THE CONVICTION IS FOR ANY  FELONY  DEFINED  IN  SECTION  190.65,
190.66,  190.67,  OR  190.68,  AND  THE  FRAUD  INVOLVES  A  MINORITY OR
WOMEN-OWNED BUSINESS, DOUBLE THE AMOUNT THAT SHOULD HAVE  BEEN  PAID  TO
THE  MINORITY  OR  WOMEN-OWNED  BUSINESS FOR BONA FIDE WORK OR MATERIALS
UNDER THE CONTRACT.
  S 7. Section 80.00 of the penal law is amended by adding a new  subdi-
vision 8 to read as follows:
  8.  ALL  MONEYS RECEIVED OR COLLECTED IN PAYMENT OF A FINE IMPOSED OUT
OF THE MISUSE OF A MINORITY OR WOMEN-OWNED BUSINESS ARE THE PROPERTY  OF
THE  STATE AND THE STATE COMPTROLLER SHALL DEPOSIT ALL SUCH FINES TO THE
MINORITY AND WOMEN-OWNED BUSINESS FUND ESTABLISHED PURSUANT  TO  SECTION
NINETY-SEVEN-J OF THE STATE FINANCE LAW.
  S  8.  Subdivision  4 of section 80.00 of the penal law, as amended by
chapter 338 of the laws of 1989, is amended to read as follows:
  4. Exception. The provisions of this section  shall  not  apply  to  a
[corporation] NON-NATURAL PERSON.
  S  9.  Section  80.10  of  the  penal law, subdivision 1 as amended by
section 28 of subpart A of part H of chapter 55 of the laws of 2014,  is
amended to read as follows:
S 80.10 Fines for [corporations] NON-NATURAL PERSONS.
  1.  In  general.  A  sentence to pay a fine, when imposed on a [corpo-
ration] NON-NATURAL PERSON for an offense defined in this chapter or for
an offense defined outside this chapter for which no special [corporate]
fine is specified, shall be a sentence to pay an amount,  fixed  by  the
court, not exceeding:

A. 5243--B                          5

  (a)  [Ten]  ONE  HUNDRED thousand dollars, when the conviction is of a
felony;
  (b)  Five thousand dollars, when the conviction is of a class A misde-
meanor or of an unclassified misdemeanor for which a term  of  imprison-
ment in excess of three months is authorized;
  (c)  Two  thousand dollars, when the conviction is of a class B misde-
meanor or of an unclassified misdemeanor for which the  authorized  term
of imprisonment is not in excess of three months;
  (d) Five hundred dollars, when the conviction is of a violation;
  (e)  Any  higher amount not exceeding double the amount of the [corpo-
ration's] NON-NATURAL PERSON'S gain from the commission of  the  offense
or,  if  the  [corporation]  NON-NATURAL  PERSON is convicted of a crime
defined in article four hundred ninety-six of this chapter,  any  higher
amount  not exceeding three times the amount of the [corporation's] NON-
NATURAL PERSON'S gain from the commission of such offense.
  2. Exception. In the case of an offense defined outside this  chapter,
if  a special fine [for a corporation] is expressly specified in the law
or ordinance that defines the offense, the fine fixed by the court shall
be as follows:
  (a) An amount within the limits specified in the law or ordinance that
defines the offense; or
  (b) Any higher amount not exceeding double the amount of  the  [corpo-
ration's] NON-NATURAL PERSON'S gain from the commission of the offense.
  3.  Determination  of amount or value. When the court imposes the fine
authorized by paragraph (e) of  subdivision  one  or  paragraph  (b)  of
subdivision two OF THIS SECTION for any offense the provisions of subdi-
vision three of section 80.00 OF THIS ARTICLE shall be applicable to the
sentence.
  S 10. The state finance law is amended by adding a new section 97-j to
read as follows:
  S  97-J.  MINORITY  AND  WOMEN-OWNED BUSINESS FUND. 1. THERE IS HEREBY
ESTABLISHED IN THE JOINT  CUSTODY  OF  THE  STATE  COMPTROLLER  AND  THE
COMMISSIONER  OF  TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN AS THE
"MINORITY AND WOMEN-OWNED BUSINESS FUND".
  2. SUCH FUNDS SHALL CONSIST OF ALL FINES RECEIVED FROM  ANY  COURT  OF
THE UNIFIED COURT SYSTEM PURSUANT TO THE PROVISIONS OF SUBDIVISION EIGHT
OF SECTION 80.00 OF THE PENAL LAW.
  3.  MONIES  OF THE FUND, WHEN ALLOCATED, SHALL BE DISBURSED TO ACQUIRE
SOFTWARE, EMPLOY PERSONNEL TO AUDIT, INVESTIGATE AND PROSECUTE  MINORITY
AND   WOMEN-OWNED   BUSINESS   FRAUD  AND  TO  UNDERWRITE  MINORITY  AND
WOMEN-OWNED BUSINESS PROGRAMS TO  ASSIST  MINORITY  AND  WOMEN  BUSINESS
OWNERS TO DEVELOP SUSTAINABLE BUSINESSES.
  S  11. This act shall take effect immediately, provided, however, that
the amendments to article 15-A of the executive law made by sections one
and two of this act shall not affect the expiration of such article  and
shall be deemed to expire therewith.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5243--C

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            February 13, 2015
                               ___________

Introduced  by M. of A. RODRIGUEZ, CERETTO, MONTESANO, RICHARDSON, COOK,
  STECK, PEOPLES-STOKES -- read once and referred to  the  Committee  on
  Governmental Operations -- committee discharged, bill amended, ordered
  reprinted  as  amended  and  recommitted  to  said  committee -- again
  reported from said committee with  amendments,  ordered  reprinted  as
  amended  and  recommitted  to  said  committee  --  recommitted to the
  Committee on Governmental Operations in accordance with Assembly  Rule
  3,  sec. 2 -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee

AN ACT to amend the executive law, the penal law and the  state  finance
  law,   in   relation  to  minority  and  women-owned  businesses  post
  completion certification, duties of the director, the crime of  scheme
  to defraud and creating the minority and women-owned business fund

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The executive law is amended by adding a new section  314-a
to read as follows:
  S 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
WITH  THE  DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT AND THE
DEPARTMENT OF SMALL  BUSINESS  SERVICES,  SHALL  DEVELOP  THE  FOLLOWING
STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
  1.  CERTIFICATION  FROM  A REPRESENTATIVE OF THE PRIME CONTRACTOR THAT
THE MINORITY OR WOMEN-OWNED BUSINESS IN FACT PERFORMED THE  SERVICES  OR
PROVIDED  THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE;
AND
  2. CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR  WOMEN-OWNED
BUSINESS  THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED THE MATE-
RIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
  S 2. Paragraphs (f), (h) and (i) of subdivision 3 of  section  311  of
the  executive law, paragraph (f) as added by chapter 261 of the laws of

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07144-08-6
              

A. 5243--C                          2

1988, paragraph (h) as amended and paragraph (i) as added by  section  1
of  part BB of chapter 59 of the laws of 2006, are amended and three new
paragraphs (j), (k) and (l) are added to read as follows:
  (f) to prepare and update periodically a directory of certified minor-
ity and women-owned business enterprises which shall, wherever practica-
ble, be divided into categories of labor, services, supplies, equipment,
materials  and  recognized  construction trades and which shall indicate
areas or locations of the state where such enterprises are available  to
perform  services,  AND  TO  USE  THIS INFORMATION TO CREATE AN INTERNET
BASED, SEARCHABLE, CENTRALIZED STATE REGISTRY DETAILING  CERTIFICATIONS,
DENIALS, AND ALL DOCUMENTS SUBMITTED DURING THE LIFE OF THE CONTRACT;
  (h)  notwithstanding  the provisions of section two hundred ninety-six
of this chapter, to file a  complaint  pursuant  to  the  provisions  of
section  two hundred ninety-seven of this chapter where the director has
knowledge that a contractor may have violated the  provisions  of  para-
graph  (a), (b) or (c) of subdivision one of section two hundred ninety-
six of this chapter where  such  violation  is  unrelated,  separate  or
distinct from the state contract as expressed by its terms; [and]
  (i)  to  streamline  the state certification process to accept federal
and municipal corporation certifications[.];
  (J) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS'S PLACE
OF BUSINESS, WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE OF A
WORKFORCE, EQUIPMENT AND SUPPLIES;
  (K) TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR  WOMEN-
OWNED BUSINESSES FOR EVIDENCE OF FRAUD; AND
  (L)  TO  ENSURE THE PROTECTION OF INDIVIDUALS WHO REPORT WRONGDOING ON
THE PART OF A MINORITY OR WOMEN-OWNED BUSINESS.
  S 3. Section 190.60 of the penal law, as amended by chapter 491 of the
laws of 1992, subdivision 1 as amended by chapter 357  of  the  laws  of
1996, is amended to read as follows:
S 190.60 Scheme to defraud in the [second] FIFTH degree.
  1.  A  person  is  guilty of a scheme to defraud in the [second] FIFTH
degree when he engages in a scheme  constituting  a  systematic  ongoing
course  of  conduct  with  intent  to defraud more than one person or to
obtain property from  more  than  one  person  by  false  or  fraudulent
pretenses, representations or promises, and so obtains property from one
or more of such persons.
  2.  In  any  prosecution  under this section, it shall be necessary to
prove the identity of at least one person from  whom  the  defendant  so
obtained  property,  but it shall not be necessary to prove the identity
of any other intended victim.
  Scheme to defraud in the [second] FIFTH degree is a class A  misdemea-
nor.
  S 4. Section 190.65 of the penal law, as amended by chapter 291 of the
laws of 2008, is amended to read as follows:
S 190.65 Scheme to defraud in the [first] FOURTH degree.
  1.  A  person  is  guilty of a scheme to defraud in the [first] FOURTH
degree when he or she: (a) engages in a scheme constituting a systematic
ongoing course of conduct with intent to defraud ten or more persons  or
to  obtain  property  from  ten  or  more persons by false or fraudulent
pretenses, representations or promises, and so obtains property from one
or more of such persons; or (b)  engages  in  a  scheme  constituting  a
systematic  ongoing  course  of conduct with intent to defraud more than
one person or to obtain property from more than one person by  false  or
fraudulent  pretenses, representations or promises, and so obtains prop-
erty with a value in excess of one thousand dollars  from  one  or  more

A. 5243--C                          3

such persons; or (c) engages in a scheme constituting a systematic ongo-
ing  course of conduct with intent to defraud more than one person, more
than one of whom is a vulnerable elderly person as defined  in  subdivi-
sion three of section [260.30] 260.31 of this chapter or to obtain prop-
erty  from  more  than one person, more than one of whom is a vulnerable
elderly person as defined  in  subdivision  three  of  section  [260.30]
260.31  of  this  chapter, by false or fraudulent pretenses, representa-
tions or promises, and  so  obtains  property  from  one  or  more  such
persons.
  2.  In  any  prosecution  under this section, it shall be necessary to
prove the identity of at least one person from  whom  the  defendant  so
obtained  property,  but it shall not be necessary to prove the identity
of any other intended victim, provided that  in  any  prosecution  under
paragraph  (c) of subdivision one of this section, it shall be necessary
to prove the identity of at least one such vulnerable elderly person  as
defined in subdivision three of section [260.30] 260.31 of this chapter.
  Scheme to defraud in the [first] FOURTH degree is a class E felony.
  S  5.  The  penal  law  is amended by adding four new sections 190.66,
190.67, 190.68 and 190.69 to read as follows:
S 190.66 SCHEME TO DEFRAUD IN THE THIRD DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE THIRD DEGREE  WHEN
HE  OR  SHE:  (A)  ENGAGES IN A SCHEME CONSTITUTING A SYSTEMATIC ONGOING
COURSE OF CONDUCT WITH INTENT TO DEFRAUD TWENTY-FIVE OR MORE PERSONS  OR
TO  OBTAIN PROPERTY FROM TWENTY-FIVE OR MORE PERSONS BY FALSE OR FRAUDU-
LENT PRETENSES, REPRESENTATIONS OR PROMISES,  AND  SO  OBTAINS  PROPERTY
FROM  ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME CONSTITUT-
ING A SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO  DEFRAUD  MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR  FRAUDULENT  PRETENSES,  REPRESENTATIONS  OR PROMISES, AND SO OBTAINS
PROPERTY WITH A VALUE IN EXCESS OF THREE THOUSAND DOLLARS  FROM  ONE  OR
MORE SUCH PERSONS.
  2.  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM  WHOM  THE  DEFENDANT  SO
OBTAINED  PROPERTY,  BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE THIRD DEGREE IS A CLASS D FELONY.
S 190.67 SCHEME TO DEFRAUD IN THE SECOND DEGREE.
  1. A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE SECOND DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING
COURSE  OF CONDUCT WITH INTENT TO DEFRAUD ONE HUNDRED OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE HUNDRED OR MORE PERSONS BY FALSE OR  FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY
FROM ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME  CONSTITUT-
ING  A  SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO DEFRAUD MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR FRAUDULENT PRETENSES, REPRESENTATIONS OR  PROMISES,  AND  SO  OBTAINS
PROPERTY  WITH  A  VALUE IN EXCESS OF FIFTY THOUSAND DOLLARS FROM ONE OR
MORE SUCH PERSONS.
  2. IN ANY PROSECUTION UNDER THIS SECTION, IT  SHALL  BE  NECESSARY  TO
PROVE  THE  IDENTITY  OF  AT LEAST ONE PERSON FROM WHOM THE DEFENDANT SO
OBTAINED PROPERTY, BUT IT SHALL NOT BE NECESSARY TO PROVE  THE  IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE SECOND DEGREE IS A CLASS C FELONY.
S 190.68 SCHEME TO DEFRAUD IN THE FIRST DEGREE.
  1.  A PERSON IS GUILTY OF A SCHEME TO DEFRAUD IN THE FIRST DEGREE WHEN
HE OR SHE: (A) ENGAGES IN A SCHEME  CONSTITUTING  A  SYSTEMATIC  ONGOING

A. 5243--C                          4

COURSE OF CONDUCT WITH INTENT TO DEFRAUD ONE THOUSAND OR MORE PERSONS OR
TO OBTAIN PROPERTY FROM ONE THOUSAND OR MORE PERSONS BY FALSE OR FRAUDU-
LENT  PRETENSES,  REPRESENTATIONS  OR  PROMISES, AND SO OBTAINS PROPERTY
FROM  ONE OR MORE OF SUCH PERSONS; OR (B) ENGAGES IN A SCHEME CONSTITUT-
ING A SYSTEMATIC ONGOING COURSE OF CONDUCT WITH INTENT TO  DEFRAUD  MORE
THAN ONE PERSON OR TO OBTAIN PROPERTY FROM MORE THAN ONE PERSON BY FALSE
OR  FRAUDULENT  PRETENSES,  REPRESENTATIONS  OR PROMISES, AND SO OBTAINS
PROPERTY WITH A VALUE IN EXCESS OF ONE MILLION DOLLARS FROM ONE OR  MORE
SUCH PERSONS.
  2.  IN  ANY  PROSECUTION  UNDER THIS SECTION, IT SHALL BE NECESSARY TO
PROVE THE IDENTITY OF AT LEAST ONE PERSON FROM  WHOM  THE  DEFENDANT  SO
OBTAINED  PROPERTY,  BUT IT SHALL NOT BE NECESSARY TO PROVE THE IDENTITY
OF ANY OTHER INTENDED VICTIM.
  SCHEME TO DEFRAUD IN THE FIRST DEGREE IS A CLASS B FELONY.
S 190.69 THREE CONVICTIONS FOR SCHEME TO DEFRAUD BY AN OSTENSIBLE MINOR-
           ITY OR WOMEN-OWNED BUSINESS.
  UPON THREE CONVICTIONS FOR ANY  OFFENSE  DEFINED  IN  SECTION  190.60,
190.65,  190.66,  190.67,  OR 190.68 INVOLVING A MINORITY OR WOMEN-OWNED
BUSINESS, AN INDIVIDUAL SHALL BE BARRED FROM  DOING  BUSINESS  WITH  THE
STATE.
  S 6. Paragraphs a and c of subdivision 1 of section 80.00 of the penal
law,  as  amended  by section 27 of subpart A of part H of chapter 55 of
the laws of 2014, are amended and a new paragraph d is added to read  as
follows:
  a. [five] FIFTY thousand dollars; or
  c.  if the conviction is for any felony defined in article two hundred
twenty or two hundred twenty-one  of  this  chapter,  according  to  the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;
  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.
When  imposing  a fine pursuant to the provisions of this paragraph, the
court shall consider the profit gained by defendant's  conduct,  whether
the  amount  of  the  fine  is  disproportionate to the conduct in which
defendant engaged, its impact on any victims, and  defendant's  economic
circumstances,  including  the defendant's ability to pay, the effect of
the fine upon his or her immediate family or any other persons  to  whom
the defendant owes an obligation of support[.]; OR
  D.  IF  THE  CONVICTION  IS  FOR ANY FELONY DEFINED IN SECTION 190.65,
190.66, 190.67,  OR  190.68,  AND  THE  FRAUD  INVOLVES  A  MINORITY  OR
WOMEN-OWNED  BUSINESS,  DOUBLE  THE AMOUNT THAT SHOULD HAVE BEEN PAID TO
THE MINORITY OR WOMEN-OWNED BUSINESS FOR BONA  FIDE  WORK  OR  MATERIALS
UNDER THE CONTRACT.
  S  7. Section 80.00 of the penal law is amended by adding a new subdi-
vision 8 to read as follows:
  8. ALL MONEYS RECEIVED OR COLLECTED IN PAYMENT OF A FINE  IMPOSED  OUT
OF  THE MISUSE OF A MINORITY OR WOMEN-OWNED BUSINESS ARE THE PROPERTY OF
THE STATE AND THE STATE COMPTROLLER SHALL DEPOSIT ALL SUCH FINES TO  THE
MINORITY  AND  WOMEN-OWNED BUSINESS FUND ESTABLISHED PURSUANT TO SECTION
NINETY-SEVEN-J OF THE STATE FINANCE LAW.
  S 8. Subdivision 4 of section 80.00 of the penal law,  as  amended  by
chapter 338 of the laws of 1989, is amended to read as follows:
  4.  Exception.  The  provisions  of  this section shall not apply to a
[corporation] NON-NATURAL PERSON.

A. 5243--C                          5

  S 9. Section 80.10 of the penal  law,  subdivision  1  as  amended  by
section  28 of subpart A of part H of chapter 55 of the laws of 2014, is
amended to read as follows:
S 80.10 Fines for [corporations] NON-NATURAL PERSONS.
  1.  In  general.  A  sentence to pay a fine, when imposed on a [corpo-
ration] NON-NATURAL PERSON for an offense defined in this chapter or for
an offense defined outside this chapter for which no special [corporate]
fine is specified, shall be a sentence to pay an amount,  fixed  by  the
court, not exceeding:
  (a)  [Ten]  ONE  HUNDRED thousand dollars, when the conviction is of a
felony;
  (b) Five thousand dollars, when the conviction is of a class A  misde-
meanor  or  of an unclassified misdemeanor for which a term of imprison-
ment in excess of three months is authorized;
  (c) Two thousand dollars, when the conviction is of a class  B  misde-
meanor  or  of an unclassified misdemeanor for which the authorized term
of imprisonment is not in excess of three months;
  (d) Five hundred dollars, when the conviction is of a violation;
  (e) Any higher amount not exceeding double the amount of  the  [corpo-
ration's]  NON-NATURAL  PERSON'S gain from the commission of the offense
or, if the [corporation] NON-NATURAL PERSON  is  convicted  of  a  crime
defined  in  article four hundred ninety-six of this chapter, any higher
amount not exceeding three times the amount of the [corporation's]  NON-
NATURAL PERSON'S gain from the commission of such offense.
  2.  Exception. In the case of an offense defined outside this chapter,
if a special fine [for a corporation] is expressly specified in the  law
or ordinance that defines the offense, the fine fixed by the court shall
be as follows:
  (a) An amount within the limits specified in the law or ordinance that
defines the offense; or
  (b)  Any  higher amount not exceeding double the amount of the [corpo-
ration's] NON-NATURAL PERSON'S gain from the commission of the offense.
  3. Determination of amount or value. When the court imposes  the  fine
authorized  by  paragraph  (e)  of  subdivision  one or paragraph (b) of
subdivision two OF THIS SECTION for any offense the provisions of subdi-
vision three of section 80.00 OF THIS ARTICLE shall be applicable to the
sentence.
  S 10. The state finance law is amended by adding a new section 97-j to
read as follows:
  S 97-J. MINORITY AND WOMEN-OWNED BUSINESS FUND.  1.  THERE  IS  HEREBY
ESTABLISHED  IN  THE  JOINT  CUSTODY  OF  THE  STATE COMPTROLLER AND THE
COMMISSIONER OF TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN  AS  THE
"MINORITY AND WOMEN-OWNED BUSINESS FUND".
  2.  SUCH  FUNDS  SHALL CONSIST OF ALL FINES RECEIVED FROM ANY COURT OF
THE UNIFIED COURT SYSTEM PURSUANT TO THE PROVISIONS OF SUBDIVISION EIGHT
OF SECTION 80.00 OF THE PENAL LAW.
  3. MONIES OF THE FUND, WHEN ALLOCATED, SHALL BE DISBURSED  TO  ACQUIRE
SOFTWARE,  EMPLOY PERSONNEL TO AUDIT, INVESTIGATE AND PROSECUTE MINORITY
AND  WOMEN-OWNED  BUSINESS  FRAUD  AND  TO   UNDERWRITE   MINORITY   AND
WOMEN-OWNED  BUSINESS  PROGRAMS  TO  ASSIST  MINORITY AND WOMEN BUSINESS
OWNERS TO DEVELOP SUSTAINABLE BUSINESSES.
  S 11. Section 316 of the executive law, as amended by chapter  175  of
the laws of 2010, is amended to read as follows:
  S 316. Enforcement.  1. Upon receipt by the director of a complaint by
a contracting agency that a contractor has violated the provisions of  a
state contract which have been included to comply with the provisions of

A. 5243--C                          6

this  article  or of a contractor that a contracting agency has violated
such provisions or has failed or refused to issue a waiver where one has
been applied for pursuant to subdivision six of  section  three  hundred
thirteen  of  this  article or has denied such application, the director
shall attempt to resolve the matter giving rise to  such  complaint.  If
efforts  to  resolve  such matter to the satisfaction of all parties are
unsuccessful, the director shall refer the matter, within thirty days of
the receipt of the complaint, to the division's hearing  officers.  Upon
conclusion  of  the  administrative  hearing,  the hearing officer shall
submit to the  director  his  or  her  decision  regarding  the  alleged
violation  of  the contract and recommendations regarding the imposition
of sanctions, fines or penalties.  The  director,  within  ten  days  of
receipt  of  the decision, shall file a determination of such matter and
shall cause a copy of such determination along with a copy of this arti-
cle to be served upon the contractor by personal service or by certified
mail return receipt requested. The decision of the hearing officer shall
be final and may only be vacated or  modified  as  provided  in  article
seventy-eight  of  the  civil practice law and rules upon an application
made within the time provided by such article. The determination of  the
director as to the imposition of any fines, sanctions or penalties shall
be  reviewable  pursuant  to article seventy-eight of the civil practice
law and rules. The penalties imposed for any violation which is premised
upon  either  a  fraudulent  or  intentional  misrepresentation  by  the
contractor  or the contractor's willful and intentional disregard of the
minority and  women-owned  participation  requirement  included  in  the
contract may include a determination that the contractor shall be ineli-
gible  to  submit a bid to any contracting agency or be awarded any such
contract for a period not to exceed one year following the final  deter-
mination;  provided  however, if a contractor has previously been deter-
mined to be ineligible to submit a bid pursuant  to  this  section,  the
penalties imposed for any subsequent violation, if such violation occurs
within  five  years  of the first violation, may include a determination
that the contractor shall be ineligible to submit a bid to any contract-
ing agency or be awarded any such contract for a period  not  to  exceed
five  years  following the final determination. The division of minority
and women's business development shall maintain a  website  listing  all
contractors that have been deemed ineligible to submit a bid pursuant to
this  section  and the date after which each contractor shall once again
become eligible to submit bids.
  2. THE COMPTROLLER SHALL, FROM TIME TO TIME  BUT  AT  LEAST  ANNUALLY,
CONDUCT AN AUDIT OF EVERY MINORITY AND WOMEN-OWNED BUSINESSES.
  S  12. This act shall take effect immediately, provided, however, that
the amendments to article 15-A of the executive  law  made  by  sections
one,  two and eleven of this act shall not affect the expiration of such
article and shall be deemed to expire therewith.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5243--D

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            February 13, 2015
                               ___________

Introduced  by M. of A. RODRIGUEZ, CERETTO, MONTESANO, RICHARDSON, COOK,
  STECK, PEOPLES-STOKES,  BLAKE,  HUNTER,  HYNDMAN,  BARRON,  HOOPER  --
  Multi-Sponsored  by  --  M.  of  A.  ROBINSON,  SIMON -- read once and
  referred to the Committee  on  Governmental  Operations  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said  committee  -- again reported from said committee with amend-
  ments, ordered reprinted as amended and recommitted to said  committee
  --  recommitted to the Committee on Governmental Operations in accord-
  ance with Assembly Rule  3,  sec.  2  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee -- again reported from said  committee  with  amendments,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  to amend the executive law, the penal law and the state finance
  law, in relation to minority and women-owned business enterprises post
  completion certification, duties of  the  director  and  creating  the
  minority and women-owned business enterprise fund

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The executive law is amended by adding a new section  314-a
to read as follows:
  S 314-A. POST COMPLETION CERTIFICATION. THE DIRECTOR, IN COLLABORATION
WITH  THE  DIVISION OF MINORITY AND WOMEN'S BUSINESS DEVELOPMENT AND THE
DEPARTMENT OF SMALL  BUSINESS  SERVICES,  SHALL  DEVELOP  THE  FOLLOWING
STANDARDIZED CERTIFICATION FORMS THAT MUST BE COMPLETED UNDER PENALTY OF
PERJURY PRIOR TO THE PRIME CONTRACTOR BEING PAID:
  1.  CERTIFICATION  FROM  A REPRESENTATIVE OF THE PRIME CONTRACTOR THAT
THE MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISE IN  FACT  PERFORMED  THE
SERVICES  OR PROVIDED THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM
OR PROVIDE; AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07144-10-6

A. 5243--D                          2
              

  2. CERTIFICATION FROM A REPRESENTATIVE OF THE MINORITY OR  WOMEN-OWNED
BUSINESS ENTERPRISE THAT THEY IN FACT PERFORMED THE SERVICES OR PROVIDED
THE MATERIALS THAT THEY WERE CONTRACTED TO PERFORM OR PROVIDE.
  S  2.  Paragraphs  (f), (h) and (i) of subdivision 3 of section 311 of
the executive law, paragraph (f) as added by chapter 261 of the laws  of
1988,  paragraph  (h) as amended and paragraph (i) as added by section 1
of part BB of chapter 59 of the laws of 2006, are amended and three  new
paragraphs (j), (k) and (l) are added to read as follows:
  (f) to prepare and update periodically a directory of certified minor-
ity and women-owned business enterprises which shall, wherever practica-
ble, be divided into categories of labor, services, supplies, equipment,
materials  and  recognized  construction trades and which shall indicate
areas or locations of the state where such enterprises are available  to
perform  services,  AND  TO  USE  THIS INFORMATION TO CREATE AN INTERNET
BASED, SEARCHABLE, CENTRALIZED STATE REGISTRY DETAILING  CERTIFICATIONS,
DENIALS,  WAIVERS  AND  ALL  DOCUMENTS  SUBMITTED DURING THE LIFE OF THE
CONTRACT;
  (h) notwithstanding the provisions of section two  hundred  ninety-six
of  this  chapter,  to  file  a  complaint pursuant to the provisions of
section two hundred ninety-seven of this chapter where the director  has
knowledge  that  a  contractor may have violated the provisions of para-
graph (a), (b) or (c) of subdivision one of section two hundred  ninety-
six  of  this  chapter  where  such  violation is unrelated, separate or
distinct from the state contract as expressed by its terms; [and]
  (i) to streamline the state certification process  to  accept  federal
and municipal corporation certifications[.];
  (J) TO PERFORM INSPECTIONS OF MINORITY OR WOMEN-OWNED BUSINESS'S PLACE
OF BUSINESS, WAREHOUSE OR STORAGE FACILITY TO CONFIRM THE EXISTENCE OF A
WORKFORCE, EQUIPMENT AND SUPPLIES;
  (K)  TO PERFORM INSPECTIONS OF FINANCIAL RECORDS OF MINORITY OR WOMEN-
OWNED BUSINESS ENTERPRISES TO ENSURE SUCH ENTERPRISES ARE IN  COMPLIANCE
WITH APPLICABLE LAWS; AND
  (L)  TO  ENSURE  THE  PROTECTION  OF  INDIVIDUALS WHO REPORT SUSPECTED
VIOLATIONS OF THIS ARTICLE AND APPLICABLE LAWS RELATED TO  MINORITY  AND
WOMEN-OWNED BUSINESS ENTERPRISES.
  S  3.  Subdivision  1 of section 314 of the executive law, as added by
chapter 261 of the laws of 1988, is amended to read as follows:
  1. The director shall promulgate rules and regulations  providing  for
the  establishment  of a statewide certification program including rules
and regulations governing the approval, denial or revocation of any such
certification, INCLUDING REVOCATIONS FOR FELONY CONVICTIONS FOR  FRAUDU-
LENTLY  MISREPRESENTING  THE  STATUS OF MINORITY OR WOMEN-OWNED BUSINESS
ENTERPRISES.   Such rules and regulations  shall  include,  but  not  be
limited  to,  such  matters as may be required to ensure that the estab-
lished procedures thereunder shall at least be in  compliance  with  the
code  of  fair procedure set forth in section seventy-three of the civil
rights law, AND CONSISTENT WITH THE PROVISIONS OF ARTICLE TWENTY-THREE-A
OF THE CORRECTION LAW.
  S 4. Paragraph c of subdivision 1 of section 80.00 of the  penal  law,
as  amended  by  section  27 of subpart A of part H of chapter 55 of the
laws of 2014, is amended and a new paragraph  d  is  added  to  read  as
follows:
  c.  if the conviction is for any felony defined in article two hundred
twenty or two hundred twenty-one  of  this  chapter,  according  to  the
following schedule:
  (i) for A-I felonies, one hundred thousand dollars;

A. 5243--D                          3

  (ii) for A-II felonies, fifty thousand dollars;
  (iii) for B felonies, thirty thousand dollars;
  (iv) for C felonies, fifteen thousand dollars.
When  imposing  a fine pursuant to the provisions of this paragraph, the
court shall consider the profit gained by defendant's  conduct,  whether
the  amount  of  the  fine  is  disproportionate to the conduct in which
defendant engaged, its impact on any victims, and  defendant's  economic
circumstances,  including  the defendant's ability to pay, the effect of
the fine upon his or her immediate family or any other persons  to  whom
the defendant owes an obligation of support[.]; OR
  D.  IF  THE  CONVICTION  IS  FOR ANY FELONY INVOLVING FRAUD RELATED TO
ARTICLE FIFTEEN-A OF THE EXECUTIVE  LAW  OR  OTHER  LAWS  APPLICABLE  TO
MINORITY  AND WOMEN-OWNED BUSINESS ENTERPRISES, THE COURT MAY DOUBLE THE
AMOUNT THAT SHOULD HAVE BEEN PAID TO THE MINORITY OR  WOMEN-OWNED  BUSI-
NESS ENTERPRISE FOR BONA FIDE WORK OR MATERIALS UNDER THE CONTRACT.
  S  5.  Section  316 of the executive law, as amended by chapter 175 of
the laws of 2010, is amended to read as follows:
  S 316. Enforcement. 1. Upon receipt by the director of a complaint  by
a  contracting agency that a contractor has violated the provisions of a
state contract which have been included to comply with the provisions of
this article or of a contractor that a contracting agency  has  violated
such provisions or has failed or refused to issue a waiver where one has
been  applied  for  pursuant to subdivision six of section three hundred
thirteen of this article or has denied such  application,  the  director
shall  attempt  to  resolve the matter giving rise to such complaint. If
efforts to resolve such matter to the satisfaction of  all  parties  are
unsuccessful, the director shall refer the matter, within thirty days of
the  receipt  of the complaint, to the division's hearing officers. Upon
conclusion of the administrative  hearing,  the  hearing  officer  shall
submit  to  the  director  his  or  her  decision  regarding the alleged
violation of the contract and recommendations regarding  the  imposition
of  sanctions,  fines  or  penalties.  The  director, within ten days of
receipt of the decision, shall file a determination of such  matter  and
shall cause a copy of such determination along with a copy of this arti-
cle to be served upon the contractor by personal service or by certified
mail return receipt requested. The decision of the hearing officer shall
be  final  and  may  only  be vacated or modified as provided in article
seventy-eight of the civil practice law and rules  upon  an  application
made  within the time provided by such article. The determination of the
director as to the imposition of any fines, sanctions or penalties shall
be reviewable pursuant to article seventy-eight of  the  civil  practice
law and rules. The penalties imposed for any violation which is premised
upon  either  a  fraudulent  or  intentional  misrepresentation  by  the
contractor or the contractor's willful and intentional disregard of  the
minority  and  women-owned  participation  requirement  included  in the
contract may include a determination that the contractor shall be ineli-
gible to submit a bid to any contracting agency or be awarded  any  such
contract  for a period not to exceed one year following the final deter-
mination; provided however, if a contractor has previously  been  deter-
mined  to  be  ineligible  to submit a bid pursuant to this section, the
penalties imposed for any subsequent violation, if such violation occurs
within five years of the first violation, may  include  a  determination
that the contractor shall be ineligible to submit a bid to any contract-
ing  agency  or  be awarded any such contract for a period not to exceed
five years following the final determination. The division  of  minority
and  women's  business  development shall maintain a website listing all

A. 5243--D                          4

contractors that have been deemed ineligible to submit a bid pursuant to
this section and the date after which each contractor shall  once  again
become eligible to submit bids.
  2.  ANY  FINES,  OR PORTION THEREOF, IMPOSED PURSUANT TO THE FOREGOING
SUBDIVISION, OR IMPOSED BY A COURT OF COMPETENT JURISDICTION RELATED  TO
CONVICTIONS INVOLVING FRAUD RELATED TO THIS ARTICLE OR OTHERWISE INVOLV-
ING  A  MINORITY  OR WOMEN-OWNED BUSINESS ENTERPRISE, MAY BE REQUIRED BY
THE  ENTITY  IMPOSING  SUCH  FINES  TO  BE  PAID  TO  THE  MINORITY  AND
WOMEN-OWNED  BUSINESS  ENTERPRISE  FUND  ESTABLISHED PURSUANT TO SECTION
NINETY-SEVEN-J OF THE STATE FINANCE LAW.
  S 6. The state finance law is amended by adding a new section 97-j  to
read as follows:
  S 97-J. MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE FUND. 1. THERE IS
HEREBY ESTABLISHED IN THE JOINT CUSTODY OF THE STATE COMPTROLLER AND THE
COMMISSIONER  OF  TAXATION AND FINANCE A SPECIAL FUND TO BE KNOWN AS THE
"MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE FUND".
  2. SUCH FUNDS SHALL CONSIST OF ALL MONEYS APPROPRIATED FOR THE PURPOSE
OF SUCH FUND, ALL MONEYS TRANSFERRED OR PAID TO SUCH  FUND  PURSUANT  TO
LAW,  INCLUDING  PURSUANT TO SECTION THREE HUNDRED SIXTEEN OF THE EXECU-
TIVE LAW, AND CONTRIBUTIONS CONSISTING OF GRANTS,  INCLUDING  GRANTS  OR
OTHER  FINANCIAL ASSISTANCE FROM ANY AGENCY OF GOVERNMENT AND ALL MONEYS
REQUIRED BY THE PROVISIONS OF THIS SECTION OR ANY OTHER LAW TO  BE  PAID
INTO OR CREDITED TO THIS FUND.
  3.  MONIES  OF  THE  FUND, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
SHALL BE EXPENDED TO ACQUIRE SOFTWARE, EMPLOY PERSONNEL TO AUDIT, INVES-
TIGATE AND PROSECUTE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE  FRAUD
AND  TO UNDERWRITE MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE PROGRAMS
TO ASSIST MINORITY AND  WOMEN  BUSINESS  ENTERPRISE  OWNERS  TO  DEVELOP
SUSTAINABLE BUSINESSES.
  S  7.  This act shall take effect immediately, provided, however, that
the amendments to article 15-A of the executive  law  made  by  sections
one, two, three, and five of this act shall not affect the expiration of
such article and shall be deemed to expire therewith.