BILL NUMBER:  S395

 TITLE OF BILL :  An act to amend the penal law, in relation to the
definition of mentally disabled and in relation to larceny

 PURPOSE :

To amend the Penal Law to state that, "it is no defense to a
prosecution for larceny that the defendant obtained consent to take,
withhold, or obtain property, where such consent was obtained from a
person who the defendant knew or had reason to know was mentally
disabled and to define "mentally disabled."

 SUMMARY OF PROVISIONS :

Section 1 amends § 155.00 of the Penal Law, by adding a new
subdivision 10 to specify the term "mentally disabled" means that a
person suffers from a mental disease, defect or condition which
renders him or her incapable of appraising the nature of the conduct
constituting the taking, obtaining or withholding of his or her
property.

Section 2 amends § 155.10 of the Penal Law to state that, "it is no
defense to a prosecution for larceny that the defendant obtained
consent to take, withhold, or obtain property, where such consent was
obtained from a person who the defendant knew or had reason to know
              

was mentally disabled."

Section 3 states that this act shall take effect immediately

 JUSTIFICATION :

New York's Penal Law was recently amended to target physical assaults
committed against elderly victims. In contrast with most other states
in the country, however, New York has not addressed the financial
exploitation of impaired adults. The sad fact is that older adults who
suffer from age-related cognitive disorders may be unable to
understand basic arithmetic, let alone their finances. They may not
remember signing checks, wills or deeds, or giving permission or
authority to transfer ownership of their bank accounts or real estate.

For those reasons, an elderly victim's mental infirmity can complicate
a Larceny prosecution. The Penal Law requires proof that the defendant
wrongfully took, obtained or withheld property from an owner - in
other words, that the property was taken without consent.  A mentally
disabled victim, however, cannot give meaningful consent; more
saliently, such a victim cannot testify (nor, for that matter, execute
a sworn certification) that his or her property was taken without
consent. To prove this element, the prosecution often relies on
evidence that at the time of the taking, the victim lacked the mental
capacity to consent. That is precisely what occurred in People v.
Caminola. There, the defendant stole from his victim, a senile elderly
woman, over a two-year period. At trial, the defendant testified that
the funds he took were gifts from the victim, who had by then passed
away. The trial court permitted the prosecution to introduce evidence
of the victim's mental condition at the time of the transfer, deeming
it relevant to whether she had the capacity to consent.

The First Department affirmed the conviction, explaining: The jury was
not instructed that the victim's capacity or incapacity was an element
of the offense, but only that they could evaluate her capacity under
the circumstances of this case in determining whether a trespass had
occurred or whether, as defendant contended, he had acted with her
knowledge and consent. Although we note the paucity of case law in
this State equating a trespass for purposes of larceny with an
ostensibly donative victim's inability to consent to the taking,
nevertheless, these factors are properly considered in the context of
a traditional understanding of the larceny statute.

The "paucity of case law" has seeded confusion in Larceny cases with
mentally disabled victims. This legislation will codify the holding of
Caminola to make it applicable statewide.

 LEGISLATIVE HISTORY :

2013-14: S 7177/A.8777-A Passed Senate/Referred to Codes

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately.