S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    122
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by  M.  of  A.  BUCHWALD, D'URSO, GALEF, MONTESANO, DICKENS,
   LAVINE, LAWRENCE, CROUCH, RAIA, MORINELLO, RIVERA  --  Multi-Sponsored
   by  --  M.  of A. ABBATE -- read once and referred to the Committee on
   Codes
 
 AN ACT to  amend  the  penal  law,  in  relation  to  misapplication  of
   construction rental equipment and theft of services
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The penal law is amended by adding a new section 165.03  to
 read as follows:
 § 165.03 MISAPPLICATION OF CONSTRUCTION RENTAL EQUIPMENT.
   1.  A PERSON IS GUILTY OF MISAPPLICATION OF CONSTRUCTION RENTAL EQUIP-
 MENT WHEN, KNOWINGLY POSSESSING CONSTRUCTION RENTAL EQUIPMENT OF ANOTHER
 PURSUANT TO AN AGREEMENT THAT THE SAME WILL BE RETURNED TO THE OWNER  AT
 A FUTURE TIME:
   (A)  HE  OR  SHE  LOANS, LEASES, PLEDGES, PAWNS OR OTHERWISE ENCUMBERS
 SUCH PROPERTY VALUED IN EXCESS  OF  ONE  THOUSAND  DOLLARS  WITHOUT  THE
 CONSENT OF THE OWNER THEREOF IN SUCH MANNER AS TO CREATE A RISK THAT THE
 OWNER WILL NOT BE ABLE TO RECOVER IT OR WILL SUFFER PECUNIARY LOSS; OR
   (B)  HE OR SHE INTENTIONALLY REFUSES TO RETURN SUCH PROPERTY VALUED IN
 EXCESS OF ONE THOUSAND DOLLARS TO THE OWNER PURSUANT TO THE TERMS OF THE
 RENTAL AGREEMENT PROVIDED THAT THE  OWNER  SHALL  HAVE  MADE  A  WRITTEN
 DEMAND  FOR  THE RETURN OF SUCH EQUIPMENT IN PERSON OR BY CERTIFIED MAIL
 AT AN ADDRESS INDICATED IN THE RENTAL AGREEMENT AND  HE  OR  SHE  INTEN-
 TIONALLY REFUSES TO RETURN SUCH EQUIPMENT FOR A PERIOD OF TEN DAYS AFTER
 SUCH  DEMAND  HAS BEEN RECEIVED OR SHOULD REASONABLY HAVE BEEN RECEIVED.
 SUCH WRITTEN DEMAND SHALL STATE: (I) THE DATE  AND  TIME  AT  WHICH  THE
 EQUIPMENT  WAS  TO  HAVE  BEEN RETURNED UNDER THE RENTAL AGREEMENT; (II)
 THAT THE OWNER DOES NOT CONSENT TO THE CONTINUED WITHHOLDING OR  RETAIN-
 ING OF SUCH EQUIPMENT AND DEMANDS ITS RETURN; AND (III) THAT THE CONTIN-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD00702-01-9

 A. 122                              2
 
 UED  WITHHOLDING  OR RETAINING OF THE EQUIPMENT MAY CONSTITUTE A CLASS E
 FELONY PUNISHABLE BY A FINE OF UP  TO  TWO  THOUSAND  DOLLARS  OR  BY  A
 SENTENCE  TO A TERM OF IMPRISONMENT FOR A PERIOD OF UP TO ONE YEAR OR BY
 BOTH SUCH FINE AND IMPRISONMENT.
   2. AS USED IN THIS SECTION, THE TERMS OWNER AND RENTAL AGREEMENT SHALL
 BE  DEFINED AS IN SUBDIVISION ONE OF SECTION THREE HUNDRED NINETY-NINE-W
 OF THE GENERAL BUSINESS LAW, AS ADDED BY CHAPTER THREE HUNDRED  SEVENTY-
 TWO  OF  THE LAWS OF NINETEEN HUNDRED NINETY-FIVE. THE TERM CONSTRUCTION
 RENTAL EQUIPMENT SHALL MEAN ANY EQUIPMENT OR TOOLS GENERALLY USED IN THE
 CONSTRUCTION TRADE AND RENTED TO AN INDIVIDUAL OR  BUSINESS  UNDER  SUCH
 TERMS AS ARE AGREED UPON IN WRITING BY THE PARTIES TO SUCH AGREEMENT.
   3.  IN  ANY PROSECUTION UNDER PARAGRAPH (A) OF SUBDIVISION ONE OF THIS
 SECTION, IT  IS  A  DEFENSE  THAT,  AT  THE  TIME  THE  PROSECUTION  WAS
 COMMENCED,  (A)  THE DEFENDANT HAD RECOVERED POSSESSION OF THE EQUIPMENT
 WITHIN THE TIME SPECIFIED IN THE ORIGINAL RENTAL AGREEMENT OR ANY AMEND-
 MENT THERETO, UNENCUMBERED AS A RESULT OF THE UNLAWFUL DISPOSITION,  AND
 (B)  THE OWNER HAD SUFFERED NO MATERIAL ECONOMIC LOSS AS A RESULT OF THE
 UNLAWFUL DISPOSITION.
   4. IN ANY PROSECUTION UNDER PARAGRAPH (B) OF SUBDIVISION ONE  OF  THIS
 SECTION, IT IS A DEFENSE THAT AT THE TIME THE PROSECUTION WAS COMMENCED,
 (A)  THE OWNER HAD RECOVERED POSSESSION OF THE EQUIPMENT AND SUFFERED NO
 ECONOMIC LOSS AS A RESULT OF THE UNLAWFUL RETENTION, OR  (B)  THE  OWNER
 FAILED  TO  COMPLY  WITH THE PROVISIONS OF SECTION THREE HUNDRED NINETY-
 NINE-W OF THE GENERAL BUSINESS LAW, AS ADDED BY  CHAPTER  THREE  HUNDRED
 SEVENTY-TWO OF THE LAWS OF NINETEEN HUNDRED NINETY-FIVE.
   MISAPPLICATION OF CONSTRUCTION RENTAL EQUIPMENT IS A CLASS E FELONY.
   § 2. Section 165.15 of the penal law is amended by adding a new subdi-
 vision 13 to read as follows:
   13.    OBTAINING OR HAVING CONTROL OVER COMMERCIAL CONSTRUCTION RENTAL
 EQUIPMENT OF ANOTHER PERSON OR ENTITY PURSUANT TO A RENTAL AGREEMENT, HE
 OR SHE FAILS TO RETURN SUCH EQUIPMENT TO THE OWNER THEREOF ON  THE  DATE
 SPECIFIED FOR RETURN IN SUCH RENTAL AGREEMENT.
   §  3.  This  act shall take effect on the thirtieth day after it shall
 have become a law.