BILL NUMBER: S1070

SPONSOR: GALLIVAN
 
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 establishes the effective date.

 
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 exploita-
tion 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 certif-
ication) 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 know-
ledge 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:

2017-18: S.5900/A.3215 Advanced to 3rd Reading/Referred to Codes

2015-16: S.395/A.4447 Passed Senate/Referred to Codes

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

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.