Bill Text: NY A10725 | 2019-2020 | General Assembly | Introduced

---

Bill Title: Establishes and redefines offenses involving fraud, scheme to de-fraud and larceny.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2020-07-01 - referred to codes [A10725 Detail]

Download: New_York-2019-A10725-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          10725

                   IN ASSEMBLY

                                      July 1, 2020
                                       ___________

        Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Seawright)
          -- read once and referred to the Committee on Codes

        AN ACT to amend the penal law, in relation to establishing and  redefin-
          ing  offenses  involving  fraud, scheme to defraud and larceny; and to
          repeal sections 190.60 and 190.65 of such law relating thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Section  155.00 of the penal law, subdivisions 1 and 8 as
     2  amended by chapter 514 of the laws of 1986, subdivision 6  as  added  by
     3  chapter  791  of the laws of 1967, subdivision 7 as added by chapter 115
     4  of the laws of 1969, subdivision 7-a as added by chapter 556 of the laws
     5  of 1987, subdivision 7-b as added by chapter 81 of  the  laws  of  1995,
     6  subdivision  7-c  as  amended  by  chapter  171 of the laws of 1993, and
     7  subdivision 9 as added by chapter 530 of the laws of 1975, is amended to
     8  read as follows:
     9  § 155.00 Larceny; definitions of terms.
    10    The following definitions are applicable to this title:
    11    1. "Property" means  any  money,  personal  property,  real  property,
    12  computer  data,  computer  program,  personal  identifying  information,
    13  secret scientific  material,  thing  in  action,  evidence  of  debt  or
    14  contract,  or  any  article,  substance or thing of value, including any
    15  gas, steam, water or electricity, which is  provided  for  a  charge  or
    16  compensation.
    17    2.  "Obtain"  includes, but is not limited to, the bringing about of a
    18  transfer or purported transfer of property or of a legal interest there-
    19  in, whether to the obtainer or another.  With regard to personal identi-
    20  fying information, computer data or a computer program, obtain  includes
    21  duplicating,  recording, copying, downloading, uploading or printing out
    22  the information, data,  or  program,  or  obtaining  a  physical  object
    23  containing  such information.   With regard to service, obtain includes,
    24  but is not limited to, using or accessing a service.
    25    3. "Deprive." To "deprive" another of property means (a)  to  withhold
    26  it  or  cause  it  to  be withheld from him or her permanently or for so
    27  extended a period or under such circumstances that the major portion  of

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07556-01-9
        A. 10725                            2

     1  its  economic  value or benefit is lost to him or her, or (b) to dispose
     2  of the property in such manner or under such circumstances as to  render
     3  it unlikely that an owner will recover such property.  When the property
     4  is  personal  identifying  information,  computer  data  or  a  computer
     5  program, to deprive another of it means to obtain it or  cause  a  third
     6  person  to obtain it under such circumstances that a substantial portion
     7  of the economic benefit or value of having control over it or  authority
     8  over  its  use  is lost to an owner. To deprive another of service is to
     9  use or access a service or cause a third  person  to  use  or  access  a
    10  service  under  such  circumstances that some of the economic benefit or
    11  value of having control or authority over providing the service is  lost
    12  to an owner.
    13    4. "Appropriate." To "appropriate" property of another to oneself or a
    14  third  person  means  (a) to exercise control over it, or to aid a third
    15  person to exercise control over it, permanently or  for  so  extended  a
    16  period  or  under  such circumstances as to acquire the major portion of
    17  its economic value or benefit, or (b) to dispose of the property for the
    18  benefit of oneself or a third person.   When the  property  is  personal
    19  identifying information, computer data or a computer program of another,
    20  to  appropriate it to oneself or a third person means to obtain it under
    21  such circumstances as to acquire the ability to use it or dispose of  it
    22  to  the economic benefit of oneself or a third person or to the economic
    23  detriment or damage of an owner. To appropriate a  service  provided  by
    24  another  to oneself or a third person means to use or access the service
    25  under such circumstances as to acquire the ability  to  use  it  to  the
    26  economic  benefit of oneself or a third person or to the economic detri-
    27  ment or damage of an owner.
    28    5. "Owner." When property or service is taken, obtained or withheld by
    29  one person from another person, an "owner" thereof means any person  who
    30  has  a  right  to  possession  [thereof]  of  the property or a right to
    31  provide the service superior to that of the taker, obtainer or withhold-
    32  er.
    33    A person who has obtained possession of property or service  by  theft
    34  or  other illegal means shall be deemed to have a right of possession of
    35  the property or a right to provide the service superior  to  that  of  a
    36  person  who  takes, obtains or withholds it from him or her by larcenous
    37  means.
    38    A joint or common owner of property shall not  be  deemed  to  have  a
    39  right  of  possession  thereto  superior  to  that of any other joint or
    40  common owner thereof.
    41    In the absence of a specific agreement to the contrary,  a  person  in
    42  lawful  possession  of  property  shall  be  deemed  to  have a right of
    43  possession superior to that of a person having only a security  interest
    44  therein, even if legal title lies with the holder of the security inter-
    45  est pursuant to a conditional sale contract or other security agreement.
    46    6.  "Secret scientific material" means a sample, culture, micro-organ-
    47  ism, specimen, record, recording, document, drawing or any  other  arti-
    48  cle,  material,  device  or  substance  which  constitutes,  represents,
    49  evidences, reflects, or  records  a  scientific  or  technical  process,
    50  invention or formula or any part or phase thereof, and which is not, and
    51  is  not  intended  to  be,  available to anyone other than the person or
    52  persons rightfully in possession  thereof  or  selected  persons  having
    53  access  thereto  with  his, her or their consent, and when it accords or
    54  may accord such rightful possessors an  advantage  over  competitors  or
    55  other persons who do not have knowledge or the benefit thereof.
        A. 10725                            3

     1    7.  ["Credit card" means any instrument or article defined as a credit
     2  card in section five hundred eleven of the general business law.
     3    7-a.  "Debit  card" means any instrument or article defined as a debit
     4  card in section five hundred eleven of the general business law.
     5    7-b. "Public benefit card" means any  medical  assistance  card,  food
     6  stamp  assistance card, public assistance card, or any other identifica-
     7  tion, authorization card or electronic access device issued by the state
     8  or a social services district as defined in subdivision seven of section
     9  two of the social services law, which entitles a person to obtain public
    10  assistance benefits under a local, state or federal program administered
    11  by the state, its political subdivisions or social services districts.
    12    7-c. "Access device" means any telephone calling card  number,  credit
    13  card  number,  account  number, mobile identification number, electronic
    14  serial number or personal identification number  that  can  be  used  to
    15  obtain  telephone  service.]  "Personal identifying information" means a
    16  person's date of birth, driver's license number, social security number,
    17  personal identification number, financial  services  account  number  or
    18  code,  savings  account number or code, checking account number or code,
    19  brokerage account number or code, credit card account  number  or  code,
    20  debit  card  number  or  code,  automated teller machine number or code,
    21  taxpayer identification number, computer system password,  signature  or
    22  copy of a signature, electronic signature, unique biometric data that is
    23  a fingerprint, voice print, retinal image or iris image, telephone call-
    24  ing card number, mobile identification number or code, electronic serial
    25  number  or  personal  identification  number, or any other name, number,
    26  code or information that may be used alone or in conjunction with  other
    27  such  information  to  assume  the  identity of another person or access
    28  financial resources or credit of another person, or any physical  object
    29  containing such information, such as a printout or other written materi-
    30  al,  driver's  license  or other identity card, credit card, debit card,
    31  public benefit card, automated teller or other  transactional  card,  or
    32  computer, hard drive, or other data storage device. In this subdivision,
    33  "person"  has all the meanings set forth in subdivision seven of section
    34  10.00 of this chapter; "electronic signature" has the  meaning  provided
    35  in subdivision three of section three hundred two of the state technolo-
    36  gy  law;  "credit  card"  and "debit card" have the meanings provided in
    37  section five hundred eleven of the general business law; "public benefit
    38  card" means any medical assistance card,  food  stamp  assistance  card,
    39  public  assistance card, or any other identification, authorization card
    40  or electronic access device issued by the state  or  a  social  services
    41  district  as  defined  in subdivision seven of section two of the social
    42  services law which entitles a person to obtain public  assistance  bene-
    43  fits  under a local, state or federal program administered by the state,
    44  its political subdivisions or social services districts.
    45    8. "Service" includes, but is not  limited  to,  [labor,  professional
    46  service,] a computer service, transportation service, telecommunications
    47  service,  cable  or satellite television service, microwave transmission
    48  service, the supplying of service pursuant to a public  or  governmental
    49  benefit  program,  including  housing and medical care, the supplying of
    50  service pursuant to an insurance policy or  program,  the  supplying  of
    51  hotel  accommodations, restaurant services, entertainment, the supplying
    52  of equipment for use, and the supplying of commodities of a public util-
    53  ity nature such as gas, electricity, steam and water. A ticket or equiv-
    54  alent instrument which evidences a right to receive a service is not  in
    55  itself  service  but constitutes property within the meaning of subdivi-
    56  sion one.
        A. 10725                            4

     1    9. ["Cable television service" means any and all services provided  by
     2  or  through  the  facilities  of  any  cable television system or closed
     3  circuit coaxial cable communications system, or any microwave or similar
     4  transmission service used in connection with any cable television system
     5  or  other  similar  closed circuit coaxial cable communications system.]
     6  "Computer program" means an  ordered  set  of  data  representing  coded
     7  instructions  or  statements  that, when executed by computer, cause the
     8  computer to process data or direct the computer to perform one  or  more
     9  computer  operations  or both and may be in any form, including magnetic
    10  storage media, punched cards, or stored internally in the memory of  the
    11  computer.
    12    10.  "Computer data" means a representation of information, knowledge,
    13  facts, concepts or instructions which are being processed, or have  been
    14  processed in a computer and may be in any form, including magnetic stor-
    15  age  media,  punched  cards,  or  stored internally in the memory of the
    16  computer.
    17    § 2. Paragraph (c) of subdivision 2 of section 155.05 of the penal law
    18  is amended and a new paragraph (f) is added to read as follows:
    19    (c) By committing the crime of issuing a  bad  check,  as  defined  in
    20  section 190.05, or by obtaining property or service by using or present-
    21  ing  a  form  of  payment  or personal identifying information the actor
    22  knows he or she is not authorized to use or knows is expired  or  forged
    23  or otherwise not valid;
    24    (f)  By  theft of service. Theft of service means either: (i) using or
    25  accessing a service in a manner  that  otherwise  requires  payment  and
    26  intentionally  failing to pay for such use or access by either tampering
    27  without authority with a delivery, payment,  or  measurement  device  or
    28  mechanism,  or  by  entering  or  leaving  premises where the service is
    29  provided by stealth or by evading a physical barrier, or (ii)  using  or
    30  accessing  a  service in a manner that otherwise requires payment or the
    31  presentation of personal identifying information and using or presenting
    32  a form of payment or personal identifying information the actor knows he
    33  or she is not authorized to use or knows is expired or forged or  other-
    34  wise not valid.
    35    §  3.  Subdivisions  1 and 2 of section 155.20 of the penal law, para-
    36  graph (b) of subdivision 2 as added and paragraph (c) of  subdivision  2
    37  as relettered by chapter 115 of the laws of 1969, are amended to read as
    38  follows:
    39    1.  Except  as  otherwise  specified  in this section, value means the
    40  market value of the property at the time and place of the crime,  or  if
    41  such cannot be satisfactorily ascertained:  (i) with regard to property,
    42  the  cost  of replacement of the property within a reasonable time after
    43  the crime; or (ii) with regard to service, the  cost  of  providing  the
    44  service at the time of the crime.
    45    2. [Whether or not they have been issued or delivered, certain written
    46  instruments,  not  including those having a readily ascertainable market
    47  value such as some public and corporate bonds and securities,  shall  be
    48  evaluated as follows:
    49    (a)  The value of an instrument constituting an evidence of debt, such
    50  as a check, draft or promissory note, shall be deemed the amount due  or
    51  collectable  thereon  or  thereby, such figure ordinarily being the face
    52  amount of the indebtedness less  any  portion  thereof  which  has  been
    53  satisfied.
    54    (b)  The  value of a ticket or equivalent instrument which evidences a
    55  right to receive a transportation, entertainment or other service  shall
    56  be  deemed  the  price stated thereon, if any; and if no price is stated
        A. 10725                            5

     1  thereon the value shall be deemed the price of such ticket or equivalent
     2  instrument which the issuer charges the general public.
     3    (c)  The  value  of  any  other  instrument  which  creates, releases,
     4  discharges or otherwise affects any valuable legal right,  privilege  or
     5  obligation  shall  be  deemed the greatest amount of economic loss which
     6  the owner of the instrument might reasonably suffer  by  virtue  of  the
     7  loss  of  the  instrument.]  The  value  of  computer data or a computer
     8  program is the replacement cost or the market  value  at  the  time  and
     9  place of the crime, whichever is greater.
    10    §  4.  The penal law is amended by adding a new section 155.23 to read
    11  as follows:
    12  § 155.23 Petit theft of service.
    13    A person is guilty of petit theft of service when he or she  steals  a
    14  service.
    15    Petit theft of service is a class B misdemeanor.
    16    § 5. Section 155.25 of the penal law is amended to read as follows:
    17  § 155.25 Petit larceny.
    18    A person is guilty of petit larceny when he or she:
    19    1. steals property; or
    20    2.  steals a service and the value of the service exceeds five hundred
    21  dollars.
    22    Petit larceny is a class A misdemeanor.
    23    § 6. The opening paragraph and subdivisions 1,  4  and  6  of  section
    24  155.30  of the penal law, the opening paragraph and subdivisions 1 and 6
    25  as amended by chapter 515 of the laws of 1986, subdivision 4 as  amended
    26  by chapter 556 of the laws of 1987, are amended to read as follows:
    27    A  person  is  guilty of grand larceny in the fourth degree when he or
    28  she steals property or a service and when:
    29    1. The value of  the  property  or  a  service  exceeds  one  thousand
    30  dollars; or
    31    4.  The  property  consists  of [a credit card or debit card] personal
    32  identifying information; or
    33    6. The property or a service, regardless of its nature and  value,  is
    34  obtained by extortion; or
    35    § 7. Section 155.35 of the penal law, as amended by chapter 464 of the
    36  laws of 2010, is amended to read as follows:
    37  § 155.35 Grand larceny in the third degree.
    38    A person is guilty of grand larceny in the third degree when he or she
    39  steals property or a service and:
    40    1.  when the value of the property or a service exceeds three thousand
    41  dollars, or
    42    2. the property is an automated teller machine or the contents  of  an
    43  automated teller machine, or
    44    3.  the  property is personal identifying information concerning twen-
    45  ty-five or more persons.
    46    Grand larceny in the third degree is a class D felony.
    47    § 8. Section 155.40 of the penal law, as amended by chapter 515 of the
    48  laws of 1986, is amended to read as follows:
    49  § 155.40 Grand larceny in the second degree.
    50    A person is guilty of grand larceny in the second degree  when  he  or
    51  she steals property or a service and when:
    52    1.  The  value  of  the  property  or a service exceeds fifty thousand
    53  dollars; or
    54    2. The property or a service, regardless of its nature and  value,  is
    55  obtained  by extortion committed by instilling in the victim a fear that
    56  the actor or another person will  (a)  cause  physical  injury  to  some
        A. 10725                            6

     1  person  in  the  future,  or (b) cause damage to property, or (c) use or
     2  abuse his or her position as a public servant  by  engaging  in  conduct
     3  within or related to his or her official duties, or by failing or refus-
     4  ing to perform an official duty, in such manner as to affect some person
     5  adversely; or
     6    3.  The  property  is  personal identifying information concerning one
     7  hundred or more persons.
     8    Grand larceny in the second degree is a class C felony.
     9    § 9. Section 155.42 of the penal law, as added by chapter 515  of  the
    10  laws of 1986, is amended to read as follows:
    11  § 155.42 Grand larceny in the first degree.
    12    A person is guilty of grand larceny in the first degree when he or she
    13  steals property or a service and when:
    14    1. the value of the property exceeds one million dollars; or
    15    2.  the  property  is  personal identifying information concerning one
    16  thousand or more persons.
    17    Grand larceny in the first degree is a class B felony.
    18    § 10. Sections 190.60 and 190.65 of the penal law are REPEALED.
    19    § 11. The penal law is amended by  adding  six  new  sections  190.60,
    20  190.61, 190.62, 190.63, 190.64, and 190.65 to read as follows:
    21  § 190.60 Scheme to defraud defined.
    22    1. A person engages in a scheme to defraud when he or she engages in a
    23  scheme  constituting  a systematic ongoing course of conduct with intent
    24  to defraud at least one person or to obtain property or service from  at
    25  least  one  person  by false or fraudulent pretenses, representations or
    26  promises, and so obtains property or service from at least one person.
    27    2. Property, service, computer data and computer  program  shall  have
    28  the meanings set forth in section 155.00 of this chapter.
    29    3. In any prosecution of a scheme to defraud, it shall be necessary to
    30  prove  the  identity  of  at least one person from whom the defendant so
    31  obtained property or service, but it shall not be necessary to prove the
    32  identity of any other intended victim, provided that in a prosecution of
    33  a scheme to defraud pursuant to subdivision three of section  190.62  of
    34  this  article,  it  shall be necessary to prove the identity of at least
    35  one such vulnerable elderly person.
    36  § 190.61 Scheme to defraud in the fifth degree.
    37    A person is guilty of a scheme to defraud in the fifth degree when  he
    38  or she engages in a scheme to defraud.
    39    Scheme to defraud in the fifth degree is a class A misdemeanor.
    40  § 190.62 Scheme to defraud in the fourth degree.
    41    A person is guilty of a scheme to defraud in the fourth degree when he
    42  or she engages in a scheme to defraud, and
    43    1. intends to obtain property or service from ten or more persons; or
    44    2.  the value of the property or service obtained exceeds one thousand
    45  dollars; or
    46    3. intends to obtain and does obtain property or service from at least
    47  one vulnerable elderly person as defined in subdivision three of section
    48  260.31 of this chapter.
    49    Scheme to defraud in the fourth degree is a class E felony.
    50  § 190.63 Scheme to defraud in the third degree.
    51    A person is guilty of a scheme to defraud in the third degree when  he
    52  or she engages in a scheme to defraud, and
    53    1.  intends  to  obtain  property  or service from twenty-five or more
    54  persons; or
    55    2. the value of the property or service obtained exceeds  three  thou-
    56  sand dollars.
        A. 10725                            7

     1    Scheme to defraud in the third degree is a class D felony.
     2  § 190.64 Scheme to defraud in the second degree.
     3    A person is guilty of a scheme to defraud in the second degree when he
     4  or she engages in a scheme to defraud, and
     5    1.  intends  to  obtain  property  or service from one hundred or more
     6  persons; or
     7    2. the value of the property or service obtained exceeds  fifty  thou-
     8  sand dollars.
     9    Scheme to defraud in the second degree is a class C felony.
    10  § 190.65 Scheme to defraud in the first degree.
    11    A  person is guilty of a scheme to defraud in the first degree when he
    12  or she engages in a scheme to defraud, and
    13    1. intends to obtain property or service from  one  thousand  or  more
    14  persons; or
    15    2.  the  value of the property or service obtained exceeds one million
    16  dollars.
    17    Scheme to defraud in the first degree is a class B felony.
    18    § 12. This act shall  take  effect  on  the  first  of  November  next
    19  succeeding the date on which it shall have become a law.