Bill Text: NY S03185 | 2011-2012 | General Assembly | Amended
Bill Title: Provides for the imposition of a mandatory fine upon certain public officials convicted of a designated felony offense related to his or her official duties; establishes the offense of abuse of public trust crime.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2012-01-12 - PRINT NUMBER 3185B [S03185 Detail]
Download: New_York-2011-S03185-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
3185--A
2011-2012 Regular Sessions
I N S E N A T E
February 11, 2011
___________
Introduced by Sen. GOLDEN -- (at request of the State Comptroller) --
read twice and ordered printed, and when printed to be committed to
the Committee on Civil Service and Pensions -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee
AN ACT to amend the retirement and social security law, in relation to
the forfeiture of the pensions of certain public officers upon
conviction of a felony related to public employment; to amend the
penal law, in relation to the imposition of a mandatory fine upon
certain public officers convicted of a designated felony offense
related to his or her official duties; and to amend the penal law and
the criminal procedure law, in relation to the crime of official
misconduct and to abuse of public trust crimes
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The retirement and social security law is amended by adding
2 a new article 3-B to read as follows:
3 ARTICLE 3-B
4 DISQUALIFICATION AND FORFEITURE OF BENEFITS
5 SECTION 156. DEFINITIONS.
6 157. DISQUALIFICATION AND FORFEITURE OF BENEFITS.
7 158. FORFEITURE PROCEEDING; COMMENCEMENT AND PROCEDURE.
8 159. MISCELLANEOUS.
9 S 156. DEFINITIONS. THE FOLLOWING WORDS AND PHRASES, AS USED IN THIS
10 ARTICLE, SHALL HAVE THE FOLLOWING MEANINGS, UNLESS A DIFFERENT MEANING
11 IS PLAINLY REQUIRED BY THE CONTEXT:
12 1. (A) "DESIGNATED FELONY OFFENSE" SHALL MEAN: (I) ANY FELONY, THE
13 COMMISSION OF WHICH IS RELATED TO THE PERFORMANCE OR FAILURE TO PERFORM
14 SUCH MEMBER'S OR RETIRED MEMBER'S OFFICIAL DUTIES AND RESPONSIBILITIES
15 AS A PUBLIC OFFICER; (II) AN ATTEMPT, CONSPIRACY, OR SOLICITATION OF
16 ANOTHER TO COMMIT ANY FELONY, THE COMMISSION OF WHICH IS RELATED TO THE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08618-05-1
S. 3185--A 2
1 PERFORMANCE OR FAILURE TO PERFORM SUCH MEMBER'S OR RETIRED MEMBER'S
2 OFFICIAL DUTIES AND RESPONSIBILITIES AS A PUBLIC OFFICER; OR (III) ANY
3 CRIMINAL OFFENSE COMMITTED IN VIOLATION OF FEDERAL LAW OR THE LAW OF ANY
4 OTHER STATE WHICH IF COMMITTED WITHIN THIS STATE, WOULD CONSTITUTE AN
5 OFFENSE DESIGNATED IN SUBPARAGRAPH (I) OR (II) OF THIS PARAGRAPH.
6 (B) FOR THE PURPOSES OF PARAGRAPH (A) OF THIS SUBDIVISION, A DESIG-
7 NATED FELONY OFFENSE IS RELATED TO THE PERFORMANCE OR FAILURE TO PERFORM
8 SUCH MEMBER'S OR RETIRED MEMBER'S OFFICIAL DUTIES AND RESPONSIBILITIES
9 AS A PUBLIC OFFICER IF IT: (I) CONSTITUTED A MATERIAL VIOLATION OF SUCH
10 MEMBER'S OR RETIRED MEMBER'S DUTIES AND RESPONSIBILITIES; OR (II) EVEN
11 THOUGH COMMITTED OUTSIDE THE SCOPE OF SUCH MEMBER'S OR RETIRED MEMBER'S
12 OFFICIAL DUTIES OR RESPONSIBILITIES, INVOLVED ACTIONS OR CONDUCT BY
13 WHICH SUCH MEMBER OR RETIRED MEMBER INDICATED OR CONVEYED THAT HE OR SHE
14 WAS ACTING WITH THE AUTHORITY OF, OR UNDER COLOR OF THE AUTHORITY OF,
15 ANY GOVERNMENTAL ENTITY.
16 2. "COMPTROLLER" SHALL MEAN THE COMPTROLLER OF THE STATE OF NEW YORK
17 IN HIS OR HER CAPACITY AS ADMINISTRATIVE HEAD OF THE RETIREMENT SYSTEM.
18 3. "PUBLIC OFFICER" SHALL MEAN (A) ANY STATEWIDE ELECTED OFFICIAL, (B)
19 ANY PERSON APPOINTED BY SUCH STATEWIDE ELECTED OFFICIAL WHO WAS EMPLOYED
20 IN A POSITION IN THE UNCLASSIFIED SERVICE OF THE CIVIL SERVICE AS
21 DEFINED IN SECTION THIRTY-FIVE OF THE CIVIL SERVICE LAW, OR AN EXEMPT
22 CLASS POSITION AS DEFINED IN SECTION FORTY-ONE OF THE CIVIL SERVICE LAW
23 OR A NON-COMPETITIVE POSITION AS DEFINED IN SECTION FORTY-TWO OF THE
24 CIVIL SERVICE LAW AND DESIGNATED IN THE RULES OF THE STATE CIVIL SERVICE
25 COMMISSION AS REQUIRING THE PERFORMANCE OF FUNCTIONS INFLUENCING POLICY
26 AT THE TIME OF THE COMMISSION OF A DESIGNATED FELONY OFFENSE, (C) ANY
27 MEMBER OF THE STATE LEGISLATURE, (D) ANY PERSON APPOINTED BY SUCH MEMBER
28 OF THE STATE LEGISLATURE, (E) ANY LOCAL ELECTED OFFICIAL, (F) ANY PERSON
29 APPOINTED BY SUCH LOCAL ELECTED OFFICIAL WHO WAS EMPLOYED IN AN EXEMPT
30 CLASS POSITION AS DEFINED IN SECTION FORTY-ONE OF THE CIVIL SERVICE LAW
31 OR A NON-COMPETITIVE POSITION AS DEFINED IN SECTION FORTY-TWO OF THE
32 CIVIL SERVICE LAW AND DESIGNATED IN THE RULES OF THE APPROPRIATE MUNICI-
33 PAL CIVIL SERVICE COMMISSION AS REQUIRING THE PERFORMANCE OF FUNCTIONS
34 INFLUENCING POLICY AT THE TIME OF THE COMMISSION OF A DESIGNATED FELONY
35 OFFENSE, (G) ANY MEMBER OF THE GOVERNING BOARD OF ANY PUBLIC AUTHORITY
36 OTHER THAN A MULTI-STATE AUTHORITY, (H) ANY MEMBER OF THE GOVERNING
37 BOARD OF ANY PUBLIC BENEFIT CORPORATION OR COMMISSION, AND (I) ANY
38 PERSON APPOINTED BY SUCH MEMBER OR DIRECTOR OF ANY PUBLIC AUTHORITY OR
39 PUBLIC BENEFIT CORPORATION OR COMMISSION WHO WAS EMPLOYED IN AN EXEMPT
40 CLASS POSITION AS DEFINED IN SECTION FORTY-ONE OF THE CIVIL SERVICE LAW
41 OR A NON-COMPETITIVE POSITION AS DEFINED IN SECTION FORTY-TWO OF THE
42 CIVIL SERVICE LAW AND DESIGNATED IN THE RULES OF THE STATE CIVIL SERVICE
43 COMMISSION AS REQUIRING THE PERFORMANCE OF FUNCTIONS INFLUENCING POLICY
44 AT THE TIME OF THE COMMISSION OF A DESIGNATED FELONY OFFENSE.
45 4."MEMBER" SHALL MEAN A PUBLIC OFFICER WHO FIRST JOINED THE RETIREMENT
46 SYSTEM ON OR AFTER THE EFFECTIVE DATE OF THIS ARTICLE.
47 5. "RETIRED MEMBER" SHALL MEAN A PUBLIC OFFICER WHO IS RETIRED FROM
48 AND WHO IS RECEIVING OR ELIGIBLE TO RECEIVE A RETIREMENT ALLOWANCE FROM
49 THE RETIREMENT SYSTEM AND WHO HAD FIRST JOINED SUCH SYSTEM ON OR AFTER
50 THE EFFECTIVE DATE OF THIS ARTICLE.
51 6. "RETIREMENT SYSTEM" SHALL MEAN THE NEW YORK STATE AND LOCAL EMPLOY-
52 EES' RETIREMENT SYSTEM OR THE NEW YORK STATE AND LOCAL POLICE AND FIRE
53 RETIREMENT SYSTEM.
54 S 157. DISQUALIFICATION AND FORFEITURE OF BENEFITS. NOTWITHSTANDING
55 ANY OTHER PROVISION OF GENERAL, SPECIAL OR LOCAL LAW, RULE OR REGULATION
56 TO THE CONTRARY, A MEMBER OR RETIRED MEMBER WHO IS CONVICTED OF OR
S. 3185--A 3
1 PLEADS NOLO CONTENDERE TO, ANY DESIGNATED FELONY OFFENSE SHALL FORFEIT
2 ALL OF THOSE RIGHTS AND BENEFITS TO WHICH SUCH PERSON IS OR WILL BE
3 ENTITLED AS A MEMBER OR RETIRED MEMBER.
4 S 158. FORFEITURE PROCEEDING; COMMENCEMENT AND PROCEDURE. 1. ANY
5 PROCEEDING FOR THE FORFEITURE OF THOSE RIGHTS AND BENEFITS TO WHICH A
6 PERSON IS OR WILL BE ENTITLED AS A MEMBER OR RETIRED MEMBER SHALL BE
7 COMMENCED PURSUANT TO AND IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE
8 FOUR OF THE CIVIL PRACTICE LAW AND RULES BY THE DISTRICT ATTORNEY HAVING
9 JURISDICTION OVER THE OFFENSE, OR BY THE ATTORNEY GENERAL IF THE ATTOR-
10 NEY GENERAL BROUGHT THE UNDERLYING CRIMINAL CHARGE OR THE UNDERLYING
11 CRIMINAL OFFENSE WAS COMMITTED IN VIOLATION OF FEDERAL LAW OR THE LAW OF
12 ANY OTHER STATE. SUCH PROCEEDING SHALL BE COMMENCED WITHIN ONE YEAR OF
13 SUCH CONVICTION.
14 2. PRIOR TO THE COMMENCEMENT OF THE PROCEEDING DESCRIBED IN SUBDIVI-
15 SION ONE OF THIS SECTION, THE DISTRICT ATTORNEY OR THE ATTORNEY GENERAL,
16 AS THE CASE MAY BE, SHALL PROVIDE NOTICE TO THE COMPTROLLER STATING THAT
17 HE OR SHE HAS REASON TO BELIEVE THAT THE PERSON CONVICTED COMMITTED A
18 DESIGNATED FELONY OFFENSE. WITHIN TWENTY DAYS OF RECEIPT OF SUCH NOTICE,
19 THE COMPTROLLER SHALL SUBMIT A NOTICE OF APPLICABILITY TO THE DISTRICT
20 ATTORNEY OR THE ATTORNEY GENERAL AS THE CASE MAY BE. THE NOTICE OF
21 APPLICABILITY SHALL CONTAIN A STATEMENT SPECIFYING WHETHER THE PERSON
22 CONVICTED IS OR HAS BEEN A MEMBER OR RETIRED MEMBER OF THE RETIREMENT
23 SYSTEM AND SHALL DESCRIBE THE RIGHTS AND BENEFITS TO WHICH SUCH PERSON
24 IS OR WILL BE ENTITLED TO FROM SUCH RETIREMENT SYSTEM. NO FORFEITURE
25 PROCEEDING MAY BE COMMENCED BY THE DISTRICT ATTORNEY OR THE ATTORNEY
26 GENERAL UNTIL RECEIPT OF THE NOTICE OF APPLICABILITY AS SET FORTH IN
27 THIS SUBDIVISION.
28 3. UPON COMMENCEMENT OF OR AT ANY TIME DURING THE PENDENCY OF A
29 FORFEITURE PROCEEDING, PURSUANT TO THE PROCEDURE SET FORTH IN SUBDIVI-
30 SION ONE OF SECTION SIX THOUSAND THREE HUNDRED ELEVEN OR SECTION SIX
31 THOUSAND THREE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES, THE
32 COURT MAY ISSUE A TEMPORARY RESTRAINING ORDER OR A PRELIMINARY INJUNC-
33 TION PROHIBITING THE MEMBER OR RETIRED MEMBER FROM RECEIVING ANY RIGHTS
34 OR BENEFITS FROM THE RETIREMENT SYSTEM. A PRELIMINARY INJUNCTION MAY BE
35 GRANTED WHERE THE COURT FINDS THAT THERE IS A SUBSTANTIAL PROBABILITY
36 THAT THE DISTRICT ATTORNEY OR ATTORNEY GENERAL WILL PREVAIL ON THE ISSUE
37 OF FORFEITURE. NO SHOWING OF IRREPARABLE HARM SHALL BE REQUIRED.
38 4. THE BURDEN OF PROOF SHALL BE UPON THE DISTRICT ATTORNEY OR THE
39 ATTORNEY GENERAL, AS THE CASE MAY BE, TO PROVE BY A PREPONDERANCE OF THE
40 EVIDENCE THAT THE CRIME FOR WHICH THE MEMBER OR RETIRED MEMBER WAS
41 CONVICTED WAS A DESIGNATED FELONY OFFENSE AS SUCH TERM IS DEFINED IN
42 SUBDIVISION ONE OF SECTION ONE HUNDRED FIFTY-SIX OF THIS ARTICLE.
43 5. THE COURT MAY ORDER THAT SOME OR ALL OF THE FORFEITED PENSION BE
44 PAID TO A LIEN HOLDER IF THE MEMBER OR RETIRED MEMBER HAS ANY OUTSTAND-
45 ING PRIOR TAX LIENS. THE COURT SHALL ISSUE A WRITTEN DECISION STATING
46 THE BASIS FOR AN ORDER ISSUED PURSUANT TO THIS SUBDIVISION.
47 6. UPON A FINDING BY THE COURT THAT A MEMBER OR RETIRED MEMBER HAS
48 COMMITTED A DESIGNATED FELONY OFFENSE, THE COURT SHALL ISSUE AN ORDER
49 FOR THE FORFEITURE OF THE MEMBER'S OR RETIRED MEMBER'S RIGHTS AND BENE-
50 FITS AS A MEMBER OR RETIRED MEMBER OF THE RETIREMENT SYSTEM AND FOR THE
51 RECOUPMENT OF THE RETIREMENT BENEFITS PAID TO THE MEMBER OR RETIRED
52 MEMBER. ALL ORDERS AND FINDINGS MADE BY THE COURT PURSUANT TO THIS
53 SECTION SHALL BE SERVED UPON THE COMPTROLLER BY THE DISTRICT ATTORNEY
54 HAVING JURISDICTION OVER THE OFFENSE, OR BY THE ATTORNEY GENERAL IF THE
55 ATTORNEY GENERAL BROUGHT THE UNDERLYING CRIMINAL CHARGE.
S. 3185--A 4
1 7. UPON A FINAL DETERMINATION THAT REVERSES OR VACATES THE CONVICTION
2 OR CONVICTIONS OF A DESIGNATED OFFENSE OR OFFENSES, OR IF THE MEMBER OR
3 RETIRED MEMBER IS SUBSEQUENTLY PARDONED BY THE GOVERNOR OR THE PRESIDENT
4 OF THE UNITED STATES, THE MEMBER OR RETIRED MEMBER WHO HAS FORFEITED
5 RETIREMENT RIGHTS AND BENEFITS PURSUANT TO SECTION ONE HUNDRED
6 FIFTY-SEVEN OF THIS ARTICLE SHALL HAVE SUCH RIGHTS AND BENEFITS RETROAC-
7 TIVELY RESTORED, PLUS INTEREST, IF ANY, UPON APPLICATION BY SUCH MEMBER
8 OR RETIRED MEMBER TO THE COURT WITH JURISDICTION OVER THE FORFEITURE
9 PROCEEDING.
10 S 159. MISCELLANEOUS. THE REMEDIES PROVIDED FOR IN THIS ARTICLE ARE
11 NOT INTENDED TO SUBSTITUTE FOR, LIMIT OR SUPERSEDE THE LAWFUL AUTHORITY
12 OF ANY PUBLIC OFFICER, AGENCY OR OTHER PERSON TO ENFORCE ANY OTHER RIGHT
13 OR REMEDY PROVIDED FOR BY LAW.
14 S 2. Subdivision 1 of section 80.00 of the penal law, as amended by
15 chapter 338 of the laws of 1989, is amended to read as follows:
16 1. A sentence to pay a fine for a felony shall be a sentence to pay an
17 amount, fixed by the court, not exceeding the higher of
18 a. five thousand dollars; or
19 b. double the amount of the defendant's gain from the commission of
20 the crime; or
21 c. if the conviction is for any felony defined in article two hundred
22 twenty or two hundred twenty-one of this chapter, according to the
23 following schedule:
24 (i) for A-I felonies, one hundred thousand dollars;
25 (ii) for A-II felonies, fifty thousand dollars;
26 (iii) for B felonies, thirty thousand dollars;
27 (iv) for C felonies, fifteen thousand dollars.
28 When imposing a fine pursuant to the provisions of this paragraph, the
29 court shall consider the profit gained by defendant's conduct, whether
30 the amount of the fine is disproportionate to the conduct in which
31 defendant engaged, its impact on any victims, and defendant's economic
32 circumstances, including the defendant's ability to pay, the effect of
33 the fine upon his or her immediate family or any other persons to whom
34 the defendant owes an obligation of support[.]; OR
35 D. FOR AN ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN SECTION 196.00 OF
36 THIS CHAPTER, OR ANY OFFENSE FOR WHICH THE OFFENDER'S STATUS AS A PUBLIC
37 SERVANT CONSTITUTES AN ELEMENT OF THE OFFENSE AS ENUMERATED IN PARAGRAPH
38 (B) OF SUBDIVISION ONE OF SECTION 196.00 OF THIS CHAPTER, THE COURT, IN
39 ADDITION TO ANY OTHER PENALTY WHICH MAY BE IMPOSED PURSUANT TO LAW,
40 SHALL IMPOSE A FINE IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH A OR
41 B OF THIS SUBDIVISION, WHICHEVER IS GREATER.
42 S 3. Section 195.00 of the penal law, as amended by chapter 906 of the
43 laws of 1990, is amended to read as follows:
44 S 195.00 Official misconduct IN THE THIRD DEGREE.
45 A public servant is guilty of official misconduct IN THE THIRD DEGREE
46 when, with intent to obtain a benefit or deprive another person of a
47 benefit:
48 1. He OR SHE commits an act relating to his OR HER office but consti-
49 tuting an unauthorized exercise of his OR HER official functions, know-
50 ing that such act is unauthorized; or
51 2. He OR SHE knowingly refrains from performing a duty which is
52 imposed upon him OR HER by law or is clearly inherent in the nature of
53 his OR HER office.
54 Official misconduct IN THE THIRD DEGREE is a class [A misdemeanor] E
55 FELONY.
S. 3185--A 5
1 S 4. The penal law is amended by adding two new sections 195.01 and
2 195.02 to read as follows:
3 S 195.01 OFFICIAL MISCONDUCT IN THE SECOND DEGREE.
4 A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE SECOND DEGREE
5 WHEN HE OR SHE COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
6 DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
7 BENEFIT VALUED IN EXCESS OF ONE THOUSAND DOLLARS.
8 OFFICIAL MISCONDUCT IN THE SECOND DEGREE IS A CLASS D FELONY.
9 S 195.02 OFFICIAL MISCONDUCT IN THE FIRST DEGREE.
10 A PUBLIC SERVANT IS GUILTY OF OFFICIAL MISCONDUCT IN THE FIRST DEGREE
11 WHEN HE OR SHE COMMITS THE CRIME OF OFFICIAL MISCONDUCT IN THE THIRD
12 DEGREE AND HE OR SHE OBTAINS ANY BENEFIT OR DEPRIVES ANOTHER PERSON OF A
13 BENEFIT VALUED IN EXCESS OF THREE THOUSAND DOLLARS.
14 OFFICIAL MISCONDUCT IN THE FIRST DEGREE IS A CLASS C FELONY.
15 S 5. The penal law is amended by adding a new article 196 to read as
16 follows:
17 ARTICLE 196
18 ABUSE OF PUBLIC TRUST
19 SECTION 196.00 ABUSE OF PUBLIC TRUST CRIME.
20 S 196.00 ABUSE OF PUBLIC TRUST CRIME.
21 1. (A) A PERSON COMMITS AN ABUSE OF PUBLIC TRUST CRIME WHEN HE OR SHE
22 COMMITS A FELONY OFFENSE AND EITHER:
23 (I) INTENTIONALLY USES HIS OR HER POSITION AS A PUBLIC SERVANT IN A
24 MANNER THAT SIGNIFICANTLY FACILITATES THE COMMISSION OR CONCEALMENT OF
25 THE OFFENSE; OR
26 (II) ATTEMPTS, CONSPIRES OR SOLICITS ANOTHER TO COMMIT ANY FELONY, AND
27 IN SUCH ATTEMPT, CONSPIRACY OR SOLICITATION INTENTIONALLY USES HIS OR
28 HER POSITION AS A PUBLIC SERVANT TO SIGNIFICANTLY FACILITATE THE COMMIS-
29 SION OR CONCEALMENT OF THE OFFENSE.
30 (B) NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION, AN ABUSE OF
31 PUBLIC TRUST CRIME SHALL NOT INCLUDE ANY OFFENSE FOR WHICH THE
32 OFFENDER'S STATUS AS A PUBLIC SERVANT CONSTITUTES AN ELEMENT OF THE
33 OFFENSE, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING PROVISIONS OF THIS
34 CHAPTER: PARAGRAPH (G) OF SUBDIVISION FOUR OF SECTION 135.35 (LABOR
35 TRAFFICKING); SUBDIVISION EIGHT OF SECTION 135.60 (COERCION IN THE
36 SECOND DEGREE); PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION 135.65
37 (COERCION IN THE FIRST DEGREE); PARAGRAPH (C) OF SUBDIVISION TWO OF
38 SECTION 155.40 (GRAND LARCENY IN THE SECOND DEGREE); SECTION 175.40
39 (ISSUING A FALSE CERTIFICATE); SECTION 195.00 (OFFICIAL MISCONDUCT IN
40 THE THIRD DEGREE); SECTION 195.01 (OFFICIAL MISCONDUCT IN THE SECOND
41 DEGREE); SECTION 195.02 (OFFICIAL MISCONDUCT IN THE FIRST DEGREE);
42 SECTION 200.10 (BRIBE RECEIVING IN THE THIRD DEGREE); SECTION 200.11
43 (BRIBE RECEIVING IN THE SECOND DEGREE); SECTION 200.12 (BRIBE RECEIVING
44 IN THE FIRST DEGREE); SECTION 200.25 (RECEIVING REWARD FOR OFFICIAL
45 MISCONDUCT IN THE SECOND DEGREE); SECTION 200.27 (RECEIVING REWARD FOR
46 OFFICIAL MISCONDUCT IN THE FIRST DEGREE); SECTION 200.35 (RECEIVING
47 UNLAWFUL GRATUITIES); SECTION 200.50 (BRIBE RECEIVING FOR PUBLIC
48 OFFICE); PARAGRAPH (G) OF SUBDIVISION FIVE OF SECTION 230.34 (SEX TRAF-
49 FICKING); OR ANY ATTEMPT OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING
50 OFFENSES.
51 2. WHEN A PERSON IS CONVICTED OF AN ABUSE OF TRUST CRIME PURSUANT TO
52 SUBDIVISION ONE OF THIS SECTION AND THE SPECIFIED OFFENSE IS A CLASS C,
53 D OR E FELONY, THE CRIME SHALL BE DEEMED TO BE ONE CATEGORY HIGHER THAN
54 THE SPECIFIED OFFENSE THE DEFENDANT COMMITTED, OR ONE CATEGORY HIGHER
55 THAN THE OFFENSE LEVEL APPLICABLE TO THE DEFENDANT'S CONVICTION FOR AN
S. 3185--A 6
1 ATTEMPT OR CONSPIRACY TO COMMIT A SPECIFIED OFFENSE, WHICHEVER IS APPLI-
2 CABLE.
3 3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
4 CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
5 SPECIFIED OFFENSE IS A CLASS B FELONY:
6 (A) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
7 SIX YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.00 OF
8 THIS CHAPTER;
9 (B) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST EIGHT YEARS
10 IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.02 OF THIS CHAPTER;
11 (C) THE TERM OF THE DETERMINATE SENTENCE MUST BE AT LEAST TWELVE YEARS
12 IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.04 OF THIS CHAPTER;
13 (D) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE MUST BE AT LEAST
14 FOUR YEARS IF THE DEFENDANT IS SENTENCED PURSUANT TO SECTION 70.05 OF
15 THIS CHAPTER; AND
16 (E) THE MAXIMUM TERM OF THE INDETERMINATE SENTENCE OR THE TERM OF THE
17 DETERMINATE SENTENCE MUST BE AT LEAST TEN YEARS IF THE DEFENDANT IS
18 SENTENCED PURSUANT TO SECTION 70.06 OF THIS CHAPTER.
19 4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WHEN A PERSON IS
20 CONVICTED OF A CRIME PURSUANT TO SUBDIVISION ONE OF THIS SECTION AND THE
21 SPECIFIED OFFENSE IS A CLASS A-1 FELONY, THE MINIMUM PERIOD OF THE INDE-
22 TERMINATE SENTENCE SHALL BE NOT LESS THAN TWENTY YEARS.
23 S 6. Subdivision 4 of section 200.50 of the criminal procedure law, as
24 amended by chapter 7 of the laws of 2007, is amended to read as follows:
25 4. A statement in each count that the grand jury, or, where the accu-
26 satory instrument is a superior court information, the district attor-
27 ney, accuses the defendant or defendants of a designated offense,
28 provided that in any prosecution under article four hundred eighty-five
29 of the penal law, the designated offense shall be the specified offense,
30 as defined in subdivision three of section 485.05 of the penal law,
31 followed by the phrase "as a hate crime", and provided further that in
32 any prosecution under section 490.25 of the penal law, the designated
33 offense shall be the specified offense, as defined in subdivision three
34 of section 490.05 of the penal law, followed by the phrase "as a crime
35 of terrorism"; and provided further that in any prosecution under
36 section 130.91 of the penal law, the designated offense shall be the
37 specified offense, as defined in subdivision two of section 130.91 of
38 the penal law, followed by the phrase "as a sexually motivated felony";
39 AND PROVIDED FURTHER THAT IN ANY PROSECUTION UNDER ARTICLE ONE HUNDRED
40 NINETY-SIX OF THE PENAL LAW, THE DESIGNATED OFFENSE SHALL BE THE DESIG-
41 NATED FELONY OFFENSE, AS DEFINED IN SUBDIVISION TWO OF SECTION 196.00 OF
42 THE PENAL LAW, FOLLOWED BY THE PHRASE "AS AN ABUSE OF PUBLIC TRUST
43 CRIME"; and
44 S 7. Subdivision 7 of section 200.50 of the criminal procedure law is
45 amended by adding a new paragraph (f) to read as follows:
46 (F) IN THE CASE OF AN ABUSE OF PUBLIC TRUST CRIME, AS DEFINED IN
47 SECTION 196.00 OF THE PENAL LAW, SPECIFIES, AS APPLICABLE, THAT THE
48 DEFENDANT OR DEFENDANTS COMMITTED, OR ATTEMPTED, CONSPIRED OR SOLICITED
49 ANOTHER TO COMMIT, A FELONY AND INTENTIONALLY USED HIS OR HER POSITION
50 AS A PUBLIC SERVANT IN A MANNER THAT SIGNIFICANTLY FACILITATED THE
51 COMMISSION OR CONCEALMENT OF THE OFFENSE; AND
52 S 8. This act shall take effect on the one hundred twentieth day after
53 it shall have become a law.
