STATE OF NEW YORK
________________________________________________________________________
100
2019-2020 Regular Sessions
IN SENATE
(Prefiled)
January 9, 2019
___________
Introduced by Sen. KAMINSKY -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to bribery and abuse of public trust
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Section 200.03 of the penal law, as amended by section 18
2 of subpart A of part H of chapter 55 of the laws of 2014, is amended to
3 read as follows:
4 § 200.03 Bribery in the second degree.
5 A person is guilty of bribery in the second degree when he confers, or
6 offers or agrees to confer, any benefit valued in excess of [five] one
7 thousand dollars upon a public servant [upon an agreement or understand-
8 ing] with an intent to influence that such public servant's vote, opin-
9 ion, judgment, action, decision or exercise of discretion as a public
10 servant will thereby be influenced.
11 Bribery in the second degree is a class C felony.
12 § 2. Section 200.04 of the penal law, as amended by section 19 of
13 subpart A of part H of chapter 55 of the laws of 2014, is amended to
14 read as follows:
15 § 200.04 Bribery in the first degree.
16 A person is guilty of bribery in the first degree when the person
17 confers, or offers or agrees to confer: (1) any benefit upon a public
18 servant [upon an agreement or understanding] with an intent to influence
19 that such public servant's vote, opinion, judgment, action, decision or
20 exercise of discretion as a public servant will thereby be influenced in
21 the investigation, arrest, detention, prosecution or incarceration of
22 any person for the commission or alleged commission of a class A felony
23 defined in article two hundred twenty of this part or an attempt to
24 commit any such class A felony; or (2) any benefit valued in excess of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03415-01-9
S. 100 2
1 [one hundred] three thousand dollars upon a public servant [upon an
2 agreement or understanding] with an intent to influence that such public
3 servant's vote, opinion, judgment, action, decision or exercise of
4 discretion as a public servant will thereby be influenced.
5 Bribery in the first degree is a class B felony.
6 § 3. Section 200.00 of the penal law, as amended by chapter 833 of the
7 laws of 1986, is amended to read as follows:
8 § 200.00 Bribery in the third degree.
9 A person is guilty of bribery in the third degree when he confers, or
10 offers or agrees to confer, any benefit upon a public servant [upon an
11 agreement or understanding] with an intent to influence that such public
12 servant's vote, opinion, judgment, action, decision or exercise of
13 discretion as a public servant will thereby be influenced.
14 Bribery in the third degree is a class D felony.
15 § 4. Subdivision 1 of section 80.00 of the penal law, as amended by
16 section 27 of subpart A of part H of chapter 55 of the laws of 2014, is
17 amended to read as follows:
18 1. A sentence to pay a fine for a felony shall be a sentence to pay an
19 amount, fixed by the court, not exceeding the higher of
20 a. five thousand dollars; or
21 b. double the amount of the defendant's gain from the commission of
22 the crime or, if the defendant is convicted of a crime defined in arti-
23 cle four hundred ninety-six of this chapter, any higher amount not
24 exceeding three times the amount of the defendant's gain from the
25 commission of such offense; or
26 c. if the conviction is for any felony defined in article two hundred
27 twenty or two hundred twenty-one of this chapter, according to the
28 following schedule:
29 (i) for A-I felonies, one hundred thousand dollars;
30 (ii) for A-II felonies, fifty thousand dollars;
31 (iii) for B felonies, thirty thousand dollars;
32 (iv) for C felonies, fifteen thousand dollars.
33 When imposing a fine pursuant to the provisions of this paragraph, the
34 court shall consider the profit gained by defendant's conduct, whether
35 the amount of the fine is disproportionate to the conduct in which
36 defendant engaged, its impact on any victims, and defendant's economic
37 circumstances, including the defendant's ability to pay, the effect of
38 the fine upon his or her immediate family or any other persons to whom
39 the defendant owes an obligation of support; or
40 d. for an abuse of public trust crime, as defined in section 196.00 of
41 this chapter, or any offense for which the offender's status as a public
42 servant constitutes an element of the offense as enumerated in paragraph
43 (b) of subdivision one of section 196.00 of this chapter, the court, in
44 addition to any other penalty which may be imposed pursuant to law,
45 shall impose a fine in accordance with the provisions of paragraph a or
46 b of this subdivision, whichever is greater.
47 § 5. Section 195.00 of the penal law, as amended by chapter 906 of the
48 laws of 1990, is amended to read as follows:
49 § 195.00 Official misconduct in the third degree.
50 A public servant is guilty of official misconduct in the third degree
51 when, with intent to obtain a benefit or deprive another person of a
52 benefit:
53 1. He or she commits an act relating to his or her office but consti-
54 tuting an unauthorized exercise of his or her official functions, know-
55 ing that such act is unauthorized; or
S. 100 3
1 2. He or she knowingly refrains from performing a duty which is
2 imposed upon him or her by law or is clearly inherent in the nature of
3 his or her office.
4 Official misconduct in the third degree is a class [A misdemeanor] E
5 felony.
6 § 6. The penal law is amended by adding two new sections 195.03 and
7 195.04 to read as follows:
8 § 195.03 Official misconduct in the second degree.
9 A public servant is guilty of official misconduct in the second degree
10 when he or she commits the crime of official misconduct in the third
11 degree and he or she obtains any benefit or deprives another person of a
12 benefit valued in excess of one thousand dollars.
13 Official misconduct in the second degree is a class D felony.
14 § 195.04 Official misconduct in the first degree.
15 A public servant is guilty of official misconduct in the first degree
16 when he or she commits the crime of official misconduct in the third
17 degree and he or she obtains any benefit or deprives another person of a
18 benefit valued in excess of three thousand dollars.
19 Official misconduct in the first degree is a class C felony.
20 § 7. The penal law is amended by adding a new article 196 to read as
21 follows:
22 ARTICLE 196
23 ABUSE OF PUBLIC TRUST
24 Section 196.00 Abuse of public trust crime.
25 § 196.00 Abuse of public trust crime.
26 1. (a) A person commits an abuse of public trust crime when he or she
27 commits a felony offense and either:
28 (i) intentionally uses his or her position as a public servant in a
29 manner that significantly facilitates the commission or concealment of
30 the offense; or
31 (ii) attempts, conspires or solicits another to commit any felony, and
32 in such attempt, conspiracy or solicitation intentionally uses his or
33 her position as a public servant to significantly facilitate the commis-
34 sion or concealment of the offense.
35 (b) Notwithstanding paragraph (a) of this subdivision, an abuse of
36 public trust crime shall not include any offense for which the
37 offender's status as a public servant constitutes an element of the
38 offense, including, but not limited to, the following provisions of this
39 chapter: paragraph (g) of subdivision three of section 135.35 (labor
40 trafficking); subdivision eight of section 135.60 (coercion in the third
41 degree); section 135.61 (coercion in the second degree); paragraph (c)
42 of subdivision two of section 135.65 (coercion in the first degree);
43 paragraph (c) of subdivision two of section 155.40 (grand larceny in the
44 second degree); section 175.40 (issuing a false certificate); section
45 195.00 (official misconduct in the third degree); section 195.03 (offi-
46 cial misconduct in the second degree); section 195.04 (official miscon-
47 duct in the first degree); section 200.10 (bribe receiving in the third
48 degree); section 200.11 (bribe receiving in the second degree); section
49 200.12 (bribe receiving in the first degree); section 200.25 (receiving
50 reward for official misconduct in the second degree); section 200.27
51 (receiving reward for official misconduct in the first degree); section
52 200.35 (receiving unlawful gratuities); section 200.50 (bribe receiving
53 for public office); paragraph (g) of subdivision five of section 230.34
54 (sex trafficking); or any attempt or conspiracy to commit any of the
55 foregoing offenses.
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1 2. When a person is convicted of an abuse of public trust crime pursu-
2 ant to subdivision one of this section and the specified offense is a
3 class C, D or E felony, the crime shall be deemed to be one category
4 higher than the specified offense the defendant committed, or one cate-
5 gory higher than the offense level applicable to the defendant's
6 conviction for an attempt or conspiracy to commit a specified offense,
7 whichever is applicable.
8 3. Notwithstanding any other provision of law, when a person is
9 convicted of a crime pursuant to subdivision one of this section and the
10 specified offense is a class B felony:
11 (a) the maximum term of the indeterminate sentence must be at least
12 six years if the defendant is sentenced pursuant to section 70.00 of
13 this chapter;
14 (b) the term of the determinate sentence must be at least eight years
15 if the defendant is sentenced pursuant to section 70.02 of this chapter;
16 (c) the term of the determinate sentence must be at least twelve years
17 if the defendant is sentenced pursuant to section 70.04 of this chapter;
18 (d) the maximum term of the indeterminate sentence must be at least
19 four years if the defendant is sentenced pursuant to section 70.05 of
20 this chapter; and
21 (e) the maximum term of the indeterminate sentence or the term of the
22 determinate sentence must be at least ten years if the defendant is
23 sentenced pursuant to section 70.06 of this chapter.
24 4. Notwithstanding any other provision of law, when a person is
25 convicted of a crime pursuant to subdivision one of this section and the
26 specified offense is a class A-I felony, the minimum period of the inde-
27 terminate sentence shall be not less than twenty years.
28 § 8. Subdivision 4 of section 200.50 of the criminal procedure law, as
29 amended by section 15 of subpart A of part H of chapter 55 of the laws
30 of 2014, is amended to read as follows:
31 4. A statement in each count that the grand jury, or, where the accu-
32 satory instrument is a superior court information, the district attor-
33 ney, accuses the defendant or defendants of a designated offense,
34 provided that in any prosecution under article four hundred eighty-five
35 of the penal law, the designated offense shall be the specified offense,
36 as defined in subdivision three of section 485.05 of the penal law,
37 followed by the phrase "as a hate crime", and provided further that in
38 any prosecution under section 490.25 of the penal law, the designated
39 offense shall be the specified offense, as defined in subdivision three
40 of section 490.05 of the penal law, followed by the phrase "as a crime
41 of terrorism"; and provided further that in any prosecution under
42 section 130.91 of the penal law, the designated offense shall be the
43 specified offense, as defined in subdivision two of section 130.91 of
44 the penal law, followed by the phrase "as a sexually motivated felony";
45 and provided further that in any prosecution under section 496.06 of the
46 penal law, the designated offense shall be the specified offense, as
47 defined in subdivision two of such section, followed by the phrase "as a
48 public corruption crime"; and provided further that in any prosecution
49 under article one hundred ninety-six of the penal law, the designated
50 offense shall be the designated felony offense, as defined in subdivi-
51 sion two of section 196.00 of the penal law, followed by the phrase "as
52 an abuse of public trust crime"; and
53 § 9. Subdivision 7 of section 200.50 of the criminal procedure law is
54 amended by adding a new paragraph (f) to read as follows:
55 (f) in the case of an abuse of public trust crime, as defined in
56 section 196.00 of the penal law, specifies, as applicable, that the
S. 100 5
1 defendant or defendants committed, or attempted, conspired or solicited
2 another to commit, a felony and intentionally used his or her position
3 as a public servant in a manner that significantly facilitated the
4 commission or concealment of the offense; and
5 § 10. This act shall take effect immediately.