Bill Text: NY S01873 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to bribery offenses and defenses; relates to commercial bribing; establishes the crimes of official misconduct in the first and second degrees, abuse of public trust crime and undisclosed self-dealing in the first and second degrees.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO CODES [S01873 Detail]
Download: New_York-2017-S01873-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1873 2017-2018 Regular Sessions IN SENATE January 11, 2017 ___________ Introduced by Sen. AVELLA -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to making technical corrections to the descriptions of certain bribery offenses and defenses; to amend the penal law, in relation to commercial bribing; 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; and to amend the penal law, in relation to undisclosed self-dealing The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 200.00 of the penal law, as amended by chapter 833 2 of the laws of 1986, is amended to read as follows: 3 § 200.00 Bribery in the third degree. 4 A person is guilty of bribery in the third degree when he or she 5 confers, or offers or agrees to confer, any benefit upon a public serv- 6 ant [upon an agreement or understanding that] with the intent to influ- 7 ence such public servant's vote, opinion, judgment, action, decision or 8 exercise of discretion as a public servant [will thereby be influenced]. 9 Bribery in the third degree is a class D felony. 10 § 2. Section 200.03 of the penal law, as amended by section 18 of 11 subpart A of part H of chapter 55 of the laws of 2014, is amended to 12 read as follows: 13 § 200.03 Bribery in the second degree. 14 A person is guilty of bribery in the second degree when he or she 15 confers, or offers or agrees to confer, any benefit valued in excess of 16 five thousand dollars upon a public servant [upon an agreement or under-17standing that] with the intent to influence such public servant's vote, 18 opinion, judgment, action, decision or exercise of discretion as a 19 public servant [will thereby be influenced]. 20 Bribery in the second degree is a class C felony. 21 § 3. Section 200.04 of the penal law, as amended by section 19 of 22 subpart A of part H of chapter 55 of the laws of 2014, is amended to 23 read as follows: 24 § 200.04 Bribery in the first degree. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01209-01-7S. 1873 2 1 A person is guilty of bribery in the first degree when the person 2 confers, or offers or agrees to confer: (1) any benefit upon a public 3 servant [upon an agreement or understanding that] with the intent to 4 influence such public servant's vote, opinion, judgment, action, deci- 5 sion or exercise of discretion as a public servant [will thereby be6influenced] in the investigation, arrest, detention, prosecution or 7 incarceration of any person for the commission or alleged commission of 8 a class A felony defined in article two hundred twenty of this part or 9 an attempt to commit any such class A felony; or (2) any benefit valued 10 in excess of one hundred thousand dollars upon a public servant [upon an11agreement or understanding that] with the intent to influence such 12 public servant's vote, opinion, judgment, action, decision or exercise 13 of discretion as a public servant [will thereby be influenced]. 14 Bribery in the first degree is a class B felony. 15 § 4. Section 200.05 of the penal law is amended to read as follows: 16 § 200.05 Bribery; defense. 17 In any prosecution for bribery[,]: (1) it is a defense that the 18 defendant conferred or agreed to confer the benefit involved upon the 19 public servant involved as a result of conduct of the latter constitut- 20 ing larceny committed by means of extortion, or an attempt to commit the 21 same, or coercion, or an attempt to commit coercion[.]; and (2) it is 22 also a defense that the benefit that the defendant conferred, or offered 23 or agreed to confer, upon the public servant was a legitimate campaign 24 contribution, unless such contribution was made upon an agreement or 25 understanding that such public servant's vote, opinion, judgment, 26 action, decision or exercise of discretion as a public servant would 27 thereby be influenced. 28 § 5. Section 180.03 of the penal law, as amended by chapter 577 of the 29 laws of 1983, is amended to read as follows: 30 § 180.03 Commercial bribing in the first degree. 31 A person is guilty of commercial bribing in the first degree when he 32 or she confers, or offers or agrees to confer, any benefit upon any 33 employee, agent or fiduciary without the consent of the latter's employ- 34 er or principal, with intent to influence his or her conduct in relation 35 to his or her employer's or principal's affairs, and when the value of 36 the benefit conferred or offered or agreed to be conferred exceeds one 37 thousand dollars [and causes economic harm to the employer or principal38in an amount exceeding two hundred fifty dollars]. 39 Commercial bribing in the first degree is a class E felony. 40 § 6. Section 180.08 of the penal law, as amended by chapter 577 of the 41 laws of 1983, is amended to read as follows: 42 § 180.08 Commercial bribe receiving in the first degree. 43 An employee, agent or fiduciary is guilty of commercial bribe receiv- 44 ing in the first degree when, without the consent of his or her employer 45 or principal, he or she solicits, accepts or agrees to accept any bene- 46 fit from another person upon an agreement or understanding that such 47 benefit will influence his or her conduct in relation to his or her 48 employer's or principal's affairs, and when the value of the benefit 49 solicited, accepted or agreed to be accepted exceeds one thousand 50 dollars [and causes economic harm to the employer or principal in an51amount exceeding two hundred fifty dollars]. 52 Commercial bribe receiving in the first degree is a class E felony. 53 § 7. Section 195.00 of the penal law, as amended by chapter 906 of the 54 laws of 1990, is amended to read as follows: 55 § 195.00 Official misconduct in the third degree.S. 1873 3 1 A public servant is guilty of official misconduct in the third degree 2 when, with intent to obtain a benefit or deprive another person of a 3 benefit: 4 1. He or she commits an act relating to his or her office but consti- 5 tuting an unauthorized exercise of his or her official functions, know- 6 ing that such act is unauthorized; or 7 2. He or she knowingly refrains from performing a duty which is 8 imposed upon him or her by law or is clearly inherent in the nature of 9 his or her office. 10 Official misconduct in the third degree is a class A misdemeanor. 11 § 8. The penal law is amended by adding two new sections 195.01 and 12 195.03 to read as follows: 13 § 195.01 Official misconduct in the second degree. 14 A public servant is guilty of official misconduct in the second degree 15 when he or she commits the crime of official misconduct in the third 16 degree and he or she obtains any benefit or deprives another person of a 17 benefit valued in excess of one thousand dollars. 18 Official misconduct in the second degree is a class E felony. 19 § 195.03 Official misconduct in the first degree. 20 A public servant is guilty of official misconduct in the first degree 21 when he or she commits the crime of official misconduct in the third 22 degree and he or she obtains any benefit or deprives another person of a 23 benefit valued in excess of three thousand dollars. 24 Official misconduct in the first degree is a class D felony. 25 § 9. The penal law is amended by adding a new article 196 to read as 26 follows: 27 ARTICLE 196 28 ABUSE OF PUBLIC TRUST 29 Section 196.00 Abuse of public trust crime. 30 § 196.00 Abuse of public trust crime. 31 1. (a) A person commits an abuse of public trust crime when he or she 32 commits a felony offense and either: 33 (i) intentionally uses his or her position as a public servant in a 34 manner that significantly facilitates the commission or concealment of 35 the offense; or 36 (ii) attempts, conspires or solicits another to commit any felony, and 37 in such attempt, conspiracy or solicitation intentionally uses his or 38 her position as a public servant to significantly facilitate the commis- 39 sion or concealment of the offense. 40 (b) Notwithstanding paragraph (a) of this subdivision, an abuse of 41 public trust crime shall not include any offense for which the 42 offender's status as a public servant constitutes an element of the 43 offense, including, but not limited to, the following provisions of this 44 chapter: paragraph (g) of subdivision four of section 135.35 (labor 45 trafficking); subdivision eight of section 135.60 (coercion in the 46 second degree); paragraph (c) of subdivision two of section 135.65 47 (coercion in the first degree); paragraph (c) of subdivision two of 48 section 155.40 (grand larceny in the second degree); section 175.40 49 (issuing a false certificate); section 195.00 (official misconduct in 50 the third degree); section 195.01 (official misconduct in the second 51 degree); section 195.03 (official misconduct in the first degree); 52 section 200.10 (bribe receiving in the third degree); section 200.11 53 (bribe receiving in the second degree); section 200.12 (bribe receiving 54 in the first degree); section 200.25 (receiving reward for official 55 misconduct in the second degree); section 200.27 (receiving reward for 56 official misconduct in the first degree); section 200.35 (receivingS. 1873 4 1 unlawful gratuities); section 200.50 (bribe receiving for public 2 office); paragraph (g) of subdivision five of section 230.34 (sex traf- 3 ficking); or any attempt or conspiracy to commit any of the foregoing 4 offenses. 5 2. When a person is convicted of an abuse of public trust crime pursu- 6 ant to subdivision one of this section and the specified offense is a 7 class C, D or E felony, the crime shall be deemed to be one category 8 higher than the specified offense the defendant committed, or one cate- 9 gory higher than the offense level applicable to the defendant's 10 conviction for an attempt or conspiracy to commit a specified offense, 11 whichever is applicable. 12 3. Notwithstanding any other provision of law, when a person is 13 convicted of a crime pursuant to subdivision one of this section and the 14 specified offense is a class B felony: 15 (a) the maximum term of the indeterminate sentence must be at least 16 six years if the defendant is sentenced pursuant to section 70.00 of 17 this chapter; 18 (b) the term of the determinate sentence must be at least eight years 19 if the defendant is sentenced pursuant to section 70.02 of this chapter; 20 (c) the term of the determinate sentence must be at least twelve years 21 if the defendant is sentenced pursuant to section 70.04 of this chapter; 22 (d) the maximum term of the indeterminate sentence must be at least 23 four years if the defendant is sentenced pursuant to section 70.05 of 24 this chapter; and 25 (e) the maximum term of the indeterminate sentence or the term of the 26 determinate sentence must be at least ten years if the defendant is 27 sentenced pursuant to section 70.06 of this chapter. 28 4. Notwithstanding any other provision of law, when a person is 29 convicted of a crime pursuant to subdivision one of this section and the 30 specified offense is a class A-I felony, the minimum period of the inde- 31 terminate sentence shall be not less than twenty years. 32 § 10. Subdivision 4 of section 200.50 of the criminal procedure law, 33 as amended by section 15 of subpart A of part H of chapter 55 of the 34 laws of 2014, is amended to read as follows: 35 4. A statement in each count that the grand jury, or, where the accu- 36 satory instrument is a superior court information, the district attor- 37 ney, accuses the defendant or defendants of a designated offense, 38 provided that in any prosecution under article four hundred eighty-five 39 of the penal law, the designated offense shall be the specified offense, 40 as defined in subdivision three of section 485.05 of the penal law, 41 followed by the phrase "as a hate crime", and provided further that in 42 any prosecution under section 490.25 of the penal law, the designated 43 offense shall be the specified offense, as defined in subdivision three 44 of section 490.05 of the penal law, followed by the phrase "as a crime 45 of terrorism"; and provided further that in any prosecution under 46 section 130.91 of the penal law, the designated offense shall be the 47 specified offense, as defined in subdivision two of section 130.91 of 48 the penal law, followed by the phrase "as a sexually motivated felony"; 49 and provided further that in any prosecution under section 496.06 of the 50 penal law, the designated offense shall be the specified offense, as 51 defined in subdivision two of such section, followed by the phrase "as a 52 public corruption crime"; and provided further that in any prosecution 53 under article one hundred ninety-six of the penal law, the designated 54 offense shall be the designated felony offense, as defined in subdivi- 55 sion two of section 196.00 of the penal law, followed by the phrase "as 56 an abuse of public trust crime"; andS. 1873 5 1 § 11. Subdivision 7 of section 200.50 of the criminal procedure law is 2 amended by adding a new paragraph (f) to read as follows: 3 (f) in the case of an abuse of public trust crime, as defined in 4 section 196.00 of the penal law, specifies, as applicable, that the 5 defendant or defendants committed, or attempted, conspired or solicited 6 another to commit, a felony and intentionally used his or her position 7 as a public servant in a manner that significantly facilitated the 8 commission or concealment of the offense; and 9 § 12. The penal law is amended by adding two new sections 195.30 and 10 195.35 to read as follows: 11 § 195.30 Undisclosed self-dealing in the second degree. 12 A person is guilty of undisclosed self-dealing in the second degree 13 when, being a public servant, he or she intentionally engages in conduct 14 or a course of conduct in his or her official capacity in connection 15 with the award of a public contract or public grant or other effort to 16 obtain or retain public business or public funds that is intended to 17 confer an undisclosed benefit on himself, herself, a spouse, domestic 18 partner, child, parent, or sibling of the public servant, a person with 19 whom a public servant has a business or other financial relationship, or 20 a firm in which the public servant has a present or potential interest 21 and thereby obtains or attempts to obtain a benefit for himself, 22 herself, a spouse, domestic partner, child, parent, or sibling of the 23 public servant, a person with whom a public servant has a business or 24 other financial relationship, or a firm in which the public servant has 25 a present or potential interest with a value in excess of three thousand 26 dollars. A benefit is disclosed if its existence is made known prior to 27 the alleged wrongful conduct to either (i) the relevant state or local 28 ethics commission or (ii) the official responsible for the public serv- 29 ant's appointment to his or her position, provided that person is not a 30 participant in the alleged wrongful conduct. 31 Undisclosed self-dealing in the second degree is a class D felony. 32 § 195.35 Undisclosed self-dealing in the first degree. 33 A person is guilty of undisclosed self-dealing in the first degree 34 when, being a public servant, he or she intentionally engages in conduct 35 or a course of conduct in his or her official capacity in connection 36 with the award of a public contract or public grant or other effort to 37 obtain or retain public business or public funds that is intended to 38 confer an undisclosed benefit on himself, herself, a spouse, domestic 39 partner, child, parent, or sibling of the public servant, a person with 40 whom a public servant has a business or other financial relationship, or 41 a firm in which the public servant has a present or potential interest 42 and thereby obtains or attempts to obtain a benefit for himself, 43 herself, a spouse, domestic partner, child, parent, or sibling of the 44 public servant, a person with whom a public servant has a business or 45 other financial relationship, or a firm in which the public servant has 46 a present or potential interest with a value in excess of ten thousand 47 dollars. A benefit is disclosed if its existence is made known prior to 48 the alleged wrongful conduct to either (i) the relevant state or local 49 ethics commission or (ii) the official responsible for the public serv- 50 ant's appointment to his or her position, provided that person is not a 51 participant in the alleged wrongful conduct. 52 Undisclosed self-dealing in the first degree is a class C felony. 53 § 13. This act shall take effect on the first of November next 54 succeeding the date on which it shall have become a law.
