Enacts the "anti-organized retail theft act"

* Part C would codify state court rulings which allow prosecutors to aggregate or add together numerous petite larcenies that are part of a connected organized crime spree thus allowing prosecutors to charge grand larceny in the 4th Degree (a Class E Felony with up to 4 years in prison);

* Part D would make the use of stores emergency exit as means of escape by organized theft rings a class E felony (1 to 4 years) thereby providing store security and prosecutors another weapon in curtailing these activities;

* Part E would enhance penalties for theft of property by a person who possesses an item designed to block or otherwise override security markings, tags, or attachments placed on property offered for sale in a retail mercantile establishment otherwise known as "booster bags";

* Part F amends the penal law to make it a criminal offense to transfer, make, alter, counterfeit or reproduce a retail sales receipt or universal product code when the individual knows that the sales receipt or universal product code is counterfeit. This legislation would also make it a class E felony to possess a device for the manufacture of fraudulent retail product receipt or universal product codes;

* Part G would establish that no itinerant vendor, except for a manufacturer, an authorized manufacturer's representative, or an authorized distributor, shall offer for sale baby food, non-prescription drugs, cosmetics, or batteries;

* Part H increases the penalties against those thieves who set up Internet accounts for such a purpose.

Summary of provisions

Section 1: Title Part A: Section 1; Adds 155.43 Retail Theft and 155.44 Leader of an organized retail theft enterprise to the Penal Law; provides definitions thereof: Section 155.43, Sub 1 Definitions; Sub 2 Defines Shoplifting; Sub 3 Defines Shoplifting as grand larceny in the 2nd Degree; Sub 4 Legal presumptions; Sub 5 Apprehension and detention.

Part A: Section 2; Effective date.

Part B: Section 1; Adds Section 70.16 Sentences of imprisonment or fines for a pattern of criminal offenses to the penal law. Defines a pattern of criminal offenses with relation to organized retail theft; Authorizes sentencing, fines and imprisonment by courts; Allows District Attorney the to have jurisdiction over the criminal offense of organized retail theft when at least one of the occurrences takes place in that county.

Part B: Section 2; Effective Date.

Part C: Section 1; Aggregation. Amends paragraph 1 of section 155.30 of the penal law by adding a new subparagraph 1(a) and 1(b). This legislation would codify state court rulings which allow prosecutors to aggregate or add together numerous petite larcenies that are part of a connected organized crime spree thus allowing prosecutors to charge grand larceny in the 4th Degree (a Class E Felony with up to 4 years in prison).

Part C: Section 2; Effective Date.

Part D: Section 1; Emergency Exits. Amends section 155.30 of the penal law by adding a new subdivision 13.

Part D: Section 2; Effective Date.

Part E: Section 1; Booster Bags. Adds a new subdivision 12 to Section 155.30 of the Penal Law to define "anti-security device" and render it a crime to use same in theft of property. Amends Section 170.47 of the Penal Law to tender it a class A misdemeanor to possess an anti-security device with intent to use same to steal property at a retail mercantile establishment.

Part E: Section 2; Effective Date.

Part F: Section 1; UPC Fraud: Adds 4 new sections to the penal code as follows: Section 165.80 contains definitions with respect to the sections that follow. Section 165.81 creates a crime of retail sales receipt or universal product code fraud in the second degree which entails use, transfer, alteration, counterfeit or reproduction of a retail sales receipt or universal product code when the defendant knows such to be counterfeit and does so with the intent to deceive or defraud. This crime is a class A misdemeanor. Section 165.82 creates the crime of retail sales receipt or universal product code fraud in the first degree which is a class E felony. A person is guilty of this offense when with intent to deceive or defraud, he uses, transfers, makes, alters, counterfeits or reproduces 15 or more retail sales receipts or universal product codes, or combination thereof, knowing such to be counterfeit. Section 165.83 creates a class E felony of possession of a fraudulent retail sales receipt or universal product code manufacturing device.

Part F: Section 2; Effective Date.

Part G: Section 1; Itinerant Vendor. Amends § 38 of the General Business Law to specifically define the following items -- baby food, non-prescription drugs, cosmetics, and batteries -- as products that may not be sold in flea markets unless sold by a manufacturer, an

authorized manufacturer's representative, or an authorized distributor.

Part G: Section 2; Effective Date.

Part H: Section 1 and 2; Efencing. Amends section 155.30 of the penal law by adding a new subdivision 12 and 13. Sub 12: Adds to grand larceny in the 4th degree the aggregate value of selling stolen items in the online marketplace and defines online marketplace.

Part H: Section 3; Effective Date.

Existing law

Currently, petite larceny (shoplifting items under $1,000) is a misdemeanor which could result in up to one year in jail. While the courts have allowed aggregation of petite larcenies that are part of a connected organized crime spree, there are no laws making this determination a permanent part of or New York's Penal-Law. § 155.30 Grand Larceny in the fourth degree. A person is guilty of grand larceny in the fourth degree when he steals property and when: 1. The value of the property exceeds one thousand dollars; or 2. The property consists of a public record, writing or instrument kept, tiled or deposited according to law with or in the keeping of any public office or public servant; or 3. The property consists of secret scientific material; or 4. The property consists of a credit card or debit card; or 5. The property, regardless of its nature and value, is taken from the person of another; or 6. The property, regardless of its nature and value, is obtained by extortion; or 7. The property consists of one or more firearms, rifles or shotguns, as such terms are defined in section 265.00 of this chapter; or 8. The value of the property exceeds one hundred dollars and the property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law, other than a motorcycle, as defined in section one hundred twenty-three of such law; or 9. The property consists of a scroll, religious vestment, vessel or other item of property having a value of at least one hundred dollars kept for or used in connection with religious worship in any building or structure used as a place of religious worship by a religious corporation, as incorporated under the religious corporations law or the education law. 10. The property consists of an access device which the person intends to use unlawfully to obtain telephone service. 11. The property consists of anhydrous ammonia or liquified ammonia gas and the actor intends to use, or knows another person intends to use, such anhydrous ammonia or liquified ammonia gas to manufacture methamphetamine. Grand larceny in the fourth degree is a class E felony.

Justification

Organized retail crime comprises a wide spectrum of high-volume and highly organized theft rings that cost New York retailers hundreds of millions of dollars annually and, more importantly, compromise the health, safety, and wallet of unsuspecting New York consumers. And for every item stolen, New York's state and local governments lose out on sales tax revenue - again, adding up to millions annually. Organized retail theft is the most serious security issue facing many retail merchants, including apparel and accessory retailers, mass merchandisers, do-it-yourself stores, drug stores, and supermarkets. It's a crime that has grown substantially over the past decade, with the emergence of organized criminal theft at an unprecedented level. Estimates from retail and law enforcement suggest the annual loss to organized retail theft in all retail sectors across the country combines to reach some $31 billion. Retailers are forced to offset these significant costs through higher prices - meaning that honest consumers are forced to endure the impact of organized retail theft and professional shoplifters. Theft rings tend to focus on over-the-counter drugs, pain relievers, health and beauty aids, and clothing of all kinds. These items have considerable value and are easily resold to other retailers or in stores the criminal fences operate.

DEFINITION OF ORGANIZED RETAIL THEFT AND LEADER OF AN ORGANIZED ENTERPRISE : The state of New Jersey adopted Chapter 56, Laws of 2006 that defines "organized retail theft enterprise" as "any association of two or more persons who engage in the conduct of or are associated for the purpose of effectuating the transfer or sale of shoplifted merchandise." This legislation seeks parity with our neighbor state in an equally aggressive and sensible attempt to curtail a burgeoning criminal activity that today finds almost unlimited opportunities in retail-rich New York State.

Pattern of criminal offenses

Organized gangs of retail thieves know that penalties they may face if apprehended will be limited to their activity within a certain jurisdiction - despite the fact that their theft sprees can, will, and usually do involve theft from stores across a number of localities and counties. In other words, they are not deterred by a drive from one county to the next in their effort to complete their task of stealing as much merchandise as possible.

This legislation would ensure that one county could, under certain circumstances, prosecute organized retail thieves operating across county borders. With that authority, a county prosecutor could aggregate the value of the thefts committees across county lines within a certain period of time, since, again, retail thieves tend to travel from location to location to fill their "shopping lists" that they'll turn over to their fences.

Aggregation

These are professional thieves, not the amateur shoplifter who may pocket one or two items at a time. These thieves know that it's petit larceny - a misdemeanor - to steal items worth up to $1,000 from one location. They'll travel from location to location and curtail their theft just below that threshold. Court cases in 2001 and 2002 found it sufficient to show that the aggregated value of merchandise stolen exceeded the statutory $1,000 threshold and allowed prosecution for grand larceny in the fourth degree (People v. Dennis 1 Dept. 2002 , appeal denied; People v. Wandell 3 Dept. 2001 ). This legislation would codify those rulings and expand them to include the idea of aggregating the value of merchandise stolen in a "single event" (i.e., one theft spree over a certain period of time, as that is how organized retail thieves often strike).

Emergency exits

This legislation seeks to increase the penalty for using a store's designated emergency exit to facilitate the theft of merchandise from the store. The "emergency exit theft" has grown in popularity among organized retail thieves. The professional thieves load their shopping carts with merchandise, then signal an accomplice to be waiting with a car running and ready to load right outside the designated emergency exit. A quick push through the emergency exit triggers the store's alarm, but the trained thieves know they have a few minutes to load the car and make a quick getaway before the store employee can make it to the exit. Most times, the thieves are long gone by the time the security employees are able to make it to the opened door.

In addressing this measure of retail crime, the legislation distinguishes between the amateur and professional shoplifters in order to expedite the process of prosecuting organized retail criminal gangs. There should be no mistaking that a person bursting through an emergency exit with a cart full of multiple quantities of the same item is not the average, run-of-the-mill amateur shoplifter. Chances are he or she is a part of a larger gang of organized thieves tasked to clean out as many stores as possible as quickly as possible, robbing the store of its merchandise, causing higher prices for honest consumers, putting at risk the health and safety of the end-user of the stolen products, and stealing sales tax revenue from the state and local governments.

Booster bags

"Booster bags" are crafted to hide stolen merchandise from security devices, theft sensors, and similar units installed by retailers to guard against the theft of merchandise. The bags can be as rudimentary as a simple shopping bag lined with aluminum foil, or fashioned to be more complex and difficult to detect. Whatever the quality, the bags are crafted so that they will block or otherwise override the store's security system, hiding the stolen merchandise and allowing the shoplifter a clean exit from the store. This legislation would enhance the criminal penalty against a person who uses a "booster bag" or other such item designed to override a retail establishment's security system in order to steal merchandise from that store. It is an important step forward in helping retailers in New York State curtail the growing problem of organized retail theft and professional shoplifting.

In addressing this measure of retail crime, the legislation distinguishes between the amateur and professional shoplifters in order to expedite the process of prosecuting organized retail criminal gangs. Organized thieves are trained to know what they can and can't do in order to minimize the potential for prosecution and penalty; this legislation seeks to lower that threshold to ensure that organized thieves steer well clear of the robust retail marketplace that attracts them to New York State.

Upc fraud

To amend the penal law to make it a criminal offense to transfer, make, alter, counterfeit or reproduce a retail sales receipt or universal product code when the individual knows that the sales receipt or universal product code is counterfeit. The bill would also make it a class E felony to possess a device for the manufacture of fraudulent retail product receipt or universal product codes. Increasingly, retailers are subject to fraud perpetrated on them by dishonest customers who transfer, alter, counterfeit or otherwise fraudulently manipulate uniform product code labels. Also, retailers are frequently defrauded by customers who manufacture fraudulent, counterfeit or altered sales receipts which are then used to return goods for amounts in excess of actual value of the purchase. This legislation is necessary in order to give law enforcement officials tools necessary to address problems of UPC fraud and sales receipt fraud.

Itinerant vendors

The itinerant vendor statute, which was adopted as Chapter 282, Laws of 1995, was originally enacted to curtail the sale of certain perishable, high-theft items through flea markets. The 1995 law focused on baby foods and over-the-counter drugs, as these were items that professional thieves were targeting to resell through flea markets and were products that were compromised when exposed to sunlight and heat. The need to tighten the definitions in General Business Law § 38 were brought to light when law enforcement officials in central New York encountered difficulties in halting the sale of stolen, non-prescription drugs because of the ambiguous definitions contained in the current law. The proposed bill will tighten the current statute by redefining baby foods and non-prescription drugs. It will further expand the statute to prevent the sale of cosmetics and batteries by itinerant vendors, as these products have become high-theft items among those engaged in organized retail theft and because many cosmetics are similarly affected by exposure to sunlight and heat and thereby pose a health risk. The illegal activity this bill aims to thwart differs from shoplifting in that shoplifters typically steal single items for their own use, whereas this bill addresses the multiple theft of products by career criminals who steal primarily to sell the stolen goods. These crimes are often committed to support other illegal activity involving drug use. Baby foods, non-prescription drugs, cosmetics and batteries are attractive to these criminals because they are small, easily cancelable, and relatively expensive items. Prohibiting the sale of these products in flea markets will close an important outlet to these criminals, thereby making their theft less desirable. The public health concerns addressed by this bill and the need to support law enforcement efforts warrant passage of this measure.

Efencing

Internet auction sites and peer-to-peer advertising programs have become the cyberspace flea markets where stolen goods - everything from gift cards to health and beauty aids - are sold, usually to unsuspecting consumers who think they've stumbled on a deal that is too good to be true. And just as when these items are sold by "itinerant vendors" on the street, they can become compromised and indeed dangerous when they become outdated, poorly packaged, incorrectly stored, and moved solely for ill-gotten profit rather than with the interest of the consumer in mind.

Internet auction sites, however, are not the problem - the problem is when organized retail thieves use these sites to move their merchandise. This legislation seeks to increase the penalties against those thieves who set up Internet accounts for such a purpose.

Legislative history

This is new legislation. Separate legislation combined into this Omnibus Act: Itinerant Vendors: 2007: S.4442 (Passed Senate; died in Assembly Codes); 2005 - 2006: S.3174 (Balboni)/A.5670; (Passed Senate; died in Assembly Codes); 2003-2004: S.7138-A (Balboni)/A.10822A; (Passed Senate; died in Assembly Codes); Booster Bags: 2007: S.5153/A.9094 (Passed Senate; died in Assembly Codes); UPC Fraud: 2003 - 2004: S.2051 (Rath)/A.6144 (Codes) 2008: Referred to Codes (S.7623/A.11547)

Fiscal implications

Curbing organized retail theft in New York State will ensure that the state's retailers will be able to sell the items rather than lose them to theft, thereby collecting and remitting to state and local government sales tax that otherwise would be lost to theft.

Effective date

Parts A, D and H with take effect 90 days after the bill shall have become law; Part B, C and E shall take effect on the 1st of November next succeeding the date on which it shall have become law; Part F takes effect on January 1 next succeeding the date on which it shall have become law; Part G takes effect immediately upon being signed into law.