Amends the definitions of criminal enterprise and pattern of criminal activity for the purpose of criminal liability for enterprise corruption

2 Co-sponsors

• John A. DeFrancisco
• Michael H. Ranzenhofer

BILL NUMBER:S5383

Title of bill

An act to amend the penal law, in relation to definitions of criminal enterprise and pattern of criminal activity

Summary of provisions

This legislation amends subdivision 3 of § 460.10 of the Penal Law to broaden the definition of "criminal enterprise". It further amends paragraph (b) of subdivision 4 of § 460.10 of the Penal Law to broaden the definition of "pattern of criminal activity".

Justification

Case law has inappropriately narrowed New York's enterprise corruption statute, also known by its federal counterpart, the Racketeering Influenced and Corrupt Organizations Act or the RICO law. The District Attorneys Association has indicated that the amendments in this bill are still needed. It is believed that omitting the phrase -distinct from a pattern" will clear up the longstanding confusion about its meaning, and would enable a jury to infer a structure from proof of the pattern advanced at trial. In addition, it is believed that omitting the "distinct" language will remove an unnecessary hurdle to prosecution.

Background:

In People v. Nappo *(Slip Op., J. Vaughn, 1/14/98), a Suffolk County Court case, 13 men were charged with a bootlegging scheme which brought at least 30 million gallons of untaxed gasoline from New Jersey into New York over an 18-month period between 1994 and 1996. The defendants made hundreds of deliveries, sometimes as many as 20 a day. New York lost approximately 18 cents in tax revenue for each illegally imported gallon ($5.4 million).

The court in Nappo ruled that although there was a criminal structure involved in bringing illegal gasoline into the state, "in the absence of their continuing criminal activities to allegedly import for resale untaxed fuel, there is no structure, business, activity or continuity of criminal purpose beyond the scope of the criminal incidents alleged in this indictment".

The court further ruled that because each pattern act is so closely related to the single purpose of importing motor fuel illegally into this state without paying appropriate taxes, they must be considered part of the same criminal venture and therefore the pattern of criminal activity as contemplated by the statute has not been shown to exist". As a result, Judge Vaughn ordered the enterprise corruption, conspiracy and larceny counts dismissed.

* People v. Napco (2d Dept. 1999) 261 A.0.2d 558, 690 N.Y.S.2d 649,

Main volume

leave to appeal granted 93 N.Y.2d 1023, H.Y.S. 2d 582, 719 N.E.2d 943, leave to appeal granted 93 N.Y.2d 1026,697 N.Y.S.2d 595, 719 N.E.2d 946, reversed in part 94 N.Y.2d 564, 709 N.Y.S.2d 41, 729 N.E.2d 698.

Fiscal implications

None.

Prior legislative history

1999 Passed Senate/Assembly Codes Committee 2000 passed Senate/Assembly Codes Committee 2001 Passed Senate/Assembly Codes Committee 2002 Passed senate/Assembly Codes Committee 2003-04 Passed Senate 2005-06 Passed Senate 2007-07 Passed Senate 2009-10 Senate Codes Committee 2011-12 Senate Codes Committee

Effective date

This.act shall take effect on, the first of November next succeeding the date on which it shall have become a law.