Relates to bribery offenses and defenses

Section 2 of this bill amends Section 200.03 of the penal law, as amended by section 18 of subpart A of part H of chapter 55 of the laws of 2014 by removing the language "upon an agreement or understanding that" and inserting "with the intent to influence".

Section 3 of this bill amends Section 200.04 of the penal law, as amended by section 19 of subpart A of part H of chapter 55 of the laws of 2014 by removing the language "upon an agreement or understanding that" and inserting "with the intent to influence".

Section 4 of this bill amends Section 200.05 of the penal law, by creating an additional defense in a prosecution for bribery. It would also be a defense that the benefit that the defendant conferred, or offered or agreed to confer, upon the public servant was a legitimate campaign contribution, unless such contribution was made upon an agreement or understanding that such public servant's vote, opinion, judgment, action, decision or exercise of discretion as a public servant would thereby be influenced.

Section 5 of this bill amends Section 180.03 of the penal law, as amended by chapter 577 of the laws of 1983 by removing the language "and causes economic harm to the employer or principal in an amount exceeding two hundred fifty dollars".

Section 6 of this bill amends Section 180.08 of the penal law, as amended by chapter 577 of the laws of 1983 by removing the language "and causes economic harm to the employer or principal in an amount exceeding two hundred fifty dollars".

Section 7 of this bill amends Section 195.00 of the penal law, as amended by chapter 906 of the laws of 1990 by specifying that this crime is "in the third degree" and a class A misdemeanor.

Section of 8 of this bill amends the penal law by adding two new sections, 195.01 and 195.03, to create the crimes of official misconduct in the second degree (a class E felony) and in the first degree (a class D felony).

Section 9 of this bill amends the penal law by adding a new article 196 to create the crime of abuse of public trust.

Section 10 of this bill amends subdivision 4 of section 200.50 of the criminal procedure law, as amended by section 15 of subpart A of part H of chapter 55 of the laws of 2014 by adding the language "and provided further that in any prosecution under article one hundred ninety-six of the penal law, the designated offense shall be the designated felony offense, as defined in subdivision two of section 196.00 of the penal law, followed by the phrase "as an abuse of public trust crime'.

Section 11 of this bill amends subdivision 7 of section 200.05 of the criminal procedure law by adding a new paragraph (f), which states "in the case of an abuse of public trust crime, as defined in section 196.00 of the penal law, specifies, as applicable, that the defendant or defendants committed, or attempted, conspired or solicited another to commit, a felony and intentionally used his or her position as a public servant in a manner that significantly facilitated the commission of concealment of the offense.

Section 12 of this bill amends the penal law by adding two new sections, 195.30 and 195.35, to create the crimes of undisclosed self-dealing in the second degree (a class D felony) and in the first degree (a class C felony).

Section 3 states that this act shall take effect on the first of November next succeeding the date on which it shall have become law.

Justification

Criminal law in New York State has not undergone a comprehensive revision since the Bartlett Commission drafted the "new" Penal Law in 1965. While the Commission's revision was considered the most significant legislation achieved in the evolution of a twentieth century criminal code, the provisions on white-collar crime, were relatively rudimentary. New York did not have the benefit of the experience gained during the last five decades combating fraud and corruption.

With the 21" century, development of commerce and technology has taken us from an industrial world where large corporations were beginning to exploit computer technology to a technological one where everyone, including criminals, have access to electronic marvels.

These changes in technology have brought an evolution of crimes and factual scenarios never contemplated by the Commission, such as transnational cybercrime rings, the rise in value of intellectual property and the corresponding activities of thieves, billion-dollar securities fraud schemes, computer hacking, and increasingly sophisticated corruption schemes. New breeds of white-collar criminals have victimized individuals, businesses, and government entities alike-costing New York State taxpayers dearly.

This continuing problem led to the creation of the New York State White Collar Crime Task Force in October 2012 by Cyrus R. Vance, Jr. The Task Force focused its attention to the issues that affect the entire panoply of white-collar crime, such bribery and corruption.

As recommended by the Task Force, this bill would replace the "agreement or understanding" requirement in New York's Bribery law with a requirement of an "intent to influence" the public servant, legislatively overruling People v. BacTran and make clear that where the alleged bribe is a campaign contribution, an "agreement or understanding" would still be required; and remove the $250 economic harm requirement from the felony commercial Bribery statutes, which has made felony-level prosecution all but impossible, and allowed private corruption schemes to go unpunished.

It would also enact a new crime of Undisclosed Self-Dealing by public servants, which would deal with courses of conduct where public servants have secret interests in government business above a certain threshold; upgrade the existing crime of Official Misconduct, currently only a misdemeanor, to create two new crimes of Official Misconduct in the Second and First degrees; and enact a sentencing enhancement for Abuse of Public Trust, to increase sentence ranges by one crime level in cases where public servants use their position to commit crimes that are not otherwise defined as corruption crimes.

Legislative history

New bill.

Fiscal implications

To be determined.

Effective date

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