STATE OF NEW YORK ________________________________________________________________________ 1490 2017-2018 Regular Sessions IN SENATE January 9, 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 the definition of mentally disabled and in relation to larceny; to amend the civil practice law and rules, in relation to the mental condition of a victim; to amend the criminal procedure law, in relation to examination of witnesses; and to amend the penal law, in relation to larceny The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 155.00 of the penal law is amended by adding a new 2 subdivision 10 to read as follows: 3 10. "Mentally disabled" means that a person suffers from a mental 4 disease, defect or condition which renders him or her incapable of 5 appraising the nature of the conduct constituting the taking, obtaining 6 or withholding of his or her property. 7 § 2. Section 155.10 of the penal law is amended to read as follows: 8 § 155.10 Larceny; no defense. 9 1. The crimes of (a) larceny committed by means of extortion and an 10 attempt to commit the same, and (b) bribe receiving by a labor official 11 as defined in section 180.20, and bribe receiving as defined in section 12 200.05, are not mutually exclusive, and it is no defense to a prose- 13 cution for larceny committed by means of extortion or for an attempt to 14 commit the same that, by reason of the same conduct, the defendant also 15 committed one of such specified crimes of bribe receiving. 16 2. It is no defense to a prosecution for larceny that the defendant 17 obtained consent to take, withhold, or obtain property, where such 18 consent was obtained from a person whom the defendant knew or had reason 19 to know was mentally disabled. 20 § 3. Section 4504 of the civil practice law and rules is amended by 21 adding a new subdivision (e) to read as follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01219-01-7

S. 1490 2 1 (e) Mental condition of a victim. Upon receipt of a grand jury subpoe- 2 na issued pursuant to subdivision two of section 610.20 of the criminal 3 procedure law and endorsed by a judge of a superior court, a medical 4 provider must, as indicated in this subdivision, provide to the grand 5 jury the medical records of the person named in the subpoena. A judge of 6 a superior court shall endorse such a grand jury subpoena upon an ex 7 parte sworn showing by a district attorney, or other prosecutor where 8 appropriate, establishing (1) that there is reasonable cause to believe 9 that the person in question is a mentally disabled person, and (2) that 10 there is reasonable cause to believe that the person in question has 11 been the victim of financial exploitation. A person is "mentally disa- 12 bled" for purposes of this subdivision when that person suffers from a 13 mental disease, defect or condition which renders him or her incapable 14 of appraising the nature of the conduct constituting the financial 15 exploitation. Upon receipt of such an endorsed subpoena a medical 16 provider, including but not limited to a physician, psychologist or 17 nurse, shall be required to disclose information relating to the mental 18 or cognitive condition of the person in question that the medical 19 provider acquired in attending the person in a professional capacity, 20 and which was necessary to enable him or her to act in that capacity. 21 § 4. Subdivision 2 of section 660.20 of the criminal procedure law is 22 amended to read as follows: 23 2. Will not be amenable or responsive to legal process or available 24 as a witness at a time when his or her testimony will be sought, either 25 because he or she is: 26 (a) About to leave the state and not return for a substantial period 27 of time; or 28 (b) Physically ill or [~~incapacited.~~] incapacitated; or 29 (c) Of advanced age which, for the purposes of this subdivision shall 30 mean a person who has attained the age of seventy-five years. 31 § 5. Paragraph (d) of subdivision 2 of section 155.05 of the penal law 32 is amended to read as follows: 33 (d) By false promise. 34 A person obtains property by false promise when, pursuant to a scheme 35 to defraud, he or she obtains property of another by means of a repre- 36 sentation, express or implied, that he, she or a third person will in 37 the future engage in particular conduct, and when he or she does not 38 intend to engage in such conduct or, as the case may be, does not 39 believe that the third person intends to engage in such conduct. 40 In any prosecution for larceny based upon a false promise, the defend- 41 ant's intention or belief that the promise would not be performed may 42 not be established by or inferred from the fact alone that such promise 43 was not performed. Such a finding may be based only upon evidence estab- 44 lishing that the facts and circumstances of the case are wholly consist- 45 ent with guilty intent or belief and wholly inconsistent with innocent 46 intent or belief, and excluding to a moral certainty every hypothesis 47 except that of the defendant's intention or belief that the promise 48 would not be performed; provided that partial performance of such prom- 49 ise does not, by itself, preclude a reasonable jury from making such 50 finding from all the facts and circumstances; 51 § 6. This act shall take effect immediately.

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