 
                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-
    17  standing  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.
                                                                   LBD01209-01-7

        S. 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 be
     6  influenced] 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 an
    11  agreement 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  principal
    38  in 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 an
    51  amount 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 (receiving

        S. 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"; and

        S. 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.
Relates to bribery offenses and defenses

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