Update Fraud and Theft Laws

Section 1. Section 155.00 of the penal law, subdivisions 1 and 8 as amended by chapter 514 of the laws of 1986, subdivision 6 as added by chapter 791 of the laws of 1967, subdivision 7 as added by chapter 115 of the laws of 1969, subdivision 7-a as added by chapter 556 of the laws of 1987, subdivision 7-b as added by chapter 81 of the laws of 1995, subdivision 7-c as amended by chapter 171 of the laws of 1993, and subdivision 9 as added by chapter 530 of the laws of 1975, is amended to read as follows: § 155.00 Larceny; definitions of terms.

The following definitions are applicable to this title:

1. "Property" means any money, personal property, real property, computer data, computer program, personal identifying information, secret scientific material, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.

2. "Obtain" includes, but is not limited to, the bringing about of a transfer or purported transfer of property or of a legal interest therein, whether to the obtainer or another. With regard to personal identifying information, computer data or a computer program, obtain includes duplicating, recording, copying, downloading, uploading or printing out the information, data, or program, or obtaining a physical object

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD05181-01-7

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containing such information. With regard to service, obtain includes, but is not limited to, using or accessing a service.

3. "Deprive." To "deprive" another of property means (a) to withhold it or cause it to be withheld from him or her permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him or her, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property. When the property is personal identifying information, computer data or a computer program, to deprive another of it means to obtain it or cause a third person to obtain it under such circumstances that a substantial portion of the economic benefit or value of having control over it or authority over its use is lost to an owner. To deprive another of service is to use or access a service or cause a third person to use or access a service under such circumstances that some of the economic benefit or value of having control or authority over providing the service is lost to an owner.

4. "Appropriate." To "appropriate" property of another to oneself or a third person means (a) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person. When the property is personal identifying information, computer data or a computer program of another, to appropriate it to oneself or a third person means to obtain it under such circumstances as to acquire the ability to use it or dispose of it to the economic benefit of oneself or a third person or to the economic detriment or damage of an owner. To appropriate a service provided by another to oneself or a third person means to use or access the service under such circumstances as to acquire the ability to use it to the economic benefit of oneself or a third person or to the economic detriment or damage of an owner.

5. "Owner." When property or service is taken, obtained or withheld by one person from another person, an "owner" thereof means any person who has a right to possession [thereof] of the property or a right to provide the service superior to that of the taker, obtainer or withholder.

A person who has obtained possession of property or service by theft or other illegal means shall be deemed to have a right of possession of the property or a right to provide the service superior to that of a person who takes, obtains or withholds it from him or her by larcenous means.

A joint or common owner of property shall not be deemed to have a right of possession thereto superior to that of any other joint or common owner thereof.

In the absence of a specific agreement to the contrary, a person in lawful possession of property shall be deemed to have a right of possession superior to that of a person having only a security interest therein, even if legal title lies with the holder of the security interest pursuant to a conditional sale contract or other security agreement.

6. "Secret scientific material" means a sample, culture, micro-organism, specimen, record, recording, document, drawing or any other article, material, device or substance which constitutes, represents, evidences, reflects, or records a scientific or technical process, invention or formula or any part or phase thereof, and which is not, and is not intended to be, available to anyone other than the person or

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persons rightfully in possession thereof or selected persons having access thereto with his, her or their consent, and when it accords or may accord such rightful possessors an advantage over competitors or other persons who do not have knowledge or the benefit thereof.

7. ["Credit card" means any instrument or article defined as a credit card in section five hundred eleven of the general business law.

7-a. "Debit card" means any instrument or article defined as a debit card in section five hundred eleven of the general business law.

7-b. "Public benefit card" means any medical assistance card, food stamp assistance card, public assistance card, or any other identification, authorization card or electronic access device issued by the state or a social services district as defined in subdivision seven of section two of the social services law, which entitles a person to obtain public assistance benefits under a local, state or federal program administered by the state, its political subdivisions or social services districts.

7-c. "Access device" means any telephone calling card number, credit card number, account number, mobile identification number, electronic serial number or personal identification number that can be used to obtain telephone service.] "Personal identifying information" means a person's date of birth, driver's license number, social security number, personal identification number, financial services account number or code, savings account number or code, checking account number or code, brokerage account number or code, credit card account number or code, debit card number or code, automated teller machine number or code, taxpayer identification number, computer system password, signature or copy of a signature, electronic signature, unique biometric data that is a fingerprint, voice print, retinal image or iris image, telephone calling card number, mobile identification number or code, electronic serial number or personal identification number, or any other name, number, code or information that may be used alone or in conjunction with other such information to assume the identity of another person or access financial resources or credit of another person, or any physical object containing such information, such as a printout or other written material, driver's license or other identity card, credit card, debit card, public benefit card, automated teller or other transactional card, or computer, hard drive, or other data storage device. In this subdivision, "person" has all the meanings set forth in subdivision seven of section 10.00 of this chapter; "electronic signature" has the meaning provided in subdivision three of section three hundred two of the state technology law; "credit card" and "debit card" have the meanings provided in section five hundred eleven of the general business law; "public benefit card" means any medical assistance card, food stamp assistance card, public assistance card, or any other identification, authorization card or electronic access device issued by the state or a social services district as defined in subdivision seven of section two of the social services law which entitles a person to obtain public assistance benefits under a local, state or federal program administered by the state, its political subdivisions or social services districts.

8. "Service" includes, but is not limited to, [labor, professional service,] a computer service, transportation service, telecommunications service, cable or satellite television service, microwave transmission service, the supplying of service pursuant to a public or governmental benefit program, including housing and medical care, the supplying of service pursuant to an insurance policy or program, the supplying of hotel accommodations, restaurant services, entertainment, the supplying of equipment for use, and the supplying of commodities of a public util-

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ity nature such as gas, electricity, steam and water. A ticket or equivalent instrument which evidences a right to receive a service is not in itself service but constitutes property within the meaning of subdivision one.

9. ["Cable television service" means any and all services provided by or through the facilities of any cable television system or closed circuit coaxial cable communications system, or any microwave or similar transmission service used in connection with any cable television system or other similar closed circuit coaxial cable communications system.] "Computer program" means an ordered set of data representing coded instructions or statements that, when executed by computer, cause the computer to process data or direct the computer to perform one or more computer operations or both and may be in any form, including magnetic storage media, punched cards, or stored internally in the memory of the computer.

10. "Computer data" means a representation of information, knowledge, facts, concepts or instructions which are being processed, or have been processed in a computer and may be in any form, including magnetic storage media, punched cards, or stored internally in the memory of the computer.

§ 2. Paragraph (c) of subdivision 2 of section 155.05 of the penal law is amended and a new paragraph (f) is added to read as follows:

(c) By committing the crime of issuing a bad check, as defined in section 190.05, or by obtaining property or service by using or presenting a form of payment or personal identifying information the actor knows he or she is not authorized to use or knows is expired or forged or otherwise not valid;

(f) By theft of service. Theft of service means either: (i) using or accessing a service in a manner that otherwise requires payment and intentionally failing to pay for such use or access by either tampering without authority with a delivery, payment, or measurement device or mechanism, or by entering or leaving premises where the service is provided by stealth or by evading a physical barrier, or (ii) using or accessing a service in a manner that otherwise requires payment or the presentation of personal identifying information and using or presenting a form of payment or personal identifying information the actor knows he or she is not authorized to use or knows is expired or forged or otherwise not valid.

§ 3. Subdivisions 1 and 2 of section 155.20 of the penal law, paragraph (b) of subdivision 2 as added and paragraph (c) of subdivision 2 as relettered by chapter 115 of the laws of 1969, are amended to read as follows:

1. Except as otherwise specified in this section, value means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained: (i) with regard to property, the cost of replacement of the property within a reasonable time after the crime; or (ii) with regard to service, the cost of providing the service at the time of the crime.

2. [Whether or not they have been issued or delivered, certain written instruments, not including those having a readily ascertainable market value such as some public and corporate bonds and securities, shall be evaluated as follows:

(a) The value of an instrument constituting an evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectable thereon or thereby, such figure ordinarily being the face

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amount of the indebtedness less any portion thereof which has been satisfied.

(b) The value of a ticket or equivalent instrument which evidences a right to receive a transportation, entertainment or other service shall be deemed the price stated thereon, if any; and if no price is stated thereon the value shall be deemed the price of such ticket or equivalent instrument which the issuer charges the general public.

(c) The value of any other instrument which creates, releases, discharges or otherwise affects any valuable legal right, privilege or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.] The value of computer data or a computer program is the replacement cost or the market value at the time and place of the crime, whichever is greater.

§ 4. The penal law is amended by adding a new section 155.23 to read as follows: § 155.23 Petit theft of service.