Protect Mentally Disabled from Theft

Section 2 amends § 155.10 of the Penal Law to state that, "it is no defense to a prosecution for larceny that the defendant obtained consent to take, withhold, or obtain property, where such consent was obtained from a person who the defendant knew or had reason to know was mentally disabled."

Section 3 establishes the effective date.

Justification

New York's Penal Law was recently amended to target physical assaults committed against elderly victims. In contrast with most other states in the country, however, New York has not addressed the financial exploita- tion of impaired adults. The sad fact is that older adults who suffer from age-related cognitive disorders may be unable to understand basic arithmetic, let alone their finances. They may not remember signing checks, wills or deeds, or giving permission or authority to transfer ownership of their bank accounts or real estate.

For those reasons, an elderly victim's mental infirmity can complicate a Larceny prosecution. The Penal Law requires proof that the defendant wrongfully took, obtained or withheld property from an owner - in other words, that the property was taken without consent. A mentally disabled victim, however, cannot give meaningful consent; more saliently, such a victim cannot testify (nor, for that matter, execute a sworn certif- ication) that his or her property was taken without consent. To prove this element, the prosecution often relies on evidence that at the time of the taking, the victim lacked the mental capacity to consent. That is precisely what occurred in People v. Caminola. There, the defendant stole from his victim, a senile elderly woman, over a two-year period. At trial, the defendant testified that the funds he took were gifts from the victim, who had by then passed away. The trial court permitted the prosecution to introduce evidence of the victim's mental condition at the time of the transfer, deeming it relevant to whether she had the capacity to consent. The First Department affirmed the conviction, explaining: The jury was not instructed that the victim's capacity or incapacity was an element of the offense, but only that they could evaluate her capacity under the circumstances of this case in determining whether a trespass had occurred or whether, as defendant contended, he had acted with her know- ledge and consent. Although we note the paucity of case law in this State equating a trespass for purposes of larceny with an ostensibly donative victim's inability to consent to the taking, nevertheless, these factors are properly considered in the context of a traditional understanding of the larceny statute.

The "paucity of case law" has seeded confusion in Larceny cases with mentally disabled victims. This legislation will codify the holding of Caminola to make it applicable statewide.

Legislative history

2017-18: S.5900/A.3215 Advanced to 3rd Reading/Referred to Codes

2015-16: S.395/A.4447 Passed Senate/Referred to Codes

2013-14: S.7177/A.8777-A Passed Senate/Referred to Codes

Fiscal implications

None.

Effective date

This act shall take effect immediately.