Bill Text: NY S02146 | 2021-2022 | General Assembly | Introduced
Bill Title: Allows for the governor to create a period of enhanced penalties during a disaster; creates enhanced penalties for certain disaster related crimes during public emergencies.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2022-01-05 - REFERRED TO VETERANS, HOMELAND SECURITY AND MILITARY AFFAIRS [S02146 Detail]
Download: New_York-2021-S02146-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2146 2021-2022 Regular Sessions IN SENATE January 20, 2021 ___________ Introduced by Sen. SERINO -- read twice and ordered printed, and when printed to be committed to the Committee on Veterans, Homeland Securi- ty and Military Affairs AN ACT to amend the executive law and the penal law, in relation to enhanced penalties for certain disaster related crimes during public emergencies The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The executive law is amended by adding a new section 29-a-1 2 to read as follows: 3 § 29-a-1. Enhanced penalties for certain crimes committed during a 4 disaster emergency. 1. As used in this section the following terms shall 5 have the following meanings: 6 a. "Enhanced penalties period" means a temporal period commencing with 7 the declaration of a state disaster emergency and shall, upon public 8 notice, establish strict liability for the crimes established under 9 article four hundred ninety-three of the penal law. 10 b. "Disaster related crimes" means those offenses articulated under 11 article four hundred ninety-three of the penal law. 12 2. Subject to the state constitution, the federal constitution and 13 federal statutes and regulations, where a declaration of a state disas- 14 ter emergency has been issued, the governor shall issue an executive 15 order giving notice of an enhanced penalties period where he or she has 16 a reasonable apprehension of the immediate danger of disaster, rioting, 17 catastrophe, or similar public emergencies; or the chance thereof would 18 be detrimental to public safety or the operations of emergency person- 19 nel. 20 3. Enhanced penalties periods shall be subject to the following stand- 21 ards and limits: 22 a. No enhanced penalties periods for designated offenses shall be made 23 for a period in excess of thirty days, provided, however, that upon EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07333-01-1S. 2146 2 1 reconsideration of all of the relevant facts and circumstances, the 2 governor may extend the suspension for additional periods not to exceed 3 thirty days each; 4 b. No enhanced penalties periods shall be made which does not safe- 5 guard the health and welfare of the public and which is not reasonably 6 necessary to the disaster effort or to maintain public safety; 7 c. Any such enhanced penalties period shall specify the statute or 8 part thereof to be enhanced and the terms and conditions of enhanced 9 criminal penalties; 10 d. The order may provide for such enhanced penalties period only under 11 particular circumstances, and may provide for the alteration or modifi- 12 cation of the requirements of such statute enhanced, and may include 13 other terms and conditions; 14 e. Any such enhanced penalties period order shall provide for public 15 notification of the specified enhanced criminal penalties articulated 16 under article four hundred ninety-three of the penal law. 17 4. Such enhanced penalties periods shall be effective from the time 18 and in the manner prescribed in such orders and shall be published as 19 soon as practicable in the state bulletin and appropriate public media 20 outlets. 21 5. The legislature may terminate by concurrent resolution executive 22 orders issued under this section at any time. 23 § 2. The penal law is amended by adding a new title Y-1-A to read as 24 follows: 25 TITLE Y-1-A 26 DISASTER-RELATED CRIMES 27 ARTICLE 493 28 ENHANCED PENALTIES FOR DISASTER-RELATED CRIMES 29 Section 493.00 Legislative findings. 30 493.05 Disaster-related crimes. 31 493.10 Sentencing. 32 § 493.00 Legislative findings. 33 The legislature finds that during times of emergency it is imperative 34 that the state of New York have the appropriate tools for the stream- 35 lined provision of assistance, as well as the powers to ensure the safe- 36 ty of the public and the operation of law. During emergencies, where 37 police and fire personnel have the primary objective of evacuating, 38 rescuing, and/or providing medical services to endangered New Yorkers, 39 community policing is appropriately left as a secondary task. Neverthe- 40 less, during these times of vulnerability, there have been incidents of 41 theft, vandalism, looting, and exploitation of those impacted. As such, 42 the legislature believes that the punishment for these crimes shall be 43 proportionate to the level of threat and/or emergency presented to these 44 communities, and that the Governor shall provide public notice, where a 45 state disaster emergency has been declared, and there is a reasonable 46 belief of an immediate threat to public safety, that there exists a 47 period of enhanced penalties for those who target communities, busi- 48 nesses, and individuals who are faced with natural disasters or terror- 49 ist acts. 50 § 493.05 Disaster-related crimes. 51 1. A person commits a disaster-related crime when he or she commits a 52 specified offense and either: 53 a. intentionally selects the time period when the offense is committed 54 or intended to be committed in whole or in substantial part because aS. 2146 3 1 state of emergency has been declared and there is a belief or perception 2 that emergency personnel are not available for policing; or 3 b. intentionally selects the time period when the offense is committed 4 or intended to be committed in whole or in substantial part because a 5 state of emergency has been declared and there is a belief or perception 6 that the public has abandoned property due to evacuation or public safe- 7 ty efforts. 8 For purposes of this subdivision, a disaster-related crime shall 9 include, but not be limited to, the stealing, embezzlement, or obtaining 10 by fraud, false pretenses, or other illegal means, of retail merchandise 11 in quantities that would not normally be purchased for personal use or 12 consumption, for the purpose of reselling, trading, or otherwise reen- 13 tering such retail merchandise into commerce. 14 2. A declaration of an enhanced penalties period under section twen- 15 ty-nine-a-one of the executive law shall establish strict liability for 16 an offense committed under this article. 17 3. A "specified offense" is an offense defined by any of the following 18 provisions of this chapter: section 140.17 (criminal trespass in the 19 first degree); section 140.20 (burglary in the third degree); section 20 140.25 (burglary in the second degree); section 140.30 (burglary in the 21 first degree); section 145.05 (criminal mischief in the third degree); 22 section 145.10 (criminal mischief in the second degree); section 145.12 23 (criminal mischief in the first degree); section 145.20 (criminal 24 tampering in the first degree); section 150.05 (arson in the fourth 25 degree); section 150.10 (arson in the third degree); section 150.15 26 (arson in the second degree); section 150.20 (arson in the first 27 degree); section 155.30 (grand larceny in the fourth degree); section 28 150.35 (grand larceny in the third degree); section 155.40 (grand larce- 29 ny in the second degree); section 155.42 (grand larceny in the first 30 degree); section 160.05 (robbery in the third degree); section 160.10 31 (robbery in the second degree); section 160.15 (robbery in the first 32 degree); section 165.45 (criminal possession of stolen property in the 33 fourth degree); section 165.50 (criminal possession of stolen property 34 in the third degree); section 165.52 (criminal possession of stolen 35 property in the second degree); section 165.54 (criminal possession of 36 stolen property in the first degree); section 190.65 (scheme to defraud 37 in the first degree). 38 4. In any prosecution for a specified offense it shall be an affirma- 39 tive defense that the person charged with the offense: 40 a. engaged in the proscribed conduct because he or she was coerced to 41 do so due to the emergency conditions; and 42 b. exercised care reasonably necessary to prevent and limit the depra- 43 vation or injury, including but not limited to stealing or obtaining 44 goods that are intended for personal use or consumption during an emer- 45 gency situation. 46 § 493.10 Sentencing. 47 1. When a person is convicted of a disaster-related crime pursuant to 48 this article, and the specified offense is a violent felony offense, as 49 defined in section 70.02 of this chapter, the disaster-related crime 50 shall be deemed a violent felony offense. 51 2. When a person is convicted of a disaster-related crime pursuant to 52 this article and the specified offense is a class C, D, or E felony, the 53 disaster-related offense shall be deemed to be one category higher than 54 the specified offense the defendant committed, or one category higher 55 than the offense level applicable to the defendant's conviction for anS. 2146 4 1 attempt or conspiracy to commit a specified offense, whichever is appli- 2 cable. 3 3. Notwithstanding any other provision of law, when a person is 4 convicted of a disaster-related crime pursuant to this article and the 5 specified offense is a class B felony: 6 a. The maximum term of the indeterminate sentence must be at least six 7 years if the defendant is sentenced pursuant to section 70.00 of this 8 chapter; 9 b. The term of the determinate sentence must be at least eight years 10 if the defendant is sentenced pursuant to section 70.02 of this chapter; 11 c. The term of the determinate sentence must be at least twelve years 12 if the defendant is sentenced pursuant to section 70.04 of this chapter; 13 d. The maximum term of the indeterminate sentence must be at least 14 four years if the defendant is sentenced pursuant to section 70.05 of 15 this chapter; and 16 e. The maximum term of the indeterminate sentence or the term of the 17 determinate sentence must be at least ten years if the defendant is 18 sentenced pursuant to section 70.06 of this chapter. 19 4. Notwithstanding any other provision of law, when a person is 20 convicted of a disaster-related crime pursuant to this article and the 21 specified offense is a class A-1 felony, the minimum period of the inde- 22 terminate sentence shall be not less than twenty years. 23 § 3. This act shall take effect on the first of November next succeed- 24 ing the date on which it shall have become a law.
