A5157

New York State Assembly Bill A5157 modifies the statutory definition of Criminal Mischief in the Third Degree, codified in New York Penal Code § 140.05. Currently, the Penal Code defines Criminal Mischief in the Third Degree as either a) the damaging of a motor vehicle with the intent to steal property if the defendant has previously been convicted of criminal mischief, or b) the intentional damaging of property worth at least $250. A5157 adds to the statutory definition the damaging of any lock, alarm, or security or anti-theft device in a motor vehicle with the intent to steal property, regardless of the value of the damage caused.
The conduct covered by A5157 is already criminalized by New York Penal Code § 140.00, which defines Criminal Mischief in the Fourth Degree in relevant part as the intentional damaging of another person’s property, without regard to its value. Criminal Mischief in the Fourth Degree is a Class A misdemeanor, carrying a potential penalty of up to a year in prison, and $1,000 in fines. A5157 would reclassify the covered conduct as Criminal Mischief in the Third Degree, a Class E felony carrying a potential sentence of  four years in prison.
A5157 has been introduced by Assembly Member Steven Cymbrowitz (D-45) in each term of the State Assembly since the 2009-2010 term, but has never made it past the Standing Committee on Codes.
A5157 is an unnecessary and potentially harmful addition to the New York Penal Code. First, the law disrupts the general scheme by which the Penal Code punishes attempt crimes. Under Penal Code § 110.05, attempted crimes are generally classified at one level of severity below the level at which the crime would be classified if completed. However, A5157 would make certain forms of attempted theft class E felonies, regardless of the normal severity of the attempted theft under § 110.05. This may create perverse incentives for criminals to complete, rather than abandon, their crimes. For example, under the current statutory scheme, an attempt to break into a motor vehicle in order to steal property worth $1,000 would be classified as a class A misdemeanor. See Penal Code § 155.30 (defining fourth degree larceny and classifying it as a class E felony), Penal Code § 110.05 (classifying an attempted class E felony as a class A misdemeanor). However, under A5157, such an act would be classified as a class E felony, regardless of whether or not the crime was complete. The distinction between the attempt and completed crime would be eliminated.
Such a result cannot be defended on the grounds that a more severe penalty is necessary to deter this kind of unlawful behavior. While prison sentences may deter lawful behavior, the length of the prison sentence has an attenuated relationship with the size of the deterrent effect. To the extent there is such a relationship, the deterrent effect suffers from diminishing returns the longer the prison sentence becomes. Far more important for deterrence is the certainty of conviction, rather than its severity. See generallyDaniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime & Justice 199–163 (2013). A5157 does nothing to make convictions for the relevant conduct more likely, as the conduct is already criminalized under Penal Code § 140.00.
Despite the marginal deterrent effect, A5157 could result in significant collateral consequences for criminal defendants convicted under the bill. The reclassification of the relevant conduct as a felony carries with it a number of collateral penalties. Felons in New York convicted of a crime punishable by more than a year may be unable to serve on juries (N.Y. Jud. Law § 510(3), 28 U.S.C. § 1865(b)(5)), unable to vote while on parole or in prison (N.Y. Elec. Law § 5-106(2)), unable to enlist in the armed forces (10 U.S.C. § 504(a)), and unable to possess firemarms (18 U.S.C. § 922(g)(1). Conviction under A5157 could also result in deportation for defendants who are not citizens. INA 101(a)(43)(G).
In short, A5157 causes damage to New York’s criminal punishment scheme, and imposes severe collateral consequences on criminal defendants, in exchange for what would likely be a negligible increase in deterrence. We urge this bill be rejected. 

A10223

A10223 attempts to create a separated fund to help underground utilities in New York State. Briefly, under-grounding is the moving of presently above-ground utility facilities below ground. The motivation for this improvement, presumably, primarily relates to aesthetics and quality of life. As an example, Tokyo Governor Yuriko Koike has recently made under-grounding a priority, to rather widespread acclaim.

A10223 is sponsored by Assembly Member Thiele. There is a partner bill in the Senate, S8084, sponsored by LaValle. Neither bill has moved beyond committee.

The intention of this bill is reasonable enough. But funding for under-grounding would come, in one way or another, from the broader state budget. We are therefore in this legislation asking taxpayers to fund under-grounding around the State.

The provision of infrastructure is a reasonable function of government, where an urgent need exists and where a market failure is present. These conditions are arguably met in Tokyo, which already has a highly sophisticated general infrastructure and where small aesthetic improvements could return more equity, due to high land and real estate values, then it would cost in public expenditures (and where it might be impossible for a private actor to fully capture that value).

These conditions are not present in New York State. Money spent on under-grounding could be spent on other, more critical priorities. For example, the construction of a bullet train from New York to Albany, or New York to East Hampton.

Given these more pressing needs for the funding of State infrastructure, we cannot justify the expenditure of public monies on this purpose. Therefore, regrettably, we oppose this legislation.

Alterations to the language of this bill so that it requires funding for under-grounding to come from the towns themselves would, in our view, improve this legislation.

Thank You A/M Daniel Rosenthal

Credit where credit is due. A special post thanking Assembly Member Daniel Rosenthal for his co-sponsorship of A4646. We previously reviewed this legislation and recommended it. Assembly Member Rosenthal strengthens the bill by adding his name and shows his commitment to good policy. Residents of the 27th District are lucky to have Daniel Rosenthal as their representative!

A100

Assembly Bill A100 is sponsored by A/M Paulin and is cosponsored by A/Ms Fahy, Jaffee, and McDonough. It was referred to the committee on Education on January 4th, 2017 and hasn’t moved since.

The bill lowers the compulsory age of education to 5 years of age.  Currently, eight states plus the District of Columbia have a compulsory school age of 5. These states are Arkansas, Connecticut, Delaware, Maryland, New Mexico, Oklahoma, South Carolina, and Virginia. The current compulsory
age in New York is 6.

On its face, this this bill seems reasonable.  The sooner a child begins formal education, the better prepared they would seem to be for formal education. Therefore, this bill seems like an intuitive step forward for education in the state of New York.  It addresses disparities in selective admission of certain 5 year olds, as well as problems with students entering 1st grade without prior kindergarten.

However, starting formal education later, around the age of 6 or 7, is the international standard and has the support of the experts.  Substantial evidence suggests that developmental outcomes are better with nursery style
education prior to this point.  The majority of European countries have a compulsory educational age of 6.  Only Northern Ireland, Cyprus, England, Malta, Scotland and Wales have younger compulsory ages.  An open letter to the Ministers in England recommending a later compulsory age recently garnered over 120 expert signatures.

Additionally, based on analyses conducted of other states which have considered or passed similar legislation, there are substantial costs involved in lowering the age of compulsory education. In Indiana, for instance, there were estimates that requiring students to enroll in a kindergarten program at five would cost an additional $12.4 million annually.

While the goal of the bill is admirable, it does not reflect either expert consensus on education or a national or international standard.  Therefore,
we recommend a vote of NO.

A4646

Assembly Bill 4646 is sponsored by A/Ms Simotas, Simon, Magnarelli, McDknough, Mosley and Gottfried. A4646 was introduced on February 3rd, 2017.  It was read once and referred to the Committee on Consumer Affairs and Protection on 2/3/17, and again on 1/3/18, but otherwise hasn’t moved.

A4646 has to do with the child proofing of liquid detergent packets and has a Senate companion, S100.  The senate bill was referred to consumer protection on 1/4/17 and again on 1/3/18.

Currently, the ingestion of laundry detergent by young children under the age of 6 is a major problem.  A recent study found a 17 percent increase in young children poisoned by laundry detergent over a one year period.  An average of one child every hour was reported to have been injured in some way by laundry pods between 2012 and 2013.  Types of harm recorded include coma, respiratory arrest, pulmonary edema, seizures, and cardiac arrest.

Concerns about cost are difficult to gauge at present, and the efficacy of the legislation is unknown as there is little precedent currently.

Federal legislation aimed at the same purpose appears to have gone nowhere.

Traditional counterarguments are that labeling requirements are cumbersome to implement.  But the labeling doesn’t seem onerous in this case and addresses a serious problem.

We feel the good outweighs the bad on this bill and urge YES.

In the absence of current federal legislation which would make this bill redundant, it seems reasonable to take steps to promote consumer awareness and ensure the safety of young children.

A4022

Assembly Bill 4022 sponsored by A/M Rosenthal and co-sponsored by A/M Mosley has to do with companion animals. A/M Rosenthal introduced the bill on January 30th; it was sent to Agriculture. A04022 hasn’t yet come up for a vote; A/M Rosenthal is a Member of the Committee. The main point of A04022 is to strengthen the rules for how to treat companion animals and to stiffen the penalties for breaking those rules.

Current law already puts some restraints on the treatment of companion animals. Many local jurisdictions have found these restraints insufficient and have created tougher rules. A04022 aims to streamline these differing rules and provide better guidance for law enforcement. Tethering is defined as tying a companion animal to a fixed object. It does not include the use of a leash.

A04022 makes tethering illegal unless a particular type of collar is used and the tether is light and long. It bans tethering under any circumstances during bad weather or for puppies. All dogs must be tethered separately. The maximum tether time is set to three hours. Unsafe conditions make tethering illegal. Dogs can’t be tethered from 11pm to 6am. There are a few other exceptions and provisions set in the rules.

Violation of these rules is set as a Class A misdemeanor on a first offence. Bizarrely, violation on a second offence is set as a Class B misdemeanor — a lesser sentence. I’m not sure why a repeat offender faces less penalty than a first offender; that seems bass akwards. A04022 also, confusingly, refers to companion animals but seems to assume that the only form of companion animal is a companion dog.

I’m sympathetic to the principles behind this legislation. But I’m confused by the assumptions about companion animals and the law seems to have strange technical features. Therefore, I’d vote NO on this bill.

 

A35

A35 is sponsored by A/M Paulin, representing a district in Westchester. The bill was introduced on 1/4, referred to Agriculture and hasn’t moved since.

Currently, certain kinds of agricultural land is protected: you can’t convert it to a different status without triggering penalties. An exception is made under current law for oil, natural gas and wind power development. This bill broadens that exception to include solar power.

This bill seems like a definite YES to me. Straightforward amendation of prior legislation to keep up with the times. Not much to worry about in terms of market distortion; just fixes a bias in the legislation. More people should co-sponsor this bill.


A33

Assembly Bill 33 is sponsored by A/M Cahill. It was referred to Insurance on 1/4/2017 and hasn’t gone anywhere since.

Current law limits the maximum amount of insurance settlements in certain cases. The schedule limiting the maximum amount is currently set by the chair of a Worker’s Compensation Board.

This law changes that process so that the maximum amount would instead be set by a Superintendent. It also directs that Superintendent to be more mindful (presumably, more supportive) of no-fault claimants.

This seems like a pretty complex issue. Philosophically, you can argue that the bill removes an artificial restriction on maximum payouts and the government should take a step out of the restriction business. On the other hand, you can argue that the bill is a carve-out of a particular sector of insurance and causes even more distortion for that reason.

On an analysis of interests, it seems like this bill would probably help, in some very small way, no-fault claimants, hospitals (doctors, nurses, etc.), and trial lawyers. It seems like the bill would probably hurt, in some small way, businesses (esp. small businesses), taxpayers (New York State is a major employer) and insurers.

The best argument against this bill is that it seems to provide concentrated benefits and diffuse harms, and that legislation like that is usually bad (e.g. farm subsidies). That’s a good general argument against a bill and I’m not sold on the necessity of this one. So, I’d vote against this bill.

I’d be open to changing my opinion if A/M Cahill could show that the current system distorts the proper compensation for no-fault tenants in a clear way, or if he could show that the bill actually does not cause diffuse harm.