Crime Committee Report e.indd - New York State Senate

S.124 SAMPSON, DIAZ, HASSELL-THOMPSON
Domestic Violence and Destruction of Marital Property
This law corrects the holding in People v. Person, 658 N.Y.S.2d .372 (2nd Dep’t 1997) that
a husband cannot be charged with criminal mischief when he destroys the personal property
of his estranged wife because the property was marital property in which the husband had a
proprietary interest. In that case, Mr. Person forcibly entered Ms. Person’s dwelling, assaulted
her, and destroyed her clothing, toiletries, the contents of her handbag, and various items of
household furnishings. Although convicted of criminal mischief in the fourth degree at the
trial level, the Appellate Division reversed, holding that “because the defendant had an equitable
interest in the items he was charged with damaging or stealing... he could not be charged
with these crimes.” The Person case misapplies the Domestic Relations Law, which defines
marital property for purposes of equitable distribution, to a domestic violence crime under the
Penal Law. As the New York State Commission on Domestic Violence Fatalities stated in its 1997
report to the Governor: “The court in Person appears to have equated marital property for
purposes of distribution between the parties Upon divorce, with household property in which a
spouse has at least a proprietary interest. The explanatory comment published with the Criminal
Mischief sections of the Penal Law states: ‘Property is that of another person...if anyone,
other than the defendant, has a possessory or proprietary interest in such tangible property.
The Commission recommended legislation to clarify that the criminal mischief sections of the
Penal Law do apply when a person destroys marital or jointly owned property, committing a
form of domestic violence. Aggressors in domestic disputes often commit domestic violence by
destroying or damaging property of their victim with the intent to harass, annoy, or alarm. This
type of behavior is a form of domestic violence which the Person case in effect sanctions. The
case directly contradicts the strong public policy in this State of protecting the victims of domestic
violence. The bill implements this policy by amending each count of criminal mischief
to include sanctions where a person has a possessory or proprietary interest with the intent to
annoy, harass or alarm that other person. Lastly, the bill includes the crime of criminal mischief
in the 2nd, 3rd, and 4th degree in the list of crimes that can constitute a family offense under
the Criminal Procedure Law and the Family Court Act so that victims of this form of domestic
violence have the option of going to Family Court for an order of protection when a person
commits domestic violence by destroying property.
S.137 SAMPSON, DIAZ, DILAN, HASSELL-THOMPSON
Protection Against Spyware
The act aims to protect the privacy of computer users by banning the dissemination of computer
spyware and software without the authorization of the owner of a computer. Computer
users download information from the internet without truly understanding what functions the
programs will have. Many times computer users will encounter the opportunity to download a
computer program from the internet that they believe will give them an innocuous program that
will help them organize their lives. However, it sometimes is not known to the computer user
what other functions the computer program will actually have and these seemingly harmless
programs may also send information to a third party such as a marketing firm, or worse a person
who wishes to commit identity theft. Key-logging computer programs record all of the keystrokes
that a computer user makes while using a computer. Because many use computers for banking
and credit card transactions, these programs allow for criminals to commit identity theft. Therefore,
this legislation includes (but is not limited to) key-logging within the spyware ban.
Standing Committee on Crime Victims, Crime and Correction | 2009-2010 Report 63