Revision: Jan. 20, 2009, midnight
HB 471-FN – AS INTRODUCED
2009 SESSION
04/05
HOUSE BILL 471-FN
AN ACT relative to organized retail crime in New Hampshire.
SPONSORS: Rep. Pantelakos, Rock 16
COMMITTEE: Criminal Justice and Public Safety
This bill:
I. Permits the consolidation of prosecutions for acts which constitute a pattern of criminal activity.
II. Imposes criminal penalties for fraudulent retail transactions.
III. Provides for an enhanced penalty for persons knowingly activating an audible alarm system to avoid detection or apprehension, or cause a distraction during the commission of the offense.
IV. Imposes criminal penalties for sale of stolen property on an online marketplace.
V. Imposes a criminal penalty for organized retail criminal activity.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
09-0281
04/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to organized retail crime in New Hampshire.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Pattern of Criminal Activity. Amend RSA 637 by inserting after section 1 the following new section:
637:1-a Pattern of Criminal Activity. Venue for criminal prosecutions to enforce the provisions of this chapter shall be proper in the court with jurisdiction in any county in which at least one of the offenses constituting part of the alleged pattern of criminal activity occurred. In cases where the alleged pattern of criminal activity occurs in 2 or more counties, criminal prosecution of all offenses which comprise the alleged pattern of criminal activity may, at the discretion of the county attorneys involved, be consolidated and brought in any county in which at least one of the offenses constituting part of the alleged pattern of criminal activity occurred. In such cases, the sum of the value of all property stolen shall be the value in determining the penalty under RSA 637:11.
2 New Paragraph; Definitions; Pattern of Criminal Activity. Amend RSA 637:2 by inserting after paragraph II the following new paragraph:
II-a. “Pattern of criminal activity” means:
(a) Commission of 2 or more criminal offenses under this chapter or under RSA 644:17 which are part of the same plan or which contain similar elements; or
(b) Commission of 2 or more criminal offenses under this chapter or under RSA 644:17 occurring within 30 days of each other.
3 New Section; Fraud; Fraudulent Retail Transactions. Amend RSA 638 by inserting after section 15-a the following new section:
638:15-b Fraudulent Retail Transactions.
I. A person shall be guilty of a class A misdemeanor if such person knowingly possesses, uses, transfers, manufactures, alters, counterfeits, or reproduces a retail sales receipt or universal product code label with the intent of depriving a merchant of goods or merchandise.
II. A person shall be guilty of a class B felony if such person knowingly possesses, uses, transfers, manufactures, alters, counterfeits, or reproduces 15 or more retail sales receipts or universal product code labels or possesses a device the purpose of which is to manufacture counterfeit retail sales receipts or universal product code labels with the intent of depriving a merchant of goods or merchandise.
III. In this section, “merchant” shall have the same meaning as in RSA 644:17, III(a).
4 New Sections; Theft; Organized Retail Criminal Activity. Amend RSA 637 by inserting after section 10-a the following new sections:
637:10-b Organized Retail Criminal Activity Any person who engages in a pattern of criminal activity in 2 or more counties in this state or who conspires to engage in a pattern of criminal activity shall be guilty of a class B felony, or subject to a fine not exceeding $25,000, or both.
637:10-c Theft With Intent to Resell on an Online Marketplace.
I. Any person who commits theft of property as defined in this chapter with a value of $1,000 or more with the intent to resell such property on an online marketplace shall be guilty of a class B felony.
II. Any person who sells, attempts to sell, or possesses with the intent to resell any stolen property on an online marketplace with a value of $1,000 or more who knew or should have known that such property was stolen, or believing that it has probably been stolen, with a purpose to deprive the owner thereof shall be guilty of a class A felony.
III. Any person who owns or operates an online marketplace and who facilitates or aids in any way the sale or attempted sale of any property with a value of $1,000 or more which the owner or operator knew or should have known was stolen shall be guilty of a class A felony.
IV. The owner or operator of an online marketplace shall, upon receipt of notice that provides a reasonable basis for believing that the property is stolen, immediately terminate the sale and provide notice of the termination to the parties.
V. It shall be an affirmative defense to prosecution under this section if the owner or operator of an online marketplace:
(a) Furnishes proof that he or she was presented with written evidence that specifically identifies the property being sold; or
(b) Is unable to terminate the sale of property which is stolen or which he or she believes is stolen due to a mistake, or a technical problem associated with the website.
VI. Any property used in committing, or to facilitate the commission of, an offense under this section shall be subject to forfeiture proceedings.
VII. In this section, “online marketplace” means any website operated by any person or entity which is used to facilitate the sale of goods or services.
5 New Paragraph; Willful Concealment and Shoplifting; Venue. Amend RSA 644:17 by inserting after paragraph IV the following new paragraph:
V. The provisions of RSA 637:1-a relative to venue for prosecuting cases involving a pattern of criminal activity shall apply to the prosecution of offenses under this section.
6 New Subparagraph; Willful Concealment and Shoplifting; Use of Emergency Exit. Amend RSA 651:6, I by inserting after subparagraph (q) the following new subparagraph:
(r) Has committed an offense under RSA 644:17 where such person knowingly activated an audible alarm system to avoid detection or apprehension, or cause a distraction during the commission of the offense.
7 Effective Date. This act shall take effect January 1, 2010.
LBAO
09-0281
01/16/09
HB 471-FN - FISCAL NOTE
AN ACT relative to organized retail crime in New Hampshire.
FISCAL IMPACT:
The Judicial Branch, the Judicial Council, the Department of Corrections, and the New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2010 and each year thereafter. There will be no fiscal impact on local expenditures or state, county, and local revenue.
METHODOLOGY:
The Judicial Branch states this bill establishes several new provisions relating to organized retail crime in New Hampshire. Specifically, the bill establishes a class A misdemeanor, class B felony, and class A felony for various violations related to organized retail crime. The bill also makes property used in committing offenses under RSA 637:10-c subject to forfeiture. Lastly, the bill provides for an extended term of imprisonment if a person knowingly activates an audible alarm system to avoid detection or apprehension, or causes a distraction while willfully concealing and shoplifting. The Branch states the cost of a class A misdemeanor case is $51.14 in FY 2010 and each year thereafter. The Branch states the felony types proposed in this bill would be treated as routine felony cases. The Branch states the cost of a routine felony case is $335.98 in FY 2010 and each year thereafter. The Branch has no information to estimate how many charges would be brought as a result of the changes contained in the bill to determine the fiscal impact on expenditures. However, if a single case were to be appealed to the New Hampshire Supreme Court, the fiscal impact would be in excess of $10,000. The Branch has no information to determine how many forfeiture proceedings would go before the superior court to determine a fiscal impact. Lastly, extended terms of imprisonment do not add cases but can lead to more and longer trials because of the greater penalties at stake. The Branch states the cost of a jury trial day in the superior court, where most of the extended term of imprisonment charges would be heard, is $1,662 in FY 2010 and each year thereafter.
The Judicial Council states this bill may result in an indeterminable increase in general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $756.24 per felony is charged by a public defender or contract attorney. If an assigned counsel attorney is used, the fee is $60 per hour with a cap of $4,100 for a felony charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney
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09-0281
01/16/09
and assigned counsel rates for Supreme Court appeals is $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2008 was $32,753. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2008 was $779. The Department states this bill may increase expenditures by an indeterminable amount, but is unable to predict the number of individuals that might be impacted.
The New Hampshire Association of Counties states to the extent an individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $30,165 a year.