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FINANCIAL EXPLOITATION For Prosecutors. Financial Exploitation Adapted from a 6.16.04 CLE presentation by Elizabeth Loewy, Office of the New York County.

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Presentation on theme: "FINANCIAL EXPLOITATION For Prosecutors. Financial Exploitation Adapted from a 6.16.04 CLE presentation by Elizabeth Loewy, Office of the New York County."— Presentation transcript:


2 Financial Exploitation Adapted from a 6.16.04 CLE presentation by Elizabeth Loewy, Office of the New York County District Attorney, “Financial Exploitation.” ©2004 by Elizabeth Loewy

3 Abuse and Exploitation ELDER ABUSE is defined by many police and prosecutors as any crime or violation committed by a defendant against a member of his or her same family or household. FINANCIAL EXPLOITATION is the unauthorized use of a victim’s funds or resources.

4 Penal law offense charges Violation. Not a crime. Max 15 days. e.g. Disorderly Conduct, Harassment Misdemeanor. Max one year. e.g. Assault 3° Forgery, Theft of Services Felony. More than one year. e.g. Assault 1° and 2°, Grand Larceny, Scheme to Defraud, Robbery

5 The Hate Crimes Act P.L.§485.05 Includes age (over 60) and disability as targeting factors Does not add new charges Application yields increased penalties for those who commit specified offenses and targets a person based on his belief or perception regarding the victim’s race religion, national origin, sexual orientation, age (over 60) or disability.

6 DA gets elder abuse complaints From police. Criminal action commences when an officer has “probable cause.” From civilians: family members, bank personnel, civil attorneys, guardians, judges medical and social service providers, caregivers, concerned neighbors NOT from mandated reporters. There are no mandated reporters other than APS workers, who reported suspected crimes to police.

7 Investigation DA may conduct pre-arrest investigation: interview, collect documents, inspect physical evidence. DA has power to open a Grand Jury investigation and subpoena witnesses to appear and produce documents. Prosecution must commence within 5 years for most felonies, 2 years for misdemeanors, and 1year for violations.

8 Grand Jury May vote an indictment, or Direct the filing of a prosecutor’s information containing on-felony charges, or Direct the removal of the case to Family Court, or Issue a report

9 Criminal Court Defendant is entitled to a speedy trial, typically commencing within 6 months for most felonies, 90 days for a misdemeanor, and 30 for a violation. Cases often adjourned. An order of protection may be issued or extended each time. Felony cases go to Supreme Court. “Family offense” cases may proceed simultaneously in Family and Criminal courts.

10 Sentences with conditions Long term order of protection, up to 5 years beginning when incarceration is completed Restitution of stolen funds. This helps victims who cannot afford to pay for civil litigation to recover stolen funds. Drug or alcohol treatment or psychological treatment programs

11 First consider the victim Does victim suffers mental illness, substance abuse, or dementia? Is victim reluctant to testify? Most are reluctant to testify against child or grandchild.

12 In case of reluctant witnesses Criminal Contempt (violation of an order of protection) may be proven on strength of police officer testifying. Evidence may be gathered for a “victimless” trial. Witness’ attendance can be compelled by subpoena.

13 Evidence Defendant’s statements at time of arrest Medical evidence re injuries Photos/drawings of crime scene /injuries Witness’ observations of victim/defendant Financial record re unauthorized transfers Forensic, e.g. lab analysis, handwriting and, voice analysis Physical evidence from crime scene/defendan

14 If victim mentally impaired Witness must have testimonial capacity in order to testify at trial, C.P.L.§60.20. Court will assess whether or not he/she understands the nature of the oath. If not, witness may be permitted to give unsworn testimony if the court is satisfied that the witness is sufficiently intelligent. No conviction based solely on unsworn testimony

15 Mentally impaired (continued) Elderly witness may have testimonial capacity but little or no memory of the matter in question due to Alzheimer’s disease or other dementia. Consider “Endangering the Welfare of an Incompetent or Physically Disabled Person,” P.L.§260.25, a misdemeanor. May stick against a reckless caregiver or when an assault case is hard to prove Consider “Endangering the welfare of a Vulnerable, Elderly Person,” P.L.§260.32, 260.34, felonies. For paid caregivers

16 Larceny The larceny statute, P.L.§155, does not address the issue of theft from a mentally impaired person. Therefore rely on cases such as People v.Camiola, 225A.D.2d.380 (1 st Dep’t 1996),lv denied 5/14/96, in which the jury was instructed to consider the victim’s capacity to form consent in order to decide whether transfers were trespassory taking or gifts (as contended by defendant). {see Section 10 of Prosecutors Curriculum}

17 Joint bank accounts Larceny involving joint bank accounts often unprovable, B.L.§675 But if a defendant opens a joint account with funds obtained from a mentally incapacitated person, a larceny charge may be supported by the evidence, pursuant to People v. Gbohou, 186 Misc.2d324(Sup. Ct. Bronx Co. 2000). {See Section 10}

18 Powers of attorney Durable powers of attorney can be vehicles for criminal financial exploitation of elderly victims. Sold at stationery stores No legal filing/accounting requirements Neither the larceny statute nor the General Obligations Law address theft through use of a power of attorney.

19 Therefore use case law In New York, an attorney in fact must act as a fiduciary for the principle. See Elco shoes Inc. v. Sisk, 260 N.Y. 100 (1932); Matter of Moglia, 144 A.D.2d347(2d Dep’t 1988). A power of attorney is given with the intent that the agent will use that power “for the benefit of the principal” Id. At 348. Thus siphoning of a principal’s funds for the agent’s personal use is clearly a “wrongful taking,” P.L.§155.05.

20 Convenience accounts Banking Law §678 allows banks to offer accounts strictly for the convenience of the depositor, in which title remains with the depositor (unlike joint accounts). As with a POA, criminal prosecution may be viable if exploiter uses withdrawn funds in a manner which does not benefit the elderly depositor.

21 Growing modes of exploitation Identity theft Predatory lending Telemarketing fraud Systemic schemes involving the above methods are prosecuted on a federal level by the US Department of Justice.

22 Ethical considerations Attempt to prove case without calling the elderly witness if he/she is reluctant to appear. Note: If you do subpoena, and the witness fails to appear, he/she could be charged with Criminal Contempt. Prosecutor must turn over Rosario material to the defense before each and every prosecution witness takes stand. You must turn over any exculpatory information (Brady material) to the defense.

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