§ 165.00 Misapplication of property.
1. A person is guilty of misapplication of property when, knowingly
possessing personal property of another pursuant to an agreement that
the same will be returned to the owner at a future time,
(a) he loans, leases, pledges, pawns or otherwise encumbers such
property without the consent of the owner thereof in such manner as to
create a risk that the owner will not be able to recover it or will
suffer pecuniary loss; or
(b) he intentionally refuses to return personal property valued in
excess of one hundred dollars to the owner pursuant to the terms of the
rental agreement provided that the owner shall have made a written
demand for the return of such personal property in person or by
certified mail at an address indicated in the rental agreement and he
intentionally refuses to return such personal property for a period of
thirty days after such demand has been received or should reasonably
have been received by him. Such written demand shall state: (i) the date
and time at which the personal property was to have been returned under
the rental agreement; (ii) that the owner does not consent to the
continued withholding or retaining of such personal property and demands
its return; and (iii) that the continued withholding or retaining of the
property may constitute a class A misdemeanor punishable by a fine of up
to one thousand dollars or by a sentence to a term of imprisonment for a
period of up to one year or by both such fine and imprisonment.
(c) as used in paragraph (b) of this subdivision and in subdivision
three of this section, the terms owner, personal property, and rental
agreement shall be defined as in subdivision one of section three
hundred ninety-nine-w of the general business law.
2. In any prosecution under paragraph (a) of subdivision one of this
section, it is a defense that, at the time the prosecution was
commenced, (a) the defendant had recovered possession of the property,
unencumbered as a result of the unlawful disposition, and (b) the owner
had suffered no material economic loss as a result of the unlawful
disposition.
3. In any prosecution under paragraph (b) of subdivision one of this
section, it is a defense that at the time the prosecution was commenced,
(a) the owner had recovered possession of the personal property and
suffered no material economic loss as a result of the unlawful
retention; or (b) the defendant is unable to return such personal
property because it has been accidentally destroyed or stolen; or (c)
the owner failed to comply with the provisions of section three hundred
ninety-nine-w of the general business law.
Misapplication of property is a class A misdemeanor.
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