§ 632-A — Crime victims

§ 632-a. Crime victims. 1. For the purposes of this section:\n (a) "Crime" means (i) any felony defined in the laws of the state; or\n(ii) an offense in any jurisdiction which includes all of the essential\nelements of any felony defined in the laws of this state and: (A) the\ncrime victim, as defined in subparagraph (i) of paragraph (d) of this\nsubdivision, was a resident of this state at the time of the commission\nof the offense; or (B) the act or acts constituting the offense occurred\nin whole or in part in this state.\n (b) "Profits from a crime" means (i) any property obtained through or\nincome generated from the commission of a crime of which the defendant\nwas convicted; (ii) any property obtained by or income generated from\nthe sale, conversion or exchange of proceeds of a crime, including any\ngain realized by such sale, conversion or exchange; and (iii) any\nproperty which the defendant obtained or income generated as a result of\nhaving committed the crime, including any assets obtained through the\nuse of unique knowledge obtained during the commission of, or in\npreparation for the commission of, a crime, as well as any property\nobtained by or income generated from the sale, conversion or exchange of\nsuch property and any gain realized by such sale, conversion or\nexchange.\n (c) "Funds of a convicted person" means all funds and property\nreceived from any source by a person convicted of a specified crime, or\nby the representative of such person as defined in subdivision six of\nsection six hundred twenty-one of this article excluding child support\nand earned income, where such person:\n (i) is an incarcerated individual serving a sentence with the\ndepartment of corrections and community supervision or a prisoner\nconfined at a local correctional facility or federal correctional\ninstitute, and includes funds that a superintendent, sheriff or\nmunicipal official receives on behalf of an incarcerated individual or\nprisoner and deposits in an incarcerated individual account to the\ncredit of the incarcerated individual pursuant to section one hundred\nsixteen of the correction law or deposits in a prisoner account to the\ncredit of the prisoner pursuant to section five hundred-c of the\ncorrection law; or\n (ii) is not an incarcerated individual or prisoner but who is serving\na sentence of probation or conditional discharge or is presently subject\nto an undischarged indeterminate, determinate or definite term of\nimprisonment or period of post-release supervision or term of supervised\nrelease, but shall include earned income earned during a period in which\nsuch person was not in compliance with the conditions of his or her\nprobation, parole, conditional release, period of post-release\nsupervision by the department of corrections and community supervision\nor term of supervised release with the United States probation office or\nUnited States parole commission. For purposes of this subparagraph, such\nperiod of non-compliance shall be measured, as applicable, from the\nearliest date of delinquency determined by the department of corrections\nand community supervision, or from the earliest date on which a\ndeclaration of delinquency is filed pursuant to section 410.30 of the\ncriminal procedure law and thereafter sustained, or from the earliest\ndate of delinquency determined in accordance with applicable federal\nlaw, rules or regulations, and shall continue until a final\ndetermination sustaining the violation has been made by the trial court,\nthe department of corrections and community supervision, or appropriate\nfederal authority; or\n (iii) is no longer subject to a sentence of probation or conditional\ndischarge or indeterminate, determinate or definite term of imprisonment\nor period of post-release supervision or term of supervised release, and\nwhere within the previous three years: the full or maximum term or\nperiod terminated or expired or such person was granted a discharge by\nthe state board of parole or the department of corrections and community\nsupervision pursuant to applicable law, or granted a discharge or\ntermination from probation pursuant to applicable law or granted a\ndischarge or termination under applicable federal or state law, rules or\nregulations prior to the expiration of such full or maximum term or\nperiod; and includes only: (A) those funds paid to such person as a\nresult of any interest, right, right of action, asset, share, claim,\nrecovery or benefit of any kind that the person obtained, or that\naccrued in favor of such person, prior to the expiration of such\nsentence, term or period; (B) any recovery or award collected in a\nlawsuit after expiration of such sentence where the right or cause of\naction accrued prior to the expiration or service of such sentence; and\n(C) earned income earned during a period in which such person was not in\ncompliance with the conditions of his or her probation, parole,\nconditional release, period of post-release supervision by the\ndepartment of corrections and community supervision or term of\nsupervised release with the United States probation office or United\nStates parole commission. For purposes of this subparagraph, such period\nof non-compliance shall be measured, as applicable, from the earliest\ndate of delinquency determined by the department of corrections and\ncommunity supervision, or from the earliest date on which a declaration\nof delinquency is filed pursuant to section 410.30 of the criminal\nprocedure law and thereafter sustained, or from the earliest date of\ndelinquency determined in accordance with applicable federal law, rules\nor regulations, and shall continue until a final determination\nsustaining the violation has been made by the trial court, the\ndepartment of corrections and community supervision, or appropriate\nfederal authority.\n (d) "Crime victim" means (i) the victim of a crime; (ii) the\nrepresentative of a crime victim as defined in subdivision six of\nsection six hundred twenty-one of this article; (iii) a good samaritan\nas defined in subdivision seven of section six hundred twenty-one of\nthis article; (iv) the office of victim services or other governmental\nagency that has received an application for or provided financial\nassistance or compensation to the victim.\n (e) (i) "Specified crime" means:\n (A) a violent felony offense as defined in subdivision one of section\n70.02 of the penal law;\n (B) a class B felony offense defined in the penal law;\n (C) an offense for which a merit time allowance may not be received\nagainst the sentence pursuant to paragraph (d) of subdivision one of\nsection eight hundred three of the correction law;\n (D) an offense defined in the penal law that is titled in such law as\na felony in the first degree;\n (E) grand larceny in the fourth degree as defined in subdivision six\nof section 155.30 or grand larceny in the second degree as defined in\nsection 155.40 of the penal law;\n (F) criminal possession of stolen property in the second degree as\ndefined in section 165.52 of the penal law; or\n (G) an offense in any jurisdiction which includes all of the essential\nelements of any of the crimes specified in clauses (A) through (F) of\nthis subparagraph and either the crime victim as defined in subparagraph\n(i) of paragraph (d) of this subdivision was a resident of this state at\nthe time of the commission of the offense or the act or acts\nconstituting the crime occurred in whole or in part in this state.\n (ii) Notwithstanding the provisions of subparagraph (i) of this\nparagraph a "specified crime" shall not mean or include an offense\ndefined in any of the following articles of the penal law: articles one\nhundred fifty-eight, one hundred seventy-eight, two hundred twenty, two\nhundred twenty-one, two hundred twenty-five, and two hundred thirty.\n (f) "Earned income" means income derived from one's own labor or\nthrough active participation in a business as distinguished from income\nfrom, for example, dividends or investments.\n 2. (a) Every person, firm, corporation, partnership, association or\nother legal entity, or representative of such person, firm, corporation,\npartnership, association or entity, which knowingly contracts for, pays,\nor agrees to pay: (i) any profits from a crime as defined in paragraph\n(b) of subdivision one of this section, to a person charged with or\nconvicted of that crime, or to the representative of such person as\ndefined in subdivision six of section six hundred twenty-one of this\narticle; or (ii) any funds of a convicted person, as defined in\nparagraph (c) of subdivision one of this section, where such conviction\nis for a specified crime and the value, combined value or aggregate\nvalue of the payment or payments of such funds exceeds or will exceed\nten thousand dollars, shall give written notice to the office of the\npayment or obligation to pay as soon as practicable after discovering\nthat the payment or intended payment constitutes profits from a crime or\nfunds of a convicted person.\n (b) Notwithstanding subparagraph (ii) of paragraph (a) of this\nsubdivision, whenever the payment or obligation to pay involves funds of\na convicted person that a superintendent, sheriff or municipal official\nreceives or will receive on behalf of an incarcerated individual serving\na sentence with the department of corrections and community supervision\nor prisoner confined at a local correctional facility and deposits or\nwill deposit in an incarcerated individual account to the credit of the\nincarcerated individual or in a prisoner account to the credit of the\nprisoner, and the value, combined value or aggregate value of such funds\nexceeds or will exceed ten thousand dollars, the superintendent, sheriff\nor municipal official shall also give written notice to the office.\n Further, whenever the state or subdivision of the state makes payment\nor has an obligation to pay funds of a convicted person, as defined in\nsubparagraph (ii) or (iii) of paragraph (c) of subdivision one of this\nsection, and the value, combined value or aggregate value of such funds\nexceeds or will exceed ten thousand dollars, the state or subdivision of\nthe state shall also give written notice to the office.\n In all other instances where the payment or obligation to pay involves\nfunds of a convicted person, as defined in subparagraph (ii) or (iii) of\nparagraph (c) of subdivision one of this section, and the value,\ncombined value or aggregate value of such funds exceeds or will exceed\nten thousand dollars, the convicted person who receives or will receive\nsuch funds, or the representative of such person as defined in\nsubdivision six of section six hundred twenty-one of this article, shall\ngive written notice to the office.\n (c) The office, upon receipt of notice of a contract, an agreement to\npay or payment of profits from a crime or funds of a convicted person\npursuant to paragraph (a) or (b) of this subdivision, or upon receipt of\nnotice of funds of a convicted person from the superintendent, sheriff\nor municipal official of the facility where the incarcerated individual\nor prisoner is confined pursuant to section one hundred sixteen or five\nhundred-c of the correction law, shall notify all known crime victims of\nthe existence of such profits or funds at their last known address.\n 3. Notwithstanding any inconsistent provision of the estates, powers\nand trusts law or the civil practice law and rules with respect to the\ntimely bringing of an action, any crime victim shall have the right to\nbring a civil action in a court of competent jurisdiction to recover\nmoney damages from a person convicted of a crime of which the crime\nvictim is a victim, or the representative of that convicted person,\nwithin three years of the discovery of any profits from a crime or funds\nof a convicted person, as those terms are defined in this section.\nNotwithstanding any other provision of law to the contrary, a judgment\nobtained pursuant to this section shall not be subject to execution or\nenforcement against the first one thousand dollars deposited in an\nincarcerated individual account to the credit of the incarcerated\nindividual pursuant to section one hundred sixteen of the correction law\nor in a prisoner account to the credit of the prisoner pursuant to\nsection five hundred-c of the correction law. In addition, where the\ncivil action involves funds of a convicted person and such funds were\nrecovered by the convicted person pursuant to a judgment obtained in a\ncivil action, a judgment obtained pursuant to this section may not be\nsubject to execution or enforcement against a portion thereof in\naccordance with subdivision (k) of section fifty-two hundred five of the\ncivil practice law and rules. If an action is filed pursuant to this\nsubdivision after the expiration of all other applicable statutes of\nlimitation, any other crime victims must file any action for damages as\na result of the crime within three years of the actual discovery of such\nprofits or funds, or within three years of actual notice received from\nor notice published by the office of such discovery, whichever is later.\n 4. Upon filing an action pursuant to subdivision three of this\nsection, the crime victim shall give notice to the office of the filing\nby delivering a copy of the summons and complaint to the office. The\ncrime victim may also give such notice to the office prior to filing the\naction so as to allow the office to apply for any appropriate\nprovisional remedies which are otherwise authorized to be invoked prior\nto the commencement of an action.\n 5. Upon receipt of a copy of a summons and complaint, or upon receipt\nof notice from the crime victim prior to filing the action as provided\nin subdivision four of this section, the office shall immediately take\nsuch actions as are necessary to:\n (a) notify all other known crime victims of the alleged existence of\nprofits from a crime or funds of a convicted person by certified mail,\nreturn receipt requested, where the victims' names and addresses are\nknown by the office;\n (b) publish, at least once every six months for three years from the\ndate it is initially notified by a victim, pursuant to subdivision four\nof this section, a legal notice in newspapers of general circulation in\nthe county wherein the crime was committed and in counties contiguous to\nsuch county advising any crime victims of the existence of profits from\na crime or funds of a convicted person. For crimes committed in a county\nlocated within a city having a population of one million or more, the\nnotice shall be published in newspapers having general circulation in\nsuch city. The office may, in its discretion, provide for such\nadditional notice as it deems necessary;\n (c) avoid the wasting of the assets identified in the complaint as the\nnewly discovered profits from a crime or as funds of a convicted person,\nin any manner consistent with subdivision six of this section.\n 6. The office, acting on behalf of the plaintiff and all other\nvictims, shall have the right to apply for any and all provisional\nremedies that are also otherwise available to the plaintiff.\n (a) The provisional remedies of attachment, injunction, receivership\nand notice of pendency available to the plaintiff under the civil\npractice law and rules, shall also be available to the office in all\nactions under this section.\n (b) On a motion for a provisional remedy, the moving party shall state\nwhether any other provisional remedy has previously been sought in the\nsame action against the same defendant. The court may require the moving\nparty to elect between those remedies to which it would otherwise be\nentitled.\n 7. (a) (i) Whenever it appears that a person or entity has knowingly\nand willfully failed to give notice in violation of paragraph (a) or (b)\nof subdivision two of this section, other than the state, a subdivision\nof the state, or a person who is a superintendent, sheriff or municipal\nofficial required to give notice pursuant to this section or section one\nhundred sixteen or section five hundred-c of the correction law, the\noffice shall be authorized to serve a notice of hearing upon the person\nor entity by personal service or by registered or certified mail. The\nnotice shall contain the time, place and purpose of the hearing. In\naddition, the notice shall be accompanied by a petition alleging facts\nof an evidentiary character that support or tend to support that the\nperson or entity, who shall be named therein as a respondent, knowingly\nand willfully failed to give notice in violation of paragraph (a) or (b)\nof subdivision two of this section. Service of the notice and petition\nshall take place at least fifteen days prior to the date of the hearing.\n (ii) The director or any individual designated by the director, shall\npreside over the hearing, shall administer oaths, may issue subpoenas\nand shall not be bound by the rules of evidence or civil procedure, but\nhis or her determination shall be based on a preponderance of the\nevidence. At the hearing, the burden of proof shall be on the office.\nThe office shall produce witnesses and present evidence in support of\nthe alleged violation, which may include relevant hearsay evidence. The\nrespondent, who may appear personally at the hearing, shall have the\nright of counsel and may cross-examine witnesses and produce evidence\nand witnesses in his or her behalf, which may include relevant hearsay\nevidence. The issue of whether the person who received an alleged\npayment or obligation to pay committed the underlying crime shall not be\nre-litigated at the hearing. Where the alleged violation is the failure\nto give notice of a payment amount involving two or more payments the\ncombined value or aggregate value of which exceeds ten thousand dollars,\nno violation shall be found unless it is shown that such payments were\nintentionally structured to conceal their character as funds of a\nconvicted person, as defined in this section.\n (iii) At the conclusion of the hearing, if the director or designated\nindividual is not satisfied that there is a preponderance of evidence in\nsupport of a violation, the director or designated individual shall\ndismiss the petition. If the director or designated individual is\nsatisfied that there is a preponderance of the evidence that the\nrespondent committed one or more violations, the director or designated\nindividual shall so find. Upon such a finding, the director or\ndesignated individual shall prepare a written statement, to be made\navailable to the respondent and respondent's counsel, indicating the\nevidence relied on and the reasons for finding the violation.\n (iv) The director shall adopt, promulgate, amend and repeal\nadministrative rules and regulations governing the procedures to be\nfollowed with respect to hearings, including rules and regulations for\nthe administrative appeal of a decision made pursuant to this paragraph,\nprovided such rules and regulations are consistent with the provisions\nof this subdivision.\n (b)(i) Whenever it is found pursuant to paragraph (a) of this\nsubdivision that a respondent knowingly and willfully failed to give\nnotice in violation of paragraph (a) or (b) of subdivision two of this\nsection, the office shall impose an assessment of up to the amount of\nthe payment or obligation to pay and a civil penalty of up to one\nthousand dollars or ten percent of the payment or obligation to pay,\nwhichever is greater. If a respondent fails to pay the assessment and\ncivil penalty imposed pursuant to this paragraph, the assessment and\ncivil penalty may be recovered from the respondent by an action brought\nby the attorney general, upon the request of the office, in any court of\ncompetent jurisdiction. The office shall deposit the assessment in an\nescrow account pending the expiration of the three year statute of\nlimitations authorized by subdivision three of this section to preserve\nsuch funds to satisfy a civil judgment in favor of a person who is a\nvictim of a crime committed by the convicted person to whom such failure\nto give notice relates. The office shall pay the civil penalty to the\nstate comptroller who shall deposit the money in the state treasury\npursuant to section one hundred twenty-one of the state finance law to\nthe credit of the criminal justice improvement account established by\nsection ninety-seven-bb of the state finance law.\n (ii) The office shall then notify any crime victim or crime victims,\nwho may have a claim against the convicted person, of the existence of\nsuch moneys. Such notice shall instruct such person or persons that they\nmay have a right to commence a civil action against the convicted\nperson, as well as any other information deemed necessary by the office.\n (iii) Upon a crime victim's presentation to the office of a civil\njudgment for damages incurred as a result of the crime, the office shall\nsatisfy up to one hundred percent of that judgment, including costs and\ndisbursements as taxed by the clerk of the court, with the escrowed fund\nobtained pursuant to this paragraph, but in no event shall the amount of\nall judgments, costs and disbursements satisfied from such escrowed\nfunds exceed the amount in escrow. If more than one such crime victim\nindicates to the office that they intend to commence or have commenced a\ncivil action against the convicted person, the office shall delay\nsatisfying any judgment, costs and disbursements until the claims of all\nsuch crime victims are reduced to judgment. If the aggregate of all\njudgments, costs and disbursement obtained exceeds the amount of\nescrowed funds, the amount used to partially satisfy each judgment shall\nbe reduced to a pro rata share.\n (iv) After expiration of the three year statute of limitations period\nestablished in subdivision three of this section, the office shall\nreview all judgments that have been satisfied from such escrowed funds.\nIn the event no claim was filed or judgment obtained prior to the\nexpiration of the three year statute of limitations, the office shall\nreturn the escrowed amount to the respondent. In the event a claim or\nclaims are pending at the expiration of the statute of limitations, such\nfunds shall remain escrowed until the final determination of all such\nclaims to allow the office to satisfy any judgment which may be obtained\nby the crime victim. Upon the final determination of all such claims and\nthe satisfaction of up to one hundred percent of such claims by the\noffice, the office shall be authorized to impose an additional civil\npenalty of up to one thousand dollars or ten percent of the payment or\nobligation to pay, whichever is greater. Prior to imposing any such\npenalty, the office shall serve a notice upon the respondent by personal\nservice or by registered or certified mail of the intent of the office\nto impose such penalty thirty days after the date of the notice and of\nthe opportunity to submit documentation concerning the office's\ndetermination. After imposing and deducting any such additional civil\npenalty, the office shall distribute such remaining escrowed funds, if\nany, as follows: fifty percent to the state comptroller, who shall\ndeposit the money in the state treasury pursuant to section one hundred\ntwenty-one of the state finance law to the credit of the criminal\njustice improvement account established by section ninety-seven-bb of\nthe state finance law; and fifty percent to the respondent.\n (v) Notwithstanding any provision of law, an alleged failure by a\nconvicted person to give notice under this section may not result in\nproceedings for an alleged violation of the conditions of probation,\nparole, conditional release, post release supervision or supervised\nrelease unless: one or more claims were made by a crime victim against\nthe convicted person pursuant to this section, and the office imposes an\nassessment and/or penalty upon the convicted person pursuant to this\nsection, and the convicted person fails to pay the total amount of the\nassessment and/or penalty within sixty days of the imposition of such\nassessment and/or penalty.\n (vi) Records maintained by the office and proceedings by the office\nbased thereon regarding a claim submitted by a victim or a claimant\nshall be deemed confidential, subject to the exceptions that appear in\nsubdivision one of section six hundred thirty-three of this article.\n