631 - Awards.

§ 631. Awards.  1. No award shall be made unless the office finds that  (a) a crime was committed, (b) such crime directly resulted in  personal  physical  injury  to or the exacerbation of a preexisting disability, or  condition, or death of, the victim,  and  (c)  criminal  justice  agency  records  show  that  such  crime  was  promptly  reported  to the proper  authorities; and in no case may an award  be  made  where  the  criminal  justice agency records show that such report was made more than one week  after  the  occurrence  of  such crime unless the office, for good cause  shown, finds the delay to have been  justified;  provided,  however,  in  cases  involving  an  alleged  sex  offense  as contained in article one  hundred thirty of the penal law or incest as defined in section  255.25,  255.26  or  255.27  of  the penal law or labor trafficking as defined in  section 135.35 of the penal law or sex trafficking as defined in section  230.34 of the penal law or an offense chargeable as a family offense  as  described  in  section  eight  hundred twelve of the family court act or  section 530.11 of the  criminal  procedure  law,  the  criminal  justice  agency report need only be made within a reasonable time considering all  the circumstances, including the victim's physical, emotional and mental  condition  and  family  situation. For the purposes of this subdivision,  "criminal justice agency" shall include, but not be limited to, a police  department, a district attorney's office,  and  any  other  governmental  agency having responsibility for the enforcement of the criminal laws of  the  state provided, however, that in cases involving such sex offense a  criminal justice agency shall also mean a family court,  a  governmental  agency  responsible  for child and/or adult protective services pursuant  to title six of article six of the social services law and/or title  one  of  article  nine-B of the social services law, and any medical facility  established under the  laws  of  the  state  that  provides  a  forensic  physical examination for victims of rape and sexual assault.    1-a.  No award shall be made for a frivolous lawsuit unless the office  finds that the  victim  has  been  awarded  costs  pursuant  to  section  eighty-three hundred three-a of the civil practice law and rules and the  individual  responsible  for  the payment of costs is unable to pay such  costs provided, however, that in no event shall the amount of such costs  exceed two thousand five hundred dollars.    2. Any award made pursuant to this article shall be in an  amount  not  exceeding  out-of-pocket  expenses,  including  indebtedness  reasonably  incurred for medical or other services necessary  as  a  result  of  the  injury  upon  which  the  claim  is  based;  loss of earnings or support  resulting from such injury not to exceed thirty thousand dollars; burial  expenses not exceeding six thousand dollars of a victim who  died  as  a  direct  result of a crime; the costs of crime scene cleanup and securing  of a crime scene not exceeding twenty-five hundred  dollars;  reasonable  relocation  expenses  not exceeding twenty-five hundred dollars; and the  unreimbursed cost of repair or  replacement  of  articles  of  essential  personal  property  lost, damaged or destroyed as a direct result of the  crime. An award for loss of earnings shall include earnings  lost  by  a  parent  or guardian as a result of the hospitalization of a child victim  under age eighteen for injuries sustained as a direct result of a crime.  In addition to the medical or other services necessary as  a  result  of  the  injury  upon  which  the  claim  is based, an award may be made for  rehabilitative occupational training for the purpose of  job  retraining  or  similar  employment-oriented  rehabilitative services based upon the  claimant's medical and employment  history.  For  the  purpose  of  this  subdivision,  rehabilitative occupational training shall include but not  be  limited  to  educational  training  and  expenses.  An   award   for  rehabilitative  occupational  training  may be made to a victim, or to a  family member of a victim where necessary as a direct result of a crime.3. Any award made for  loss  of  earnings  or  support  shall,  unless  reduced  pursuant  to  other provisions of this article, be in an amount  equal to the actual loss sustained,  provided,  however,  that  no  such  award shall exceed six hundred dollars for each week of lost earnings or  support.    Awards  with  respect to livery operator victims pursuant to  paragraphs (f) and  (g)  of  subdivision  one  of  section  six  hundred  twenty-seven  of  this article shall be granted in the amount and in the  manner provided  therein.  The  aggregate  award  for  all  such  losses  pursuant  to  this  subdivision,  including  any awards made pursuant to  paragraphs (f) and  (g)  of  subdivision  one  of  section  six  hundred  twenty-seven  of this article, shall not exceed thirty thousand dollars.  If there are two or more persons entitled to an award as a result of the  death of a person which is the direct result of a crime, the award shall  be apportioned by the office among the claimants.    4. Any award made pursuant to this article shall  be  reduced  by  the  amount  of  any payments received or to be received by the claimant as a  result of the injury (a) from or on behalf of the person  who  committed  the crime, (b) under insurance programs mandated by law, (c) from public  funds,  (d)  under any contract of insurance wherein the claimant is the  insured or beneficiary, (e) as an emergency award  pursuant  to  section  six hundred thirty of this article. Notwithstanding the foregoing, where  the  person  injured is a livery operator victim, because undue hardship  may result to the claimant if immediate payment is not made,  any  award  pursuant  to  paragraphs  (f)  and (g) of subdivision one of section six  hundred twenty-seven of this article shall be granted without  reduction  for workers' compensation benefits to be received, if any.    5.  (a)  In  determining  the  amount  of  an  award, the office shall  determine whether, because of his conduct,  the  victim  of  such  crime  contributed to the infliction of his injury, and the office shall reduce  the  amount  of  the award or reject the claim altogether, in accordance  with such determination.    (b)  Notwithstanding  the  provisions  of  paragraph   (a)   of   this  subdivision,   the   office   shall   disregard  for  this  purpose  the  responsibility of the victim for his own injury where the  record  shows  that  the  person  injured was acting as a good samaritan, as defined in  this article.    (c) Notwithstanding any inconsistent provision of this article,  where  the  person  injured  acted as a good samaritan, the office may, without  regard to the financial difficulty of the claimant, make  an  award  for  out-of-pocket  losses.  Such award may also include compensation for any  loss of property up to five thousand  dollars  suffered  by  the  victim  during the course of his actions as a good samaritan.    (d)  Notwithstanding any inconsistent provision of this article, where  a person acted as a good samaritan, and was killed as a direct result of  the crime, the office may, without regard to the financial difficulty of  the claimant, make a lump sum award to such claimant for actual loss  of  support not to exceed thirty thousand dollars.    (e)  Notwithstanding any inconsistent provision of this article, where  a police officer or firefighter, both  paid  and  volunteer,  dies  from  injuries received in the line of duty as a direct result of a crime, the  office  may, without regard to the financial difficulty of the claimant,  make an award for the unreimbursed counseling expenses of  the  eligible  spouse,  parents,  brothers,  sisters or children of such victim, and/or  the reasonable burial expenses incurred by the claimant.    6. (a) Claims may be approved only if the office finds that unless the  claimant's award  is  approved  he  will  suffer  financial  difficulty.  However,  no finding of financial difficulty is required for a claim for  an emergency award or an award  less  than  five  thousand  dollars.  Indetermining financial difficulty, the office shall consider all relevant  factors, including but not limited to:    (1) the number of claimant's dependents;    (2) reasonable living expenses of the claimant and his family;    (3)  any  special  health,  rehabilitative or educational needs of the  claimant and his dependents;    (4) the claimant's employment situation including income and potential  earning capacity;    (5) the claimant's net financial resources after authorized  deduction  as provided in paragraphs (b) and (c) of this subdivision;    (6)  whether  claimant's  financial  resources  will  become exhausted  during his lifetime; and    (7)  the  nature  and  the  amount  of  claimant's  total   debt   and  liabilities,  including the amount of debt incurred or to be incurred to  pay for losses and expenses of  the  crime,  and  the  extent  to  which  claimant's essential assets will have to be liquidated.    (b)  Claimant's  net  financial  resources  do not include the present  value of future earnings, and shall  be  determined  by  the  office  by  deducting   from   his  total  financial  resources  the  value,  within  reasonable limits, of the following items:    (1) a homestead, not exceeding five hundred  thousand  dollars,  or  a  total of ten years' rent for a renter;    (2)  personal  property  consisting  of clothing and strictly personal  effects;    (3) household furniture, appliances and equipment;    (4) tools and equipment necessary for the claimant's trade, occupation  or business;    (5) a family automobile;    (6) life insurance, except in death claims; and    (7) retirement, education and  health  plans  or  contributions  to  a  retirement or pension program including but not limited to contributions  to:  (i)  employee  profit  sharing  plans, (ii) employee money purchase  plans, (iii) 401 (k) plans, (iv) simplified employee pensions (SEP), (v)  individual retirement accounts (IRA), (vi)  403  (b)  plans,  (vii)  457  plans,  (viii)  Keogh plans, (self employed), and (ix) any other plan or  account for  which  contributions  are  made  primarily  for  retirement  purposes.    (c)  The  office,  after  taking  into  consideration  the  claimant's  financial  resources,  may  exempt  that  portion  of  the  victim's  or  claimant's annual income required to meet reasonable living expenses and  the  value  of  inventory or other property necessary for the claimant's  business or occupation or the production  of  income  required  to  meet  reasonable  living  expenses.  In  no event shall the aggregate value of  exemptions under this paragraph exceed one hundred thousand dollars.    (d) Nothing contained in this subdivision shall be construed  to  mean  that the office must maintain the same standard of living enjoyed by the  claimant prior to the death or injury.    (e)  The  director  shall promulgate such rules and regulations as are  necessary for the implementation of this section.    7. Notwithstanding the provisions of subdivision six of this  section,  an  award  shall  include out-of-pocket expenses, including indebtedness  reasonably incurred by the  victim  of  a  sex  offense  or  the  person  responsible  for  the victim of such sex offense, as such sex offense is  defined in article one hundred thirty of the penal law, for  a  hospital  or   medical   examination  in  connection  with  the  investigation  or  prosecution of any such offense.    8. Notwithstanding the provisions of subdivisions one, two  and  three  of  this  section,  an  elderly  or  disabled  victim  who  has not beenphysically injured as a direct result of a crime, shall only be eligible  for  an  award  that  includes  the  unreimbursed  cost  of  repair   or  replacement  of  essential personal property that has been lost, damaged  or  destroyed  as  a  direct  result of a crime, transportation expenses  incurred  for  necessary  court  appearances  in  connection  with   the  prosecution  of  such  crimes  and  the unreimbursed cost of counselling  provided to the elderly or disabled  victim  on  account  of  mental  or  emotional  stress  or  financial  counselling provided to the elderly or  disabled victim on account of financial difficulty  resulting  from  the  incident  in  which  the crime occurred if such counselling or financial  counselling is commenced within one year from the date of the incident.    9. Any award made for the cost of repair or replacement  of  essential  personal property, including cash losses of essential personal property,  shall  be  limited to an amount of five hundred dollars, except that all  cash losses of essential personal  property  shall  be  limited  to  the  amount of one hundred dollars.    10.  Notwithstanding  any  contrary  provision  of law, an award shall  include reasonable transportation expenses incurred for necessary  court  appearances in connection with the prosecution of such crimes upon which  the claim is based.    11.  Notwithstanding the provisions of subdivisions one, two and three  of this section, an individual who was a victim of either the  crime  of  unlawful  imprisonment  in the first degree as defined in section 135.10  of the penal law, kidnapping in the second degree as defined in  section  135.20  of the penal law or kidnapping in the first degree as defined in  section 135.25 of the penal law who has not been physically injured as a  direct result of such crime shall only be eligible  for  an  award  that  includes  loss  of  earnings  or  support  and the unreimbursed costs of  counseling provided to such victim on account  of  mental  or  emotional  stress resulting from the incident in which the crime occurred.    12.  Notwithstanding the provisions of subdivisions one, two and three  of this section, an individual who was a victim of either the  crime  of  menacing  in the second degree as defined in subdivision two or three of  section 120.14 of the penal law, menacing in the first degree as defined  in section 120.13 of the penal law, harassment in the second  degree  as  defined  in subdivision two or three of section 240.26 of the penal law,  harassment in the first degree as defined in section 240.25 of the penal  law,  aggravated  harassment  in  the  second  degree  as   defined   in  subdivision  four  of  section  240.30  of  the  penal  law,  aggravated  harassment in the first degree as defined in subdivision two of  section  240.31  of  the  penal  law,  criminal  contempt  in the first degree as  defined in paragraph (ii) or (iv) of subdivision (b) or subdivision  (c)  of  section  215.51  of the penal law, or stalking in the fourth, third,  second or first degree as defined in sections 120.45, 120.50, 120.55 and  120.60 of the penal law,  respectively,  who  has  not  been  physically  injured  as  a direct result of such crime shall only be eligible for an  award that includes loss of earning or support, the unreimbursed cost of  repair or replacement of essential personal property that has been lost,  damaged or destroyed as a direct result of such crime, the  unreimbursed  cost  for  security  devices  to enhance the personal protection of such  victim, transportation expenses incurred for necessary court expenses in  connection with the prosecution of such crime, the unreimbursed costs of  counseling provided to such victim on account  of  mental  or  emotional  stress  resulting  from  the  incident  in  which  the  crime  occurred,  reasonable relocation expenses, and for occupational or job training.    13. Notwithstanding any other provision of law, rule, or regulation to  the contrary, when any New York state  accredited  hospital,  accredited  sexual  assault  examiner  program,  or  licensed  health  care providerfurnishes services to any sexual assault  survivor,  including  but  not  limited to a health care forensic examination in accordance with the sex  offense  evidence  collection  protocol and standards established by the  department of health, such hospital, sexual assault examiner program, or  licensed  healthcare  provider shall provide such services to the person  without charge and shall  bill  the  office  directly.  The  office,  in  consultation  with  the  department of health, shall define the specific  services to be covered by the sexual assault forensic exam reimbursement  fee, which  must  include  at  a  minimum  forensic  examiner  services,  hospital  or  healthcare  facility  services  related  to  the exam, and  related   laboratory   tests   and   pharmaceuticals.   Follow-up    HIV  post-exposure   prophylaxis   costs  shall  continue  to  be  reimbursed  according to established office procedure. The office,  in  consultation  with  the  department  of  health,  shall  also  generate  the necessary  regulations and forms for the direct reimbursement procedure.  The  rate  for  reimbursement shall be the amount of itemized charges not exceeding  eight hundred dollars, to be  reviewed  and  adjusted  annually  by  the  office  in  consultation  with  the  department of health. The hospital,  sexual assault examiner program, or licensed health care  provider  must  accept  this  fee  as  payment  in full for these specified services. No  additional billing of the survivor for said services is  permissible.  A  sexual  assault  survivor  may  voluntarily assign any private insurance  benefits to which she or he is  entitled  for  the  healthcare  forensic  examination,  in  which case the hospital or healthcare provider may not  charge the office.  A  hospital,  sexual  assault  examiner  program  or  licensed  health  care provider shall, at the time of the initial visit,  request assignment of any private health insurance benefits to which the  sexual assault survivor is entitled on a form prescribed by the  office;  provided,  however, such sexual assault survivor shall be advised orally  and in writing that he or she may decline to  provide  such  information  regarding  private  health insurance benefits if he or she believes that  the provision of such information would substantially interfere with his  or her personal privacy or safety and in such event, the sexual  assault  forensic  exam  fee  shall  be  paid  by the office. Such sexual assault  survivor shall also be  advised  that  providing  such  information  may  provide additional resources to pay for services to other sexual assault  victims.  If  he  or  she  declines  to  provide  such  health insurance  information, he or she shall indicate such decision on the form provided  by the hospital, sexual assault examiner program or licensed health care  provider, which form shall be prescribed by the office.    14. Notwithstanding any inconsistent provision of this article,  where  a  victim  dies  from  injuries received as a direct result of the World  Trade Center terrorist attacks on September eleventh, two thousand  one,  the  office  may  make  an award for the unreimbursed and unreimbursable  expense or indebtedness reasonably incurred for the cost  of  counseling  for  the eligible spouse, grandparents, parents, stepparents, guardians,  brothers, sisters, stepbrothers, stepsisters, children, or  stepchildren  of  such  victim.  Any  award  for  such  expense  incurred on or before  December thirty-first, two thousand seven, shall be made without  regard  to the financial difficulty of the claimant.    15.  Notwithstanding any inconsistent provision of this article, where  a victim is injured as  a  direct  result  of  the  World  Trade  Center  terrorist  attacks  on  September eleventh, two thousand one, the office  may make an award for the unreimbursed  and  unreimbursable  expense  or  indebtedness  reasonably  incurred  by  the claimant for medical care or  counseling services necessary as a result of such injury. Any award  for  such   expense   or   indebtedness   incurred   on  or  before  Decemberthirty-first, two thousand seven, shall be made without  regard  to  the  financial difficulty of the claimant.    16.  Notwithstanding  any  inconsistent provision of this article, and  without regard to the financial difficulty  of  the  claimant,  where  a  victim dies from injuries received as a direct result of the World Trade  Center  terrorist  attacks  on September eleventh, two thousand one, the  office may make an award of reasonable burial expenses for such victim.    17. Notwithstanding the provisions of subdivision one of this section,  where a child victim has not been physically injured as a direct  result  of  a  crime,  or  has  witnessed  a  crime  in which no physical injury  occurred, the claimant shall only be eligible for an award that includes  the unreimbursed cost of repair or  replacement  of  essential  personal  property of the child victim that has been lost, damaged or destroyed as  a  direct  result  of  a  crime, transportation expenses incurred by the  claimant  for  necessary  court  appearances  of  the  child  victim  in  connection  with  the  prosecution of such crimes, and, if counseling is  commenced within  one  year  from  the  date  of  the  incident  or  its  discovery, (1) the unreimbursed cost of counseling provided to the child  victim  on  account  of  mental  or  emotional stress resulting from the  incident in which the crime occurred, and/or (2) the  unreimbursed  cost  of  counseling  provided to the claimant eligible under paragraph (h) of  subdivision one of section six hundred twenty-four of this  article  and  resulting from the incident in which the crime occurred.