632-A - Crime victims.

§ 632-a. Crime victims. 1. For the purposes of this section:    (a)  "Crime" means (i) any felony defined in the laws of the state; or  (ii) an offense in any jurisdiction which includes all of the  essential  elements  of  any  felony defined in the laws of this state and: (A) the  crime victim, as defined in subparagraph (i) of paragraph  (d)  of  this  subdivision,  was a resident of this state at the time of the commission  of the offense; or (B) the act or acts constituting the offense occurred  in whole or in part in this state.    (b) "Profits from a crime" means (i) any property obtained through  or  income  generated  from the commission of a crime of which the defendant  was convicted; (ii) any property obtained by or  income  generated  from  the  sale,  conversion or exchange of proceeds of a crime, including any  gain realized by such  sale,  conversion  or  exchange;  and  (iii)  any  property which the defendant obtained or income generated as a result of  having  committed  the  crime, including any assets obtained through the  use of unique  knowledge  obtained  during  the  commission  of,  or  in  preparation  for  the  commission  of,  a crime, as well as any property  obtained by or income generated from the sale, conversion or exchange of  such property  and  any  gain  realized  by  such  sale,  conversion  or  exchange.    (c)  "Funds  of  a  convicted  person"  means  all  funds and property  received from any source by a person convicted of a specified crime,  or  by  the  representative  of such person as defined in subdivision six of  section six hundred twenty-one of this article excluding  child  support  and earned income, where such person:    (i)   is   an  inmate  serving  a  sentence  with  the  department  of  correctional services or a prisoner confined  at  a  local  correctional  facility  or  federal  correctional institute, and includes funds that a  superintendent, sheriff or municipal official receives on behalf  of  an  inmate  or  prisoner  and deposits in an inmate account to the credit of  the inmate pursuant to section one hundred sixteen of the correction law  or deposits in a prisoner account to the credit of the prisoner pursuant  to section five hundred-c of the correction law; or    (ii) is not an inmate or prisoner but who is  serving  a  sentence  of  probation  or  conditional  discharge  or  is  presently  subject  to an  undischarged indeterminate, determinate or definite term of imprisonment  or period of post-release supervision or term of supervised release, but  shall include earned income earned during a period in which such  person  was  not  in  compliance  with  the  conditions of his or her probation,  parole, conditional release, period of post-release supervision  by  the  division  of parole or term of supervised release with the United States  probation office or United States parole  commission.  For  purposes  of  this  subparagraph,  such period of non-compliance shall be measured, as  applicable, from the earliest date  of  delinquency  determined  by  the  board  or  division  of  parole,  or  from  the earliest date on which a  declaration of delinquency is filed pursuant to section  410.30  of  the  criminal  procedure  law  and thereafter sustained, or from the earliest  date of delinquency determined in  accordance  with  applicable  federal  law,   rules   or   regulations,   and  shall  continue  until  a  final  determination sustaining the violation has been made by the trial court,  board or division of parole, or appropriate federal authority; or    (iii) is no longer subject to a sentence of probation  or  conditional  discharge or indeterminate, determinate or definite term of imprisonment  or period of post-release supervision or term of supervised release, and  where  within  the  previous  three  years:  the full or maximum term or  period terminated or expired or such person was granted a discharge by a  board of parole pursuant to applicable law, or granted  a  discharge  or  termination  from  probation  pursuant  to  applicable  law or granted adischarge or termination under applicable federal or state law, rules or  regulations prior to the expiration of such  full  or  maximum  term  or  period;  and  includes  only:  (A)  those funds paid to such person as a  result  of  any  interest,  right, right of action, asset, share, claim,  recovery or benefit of any  kind  that  the  person  obtained,  or  that  accrued  in  favor  of  such  person,  prior  to  the expiration of such  sentence, term or period; (B) any  recovery  or  award  collected  in  a  lawsuit  after  expiration  of such sentence where the right or cause of  action accrued prior to the expiration or service of such sentence;  and  (C) earned income earned during a period in which such person was not in  compliance  with  the  conditions  of  his  or  her  probation,  parole,  conditional release, period of post-release supervision by the  division  of parole or term of supervised release with the United States probation  office  or  United  States  parole  commission.  For  purposes  of  this  subparagraph, such  period  of  non-compliance  shall  be  measured,  as  applicable,  from  the  earliest  date  of delinquency determined by the  board or division of parole, or  from  the  earliest  date  on  which  a  declaration  of  delinquency  is filed pursuant to section 410.30 of the  criminal procedure law and thereafter sustained, or  from  the  earliest  date  of  delinquency  determined  in accordance with applicable federal  law,  rules  or  regulations,  and  shall   continue   until   a   final  determination sustaining the violation has been made by the trial court,  board or division of parole, or appropriate federal authority.    (d)  "Crime  victim"  means  (i)  the  victim  of  a  crime;  (ii) the  representative of a crime  victim  as  defined  in  subdivision  six  of  section  six  hundred twenty-one of this article; (iii) a good samaritan  as defined in subdivision seven of section  six  hundred  twenty-one  of  this  article;  (iv) the office of victim services or other governmental  agency that has  received  an  application  for  or  provided  financial  assistance or compensation to the victim.    (e) (i) "Specified crime" means:    (A)  a violent felony offense as defined in subdivision one of section  70.02 of the penal law;    (B) a class B felony offense defined in the penal law;    (C) an offense for which a merit time allowance may  not  be  received  against  the  sentence  pursuant  to paragraph (d) of subdivision one of  section eight hundred three of the correction law;    (D) an offense defined in the penal law that is titled in such law  as  a felony in the first degree;    (E)  grand  larceny in the fourth degree as defined in subdivision six  of section 155.30 or grand larceny in the second degree  as  defined  in  section 155.40 of the penal law;    (F)  criminal  possession  of  stolen property in the second degree as  defined in section 165.52 of the penal law; or    (G) an offense in any jurisdiction which includes all of the essential  elements of any of the crimes specified in clauses (A)  through  (F)  of  this subparagraph and either the crime victim as defined in subparagraph  (i) of paragraph (d) of this subdivision was a resident of this state at  the  time  of  the  commission  of  the  offense  or  the  act  or  acts  constituting the crime occurred in whole or in part in this state.    (ii) Notwithstanding  the  provisions  of  subparagraph  (i)  of  this  paragraph  a  "specified  crime"  shall  not  mean or include an offense  defined in any of the following articles of the penal law: articles  one  hundred  fifty-eight, one hundred seventy-eight, two hundred twenty, two  hundred twenty-one, two hundred twenty-five, and two hundred thirty.    (f) "Earned income" means income  derived  from  one's  own  labor  or  through  active participation in a business as distinguished from income  from, for example, dividends or investments.2. (a) Every person, firm, corporation,  partnership,  association  or  other legal entity, or representative of such person, firm, corporation,  partnership, association or entity, which knowingly contracts for, pays,  or  agrees  to pay: (i) any profits from a crime as defined in paragraph  (b)  of  subdivision  one  of  this section, to a person charged with or  convicted of that crime, or to the  representative  of  such  person  as  defined  in  subdivision  six  of section six hundred twenty-one of this  article; or (ii)  any  funds  of  a  convicted  person,  as  defined  in  paragraph  (c) of subdivision one of this section, where such conviction  is for a specified crime and the  value,  combined  value  or  aggregate  value  of  the  payment or payments of such funds exceeds or will exceed  ten thousand dollars, shall give written notice to  the  office  of  the  payment  or  obligation  to pay as soon as practicable after discovering  that the payment or intended payment constitutes profits from a crime or  funds of a convicted person.    (b)  Notwithstanding  subparagraph  (ii)  of  paragraph  (a)  of  this  subdivision, whenever the payment or obligation to pay involves funds of  a  convicted person that a superintendent, sheriff or municipal official  receives or will receive on behalf of an inmate serving a sentence  with  the  department of correctional services or prisoner confined at a local  correctional facility and deposits or will deposit in an inmate  account  to  the  credit  of the inmate or in a prisoner account to the credit of  the prisoner, and the value, combined value or aggregate value  of  such  funds  exceeds  or will exceed ten thousand dollars, the superintendent,  sheriff or municipal official shall also  give  written  notice  to  the  office.    Further,  whenever the state or subdivision of the state makes payment  or has an obligation to pay funds of a convicted person, as  defined  in  subparagraph  (ii)  or (iii) of paragraph (c) of subdivision one of this  section, and the value, combined value or aggregate value of such  funds  exceeds or will exceed ten thousand dollars, the state or subdivision of  the state shall also give written notice to the office.    In all other instances where the payment or obligation to pay involves  funds of a convicted person, as defined in subparagraph (ii) or (iii) of  paragraph  (c)  of  subdivision  one  of  this  section,  and the value,  combined value or aggregate value of such funds exceeds or  will  exceed  ten  thousand dollars, the convicted person who receives or will receive  such  funds,  or  the  representative  of  such  person  as  defined  in  subdivision six of section six hundred twenty-one of this article, shall  give written notice to the office.    (c)  The office, upon receipt of notice of a contract, an agreement to  pay or payment of profits from a crime or funds of  a  convicted  person  pursuant to paragraph (a) or (b) of this subdivision, or upon receipt of  notice  of  funds of a convicted person from the superintendent, sheriff  or municipal official of the facility where the inmate  or  prisoner  is  confined  pursuant  to  section one hundred sixteen or five hundred-c of  the correction  law,  shall  notify  all  known  crime  victims  of  the  existence of such profits or funds at their last known address.    3.  Notwithstanding  any inconsistent provision of the estates, powers  and trusts law or the civil practice law and rules with respect  to  the  timely  bringing  of an action, any crime victim shall have the right to  bring a civil action in a court of  competent  jurisdiction  to  recover  money  damages  from  a  person  convicted of a crime of which the crime  victim is a victim, or the  representative  of  that  convicted  person,  within three years of the discovery of any profits from a crime or funds  of  a  convicted  person,  as  those  terms are defined in this section.  Notwithstanding any other provision of law to the contrary,  a  judgment  obtained  pursuant  to this section shall not be subject to execution orenforcement against the first  one  thousand  dollars  deposited  in  an  inmate  account  to  the  credit  of  the inmate pursuant to section one  hundred sixteen of the correction law or in a prisoner  account  to  the  credit  of  the  prisoner  pursuant  to  section  five  hundred-c of the  correction law. In addition, where the civil action involves funds of  a  convicted  person  and such funds were recovered by the convicted person  pursuant to a judgment obtained in a civil action, a  judgment  obtained  pursuant  to this section may not be subject to execution or enforcement  against a portion thereof in accordance with subdivision (k) of  section  fifty-two hundred five of the civil practice law and rules. If an action  is  filed pursuant to this subdivision after the expiration of all other  applicable statutes of limitation, any other crime victims must file any  action for damages as a result of the crime within three  years  of  the  actual  discovery  of  such  profits  or funds, or within three years of  actual notice received from or notice published by the  office  of  such  discovery, whichever is later.    4.  Upon  filing  an  action  pursuant  to  subdivision  three of this  section, the crime victim shall give notice to the office of the  filing  by  delivering  a  copy  of the summons and complaint to the office. The  crime victim may also give such notice to the office prior to filing the  action  so  as  to  allow  the  office  to  apply  for  any  appropriate  provisional  remedies which are otherwise authorized to be invoked prior  to the commencement of an action.    5. Upon receipt of a copy of a summons and complaint, or upon  receipt  of  notice  from the crime victim prior to filing the action as provided  in subdivision four of this section, the office shall  immediately  take  such actions as are necessary to:    (a)  notify  all other known crime victims of the alleged existence of  profits from a crime or funds of a convicted person by  certified  mail,  return  receipt  requested,  where  the victims' names and addresses are  known by the office;    (b) publish, at least once every six months for three years  from  the  date  it is initially notified by a victim, pursuant to subdivision four  of this section, a legal notice in newspapers of general circulation  in  the county wherein the crime was committed and in counties contiguous to  such  county advising any crime victims of the existence of profits from  a crime or funds of a convicted person. For crimes committed in a county  located within a city having a population of one million  or  more,  the  notice  shall  be  published in newspapers having general circulation in  such  city.  The  office  may,  in  its  discretion,  provide  for  such  additional notice as it deems necessary;    (c) avoid the wasting of the assets identified in the complaint as the  newly discovered profits from a crime or as funds of a convicted person,  in any manner consistent with subdivision six of this section.    6.  The  office,  acting  on  behalf  of  the  plaintiff and all other  victims, shall have the right to  apply  for  any  and  all  provisional  remedies that are also otherwise available to the plaintiff.    (a)  The  provisional remedies of attachment, injunction, receivership  and notice of pendency  available  to  the  plaintiff  under  the  civil  practice  law  and  rules,  shall also be available to the office in all  actions under this section.    (b) On a motion for a provisional remedy, the moving party shall state  whether any other provisional remedy has previously been sought  in  the  same action against the same defendant. The court may require the moving  party  to  elect  between  those remedies to which it would otherwise be  entitled.    7. (a) (i) Whenever it appears that a person or entity  has  knowingly  and willfully failed to give notice in violation of paragraph (a) or (b)of  subdivision two of this section, other than the state, a subdivision  of the state, or a person who is a superintendent, sheriff or  municipal  official required to give notice pursuant to this section or section one  hundred  sixteen  or  section  five hundred-c of the correction law, the  office shall be authorized to serve a notice of hearing upon the  person  or  entity  by  personal service or by registered or certified mail. The  notice shall contain the time, place and  purpose  of  the  hearing.  In  addition,  the  notice shall be accompanied by a petition alleging facts  of an evidentiary character that support or tend  to  support  that  the  person  or entity, who shall be named therein as a respondent, knowingly  and willfully failed to give notice in violation of paragraph (a) or (b)  of subdivision two of this section. Service of the notice  and  petition  shall take place at least fifteen days prior to the date of the hearing.    (ii)  The director or any individual designated by the director, shall  preside over the hearing, shall administer oaths,  may  issue  subpoenas  and  shall not be bound by the rules of evidence or civil procedure, but  his or her determination shall  be  based  on  a  preponderance  of  the  evidence.  At  the  hearing, the burden of proof shall be on the office.  The office shall produce witnesses and present evidence  in  support  of  the  alleged violation, which may include relevant hearsay evidence. The  respondent, who may appear personally at the  hearing,  shall  have  the  right  of  counsel  and may cross-examine witnesses and produce evidence  and witnesses in his or her behalf, which may include  relevant  hearsay  evidence.  The  issue  of  whether  the  person  who received an alleged  payment or obligation to pay committed the underlying crime shall not be  re-litigated at the hearing. Where the alleged violation is the  failure  to  give  notice  of a payment amount involving two or more payments the  combined value or aggregate value of which exceeds ten thousand dollars,  no violation shall be found unless it is shown that such  payments  were  intentionally  structured  to  conceal  their  character  as  funds of a  convicted person, as defined in this section.    (iii) At the conclusion of the hearing, if the director or  designated  individual is not satisfied that there is a preponderance of evidence in  support  of  a  violation,  the  director or designated individual shall  dismiss the petition.  If  the  director  or  designated  individual  is  satisfied  that  there  is  a  preponderance  of  the  evidence that the  respondent committed one or more violations, the director or  designated  individual  shall  so  find.  Upon  such  a  finding,  the  director  or  designated individual shall prepare a  written  statement,  to  be  made  available  to  the  respondent  and respondent's counsel, indicating the  evidence relied on and the reasons for finding the violation.    (iv)  The  director  shall  adopt,  promulgate,   amend   and   repeal  administrative  rules  and  regulations  governing  the procedures to be  followed with respect to hearings, including rules and  regulations  for  the administrative appeal of a decision made pursuant to this paragraph,  provided  such  rules and regulations are consistent with the provisions  of this subdivision.    (b)(i) Whenever  it  is  found  pursuant  to  paragraph  (a)  of  this  subdivision  that  a  respondent  knowingly and willfully failed to give  notice in violation of paragraph (a) or (b) of subdivision two  of  this  section,  the  office  shall impose an assessment of up to the amount of  the payment or obligation to pay and  a  civil  penalty  of  up  to  one  thousand  dollars  or  ten  percent of the payment or obligation to pay,  whichever is greater. If a respondent fails to pay  the  assessment  and  civil  penalty  imposed  pursuant  to this paragraph, the assessment and  civil penalty may be recovered from the respondent by an action  brought  by the attorney general, upon the request of the office, in any court of  competent  jurisdiction.  The  office shall deposit the assessment in anescrow account pending the expiration  of  the  three  year  statute  of  limitations  authorized by subdivision three of this section to preserve  such funds to satisfy a civil judgment in favor of a  person  who  is  a  victim of a crime committed by the convicted person to whom such failure  to  give  notice  relates. The office shall pay the civil penalty to the  state comptroller who shall deposit the  money  in  the  state  treasury  pursuant  to  section one hundred twenty-one of the state finance law to  the credit of the criminal justice improvement  account  established  by  section ninety-seven-bb of the state finance law.    (ii)  The  office shall then notify any crime victim or crime victims,  who may have a claim against the convicted person, of the  existence  of  such moneys. Such notice shall instruct such person or persons that they  may  have  a  right  to  commence  a  civil action against the convicted  person, as well as any other information deemed necessary by the office.    (iii) Upon a crime victim's presentation to  the  office  of  a  civil  judgment for damages incurred as a result of the crime, the office shall  satisfy  up to one hundred percent of that judgment, including costs and  disbursements as taxed by the clerk of the court, with the escrowed fund  obtained pursuant to this paragraph, but in no event shall the amount of  all judgments, costs and  disbursements  satisfied  from  such  escrowed  funds  exceed  the  amount in escrow. If more than one such crime victim  indicates to the office that they intend to commence or have commenced a  civil action against  the  convicted  person,  the  office  shall  delay  satisfying any judgment, costs and disbursements until the claims of all  such  crime  victims  are  reduced  to judgment. If the aggregate of all  judgments,  costs  and  disbursement  obtained  exceeds  the  amount  of  escrowed funds, the amount used to partially satisfy each judgment shall  be reduced to a pro rata share.    (iv)  After expiration of the three year statute of limitations period  established in subdivision three  of  this  section,  the  office  shall  review  all judgments that have been satisfied from such escrowed funds.  In the event no claim was  filed  or  judgment  obtained  prior  to  the  expiration  of  the  three year statute of limitations, the office shall  return the escrowed amount to the respondent. In the event  a  claim  or  claims are pending at the expiration of the statute of limitations, such  funds  shall  remain  escrowed until the final determination of all such  claims to allow the office to satisfy any judgment which may be obtained  by the crime victim. Upon the final determination of all such claims and  the satisfaction of up to one hundred percent  of  such  claims  by  the  office,  the  office  shall  be authorized to impose an additional civil  penalty of up to one thousand dollars or ten percent of the  payment  or  obligation  to  pay,  whichever  is  greater. Prior to imposing any such  penalty, the office shall serve a notice upon the respondent by personal  service or by registered or certified mail of the intent of  the  office  to  impose  such penalty thirty days after the date of the notice and of  the  opportunity  to  submit  documentation  concerning   the   office's  determination.  After  imposing  and deducting any such additional civil  penalty, the office shall distribute such remaining escrowed  funds,  if  any,  as  follows:  fifty  percent  to  the state comptroller, who shall  deposit the money in the state treasury pursuant to section one  hundred  twenty-one  of  the  state  finance  law  to  the credit of the criminal  justice improvement account established by  section  ninety-seven-bb  of  the state finance law; and fifty percent to the respondent.    (v)  Notwithstanding  any  provision  of  law, an alleged failure by a  convicted person to give notice under this section  may  not  result  in  proceedings  for  an  alleged  violation of the conditions of probation,  parole, conditional release,  post  release  supervision  or  supervised  release  unless:  one or more claims were made by a crime victim againstthe convicted person pursuant to this section, and the office imposes an  assessment and/or penalty upon the convicted  person  pursuant  to  this  section,  and  the convicted person fails to pay the total amount of the  assessment  and/or  penalty  within sixty days of the imposition of such  assessment and/or penalty.    (vi) Records maintained by the office and proceedings  by  the  office  based  thereon  regarding  a  claim  submitted by a victim or a claimant  shall be deemed confidential, subject to the exceptions that  appear  in  subdivision one of section six hundred thirty-three of this article.