2012 New York Consolidated Laws
EXC - Executive
Article 22 - (620 - 635) OFFICE OF VICTIM SERVICES
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 corrections
  and community supervision 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
  department   of   corrections  and  community  supervision  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  department  of  corrections  and
  community  supervision, 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,  the
  department  of  corrections  and  community  supervision, 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

  the state board of parole or the department of corrections and community
  supervision  pursuant  to  applicable  law,  or  granted  a discharge or
  termination from probation pursuant  to  applicable  law  or  granted  a
  discharge 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
  department   of   corrections  and  community  supervision  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  department  of  corrections  and
  community  supervision, 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,  the
  department  of  corrections  and  community  supervision, 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  corrections  and  community supervision 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  or
  enforcement  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 an
  escrow 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 against
  the 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.