NY Ret & SS L § 157 (2021)
2021 New York Laws RSS - Retirement and Social Security Article 3-B - Pension Forfeiture for Public Officials 157 - Pension Forfeiture.

§  157.  Pension forfeiture.   1. Notwithstanding any other law to the contrary, it shall be a term  and  condition  of  membership  for  every public  official  that  such  public official's rights to a pension in a retirement system that accrue in such retirement system after his or her date of initial membership in the retirement system shall be subject  to the provisions of this article.   2.  In  the case of a public official who stands convicted, by plea of nolo contendere or plea of guilty to, or by conviction after  trial,  of any  crime  related  to public office, and has been sentenced, an action may be commenced in supreme court of the county  in  which  such  public official  was  convicted  of such felony crime, by the district attorney having jurisdiction over such crime, or by the attorney general  if  the attorney  general  brought  the  criminal  charge which resulted in such conviction, for an order to reduce or revoke the pension to  which  such public  official is otherwise entitled for service as a public official. Such complaint shall specify with particularity which category of felony pursuant to subdivision one of section one  hundred  fifty-six  of  this article  the  defendant  has  committed,  and  all  other facts that are alleged to qualify such crime as a felony crime related to public office subject to pension reduction or revocation pursuant to this article, and the amount of pension reduction or  revocation  requested.  Such  action shall be commenced within six months after such sentencing.   3.  Before  commencing  an action described in subdivision two of this section, the district attorney or the attorney general, as the case  may be,  shall  serve  written  notice  on  the  chief  administrator of the defendant's retirement system stating that  he  or  she  has  reason  to believe  that the person convicted committed the crime related to public office in the performance of or failure to perform the public official's duties  and   responsibilities.   Such   notice   shall   specify   with particularity  which  category  of felony pursuant to subdivision one of section  one  hundred  fifty-six  of  this  article  the  defendant  has committed.  Within  twenty  days after receipt of such notice, the chief administrator of the defendant's retirement system shall submit a notice of applicability to the district attorney or the attorney general as the case may be. The notice  of  applicability  shall  contain  a  statement specifying  whether  the  person  convicted  is  or has been a member or retired member of a retirement system and shall describe the portion  of such  rights and benefits to which such person is or will be entitled to solely from service as such a public official.   4. No forfeiture action may be commenced by the district  attorney  or the  attorney  general  until  such  district  attorney  or the attorney general, as the case may be, has received and served  on  the  defendant the  notice  of  applicability as set forth in subdivision three of this section.   5. The district attorney or the attorney general,  or  any  interested party,  may seek, or the court on its own motion may order, that some or all of the pension that would otherwise be reduced or  revoked  pursuant to this article be paid for the benefit of any dependent persons, as may be in the interests of justice.   6. The defendant shall have the right to a hearing.   7.  The  burden  of  proof  shall be upon the district attorney or the attorney general, as the case may be, to prove by clear  and  convincing evidence the facts necessary to establish a claim of pension forfeiture. The  district  attorney or the attorney general as the case may be must, at the time of the hearing, prove by clear and convincing evidence  that the defendant knowingly and intentionally committed the crime related to public office.    8. In determining whether the pension shall be reduced or revoked, the supreme  court  shall consider and make findings of fact and conclusions of law that include, but shall not be limited to, a consideration of the following factors:  (a) Whether the defendant stands convicted of such a felony of a crime related  to  public  office, and the specific paragraph or paragraphs of subdivision one of section one hundred fifty-six of  this  article  that have been proven or not proven;  (b)  The  severity  of the crime related to public office of which the defendant stands convicted;  (c) The amount of monetary loss suffered by such state or municipality as a result of such crime related to public office;  (d) The degree of public trust  reposed  in  the  public  official  by virtue of the person's position as a public official;  (e)  If  the  crime  related to public office was part of a fraudulent scheme against the state or a  municipality,  the  role  of  the  public official in such fraudulent scheme against such state or a municipality;  (f) The defendant's criminal history, if any;  (g)  The  impact  of  forfeiture,  in whole or in part, on defendant's dependents, present or former spouses, or domestic partners;  (h) The proportionality of forfeiture of all or part of the pension to the crime committed;  (i) The years of service in public office by the  defendant  where  no criminal activity has been found by a court; and  (j)  Any  such other factors as, in the judgment of the supreme court, justice may require.   9. At any time during the pendency of a forfeiture action,  the  court may  dismiss the action if it finds that such relief is warranted by the existence of some compelling factor, consideration  or  circumstance  or other  information  or evidence which demonstrates that forfeiture would not serve the ends of justice. The court may order that some or  all  of the  reduced  or  revoked  pension  be  paid to satisfy the terms of any existing  order  for  the  payment  of  maintenance,  child  support  or restitution  or  for  the benefit of any dependent persons, as may be in the interests of justice, after taking into consideration the  financial needs and resources available for support of such persons.   10.  (a)  Upon a finding by the court by clear and convincing evidence that the defendant knowingly and intentionally committed a crime related to public office, the court  may  issue  an  order  to  the  appropriate retirement  system  to reduce or revoke the defendant's pension to which he or she is otherwise entitled as such a public  official.  All  orders and  findings made by the court pursuant to this section shall be served by the attorney general or the district attorney, as  the  case  may  be upon  the  chief  administrator of the defendant's retirement system and the defendant.  (b) If the court issues an order pursuant to  paragraph  (a)  of  this subdivision,  the court shall order payment of a portion of such pension benefit to: (1) the innocent spouse  if  so  requested  by  such  spouse payable  at  the  time  the public official would have been eligible for retirement if such spouse has not otherwise waived, in writing,  his  or her  right  to  such  benefit; and (2) innocent minor children and other dependents pursuant to law of the public official in an amount that  the court  finds  just  and  proper  consistent with the pension benefits to which the public official would be entitled and  the  portion  of  those benefits  which  would be used for the support of such minor children or dependents pursuant to law. Such payment to the innocent spouse shall be computed pursuant to paragraph (c) of  this  subdivision,  and  payments pursuant  to  subparagraphs  one  and  two  of  this  paragraph shall be  adjusted to reflect interest accrued between the time of such conviction and the time of such payment.  (c)  When  determining  the  amount  of benefits which the defendant's innocent spouse  is  entitled  to  receive,  the  factors  contained  in paragraph  d  of  subdivision  five  of  part  B  of section two hundred thirty-six of the domestic relations law  shall  be  considered  by  the court. However, when determining such apportionment, the court shall not annul or modify any prior court order regarding such benefits.   11.  The  court  shall  issue a written decision including findings of fact and conclusions of law that are the  basis  for  any  order  issued pursuant to this section.   12. Upon a final determination that reverses or vacates the conviction or  convictions  of  a  crime  related to public office, or reduces such crime to a violation, misdemeanor or other criminal act that  is  not  a crime  related  to  public  office, the public official, or if he or she shall  be  deceased,  his  or  her  estate,  shall  have  such   pension retroactively  restored  upon application to the court with jurisdiction over the forfeiture action. Such court, upon finding that such  a  final determination has occurred, shall issue an order retroactively restoring such pension, together with such other relief deemed appropriate.   13.  A final judgment entered pursuant to this article may be appealed pursuant to subdivision (a)  of  section  fifty-seven  hundred  one  and section fifty-six hundred two of the civil practice law and rules.   14.  Except  as otherwise provided by this article, the civil practice law and rules shall  govern  the  procedure  in  all  actions  commenced pursuant  to  this  article,  except  where  the  action is specifically regulated by any inconsistent provisions herein.