NY Exec L § 631 (2021)
2021 New York Laws EXC - Executive Article 22 - Office of Victim Services 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.  Notwithstanding  the foregoing  provisions of this subdivision, 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 sections 230.34 and 230.34-a 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 or family 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;  loss of  savings  not  to exceed thirty thousand dollars; burial expenses not exceeding six thousand dollars of a victim who died on or after November first, nineteen ninety-six 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;  reasonable employment-related transportation 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. An award for employment-related transportation expenses shall be limited to  the  time  period  necessary  due  to the personal physical injuries sustained as a direct result of the crime upon which the claim is based, as  determined  by  the  medical  information   collected   during   the investigation of the claim.   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.   3-a. Any award made for loss of savings shall, unless reduced pursuant to other provisions of this article, be in an amount equal to the actual loss sustained.   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, domestic partner, parents, brothers, sisters or children of such victim, and/or the reasonable burial expenses incurred by the claimant.  (f)   Notwithstanding   the   provisions  of  paragraph  (a)  of  this subdivision,  the  office  shall  disregard   for   this   purpose   the responsibility of the victim for his or her own loss of savings.  (g)   Notwithstanding   the   provisions  of  paragraph  (a)  of  this subdivision, if the crime upon which the claim is based resulted in  the death  of the victim, the office shall determine whether, because of his or her conduct, the victim of such crime contributed to  the  infliction of  his or her injury, and the office may reduce the amount of the award by no more than fifty percent, in accordance with such determination.   6. (a) Claims may be approved only if the office finds that unless the claimant's award is approved he or she will suffer financial difficulty. However, no finding of financial difficulty is required for a claim  for an  emergency  award  or  an  award  less  than ten thousand dollars. In determining 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 been physically 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. For purposes of this subdivision, "necessary  court  appearances"  shall include,  but  not  be  limited  to,  any part of trial from arraignment through sentencing, pre and post trial hearings and grand jury hearings.   8-a.  Notwithstanding  the  provisions  of  subdivision  one  of  this section,  a  vulnerable  elderly  person or an incompetent or physically disabled person, as defined in section 260.31 of the penal law, who  has not  been  physically  injured  as  a direct result of a crime, shall be eligible for an award that includes loss of savings.   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.  In  the  case of medically necessary life-sustaining equipment which was lost or damaged as the direct result of a crime, the award shall be limited to the  amount  of  ten  thousand 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. For purposes of this subdivision, "necessary court appearances" shall  include  but  not  be  limited  to  any  part  of  a proceeding  from  arraignment  through  sentencing,  pre  and post trial hearings and grand jury hearings.    11. 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 one  of  section 120.14  of  the  penal  law;  menacing in the third degree as defined in section  120.15  of  the  penal  law; 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; kidnapping in the first degree as defined in  section  135.25  of  the  penal  law; criminal mischief in the fourth degree as defined in subdivision four of section  145.00 of the penal law; robbery in the third degree as defined in section 160.05 of the penal law; robbery  in  the  second  degree  as defined  in  subdivision  one,  paragraph  (b)  of  subdivision  two  or subdivision three of section 160.10 of the penal  law;  robbery  in  the first  degree  as defined in subdivisions two, three and four of section 160.15 of the penal law; unlawful surveillance in the second  degree  as defined  in section 250.45 of the penal law; or unlawful surveillance in the first degree as defined in section 250.50 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  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, criminal obstruction of breathing or blood circulation as  defined  in  section  121.11  of  the  penal  law, harassment  in  the  second  degree  as defined in 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 three or  five  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  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,   or  dissemination  of  an  unlawful surveillance image in the second or first degree as defined in  sections 250.55  and  250.60, respectively, or a hate crime as defined in section 485.05 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  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,  the cost  of  residing  at  or  utilizing  services provided by shelters for battered spouses and children as provided in subdivision one of  section six hundred twenty-six of this article, transportation expenses incurred for  necessary  court  appearances 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, the unreimbursed cost of crime scene cleanup and securing a crime scene,  reasonable  relocation  expenses,  and  for occupational   or  job  training.  For  purposes  of  this  subdivision, "necessary court appearances" shall include, but not be limited to,  any part  of  trial  from arraignment through sentencing, pre and post trial hearings and grand jury hearings.    13.  (a)  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 provider furnishes 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 any necessary related laboratory tests or pharmaceuticals; including but  not limited to HIV post-exposure prophylaxis provided by a hospital emergency room at the time of the forensic rape examination pursuant  to paragraph  (c) of subdivision one of section twenty-eight hundred five-i of the public health law. For a person eighteen years of age  or  older, 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.  (b) The rate  for  reimbursement  shall  be  the  amount  of  itemized charges,  to  be  reimbursed  at  the  Medicaid  rate  and  which  shall cumulatively not exceed (1) eight hundred  dollars  for  an  exam  of  a sexual  assault survivor where no sexual offense evidence collection kit is used; (2) one thousand two hundred dollars for an exam  of  a  sexual assault survivor where a sexual offense evidence collection kit is used; (3)  one  thousand  five hundred dollars for an exam of a sexual assault survivor who is eighteen years of age or older, with or without the  use of a sexual offense evidence collection kit, and with the provision of a necessary  HIV post-exposure prophylaxis seven day starter pack; and (4) two thousand five hundred dollars  for  an  exam  of  a  sexual  assault survivor who is less than eighteen years of age, with or without the use of  a  sexual offense evidence collection kit, and with the provision of the  full  regimen  of  necessary  HIV  post-exposure  prophylaxis.  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; provided, however, in the event  the  sexual assault survivor assigns any private health insurance benefit, such coverage shall not be subject  to  annual  deductibles  or coinsurance  or balance billing by the hospital, sexual assault examiner program or licensed health care provider.  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. Such sexual  assault  survivor shall  also be advised that the direct reimbursement program established by this subdivision does not automatically make them  eligible  for  any other compensation benefits available from the office including, but not limited   to,  reimbursement  for  mental  health  counseling  expenses, relocation expenses, and loss of earnings, and  that  such  compensation benefits  may  only  be made available to them should the sexual assault survivor or other person  eligible  to  file  pursuant  to  section  six hundred  twenty-four  of  this  article, file a compensation application with the office. 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   December thirty-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  any  violation  listed  in  subdivision  twelve  of  this section, or has witnessed a crime or any violation listed in subdivision twelve  of  this  section  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 or any violation listed in subdivision twelve of this section, 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 or any violation listed in  subdivision  twelve  of  this  section 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  or any violation listed in subdivision twelve of this section occurred.    18. Notwithstanding any inconsistent provision  of  this  article  and subject  to  any  applicable maximum award limitations contained in this section, where a victim has died as a direct result of  the  crime  upon which  the  claim  is based and the crime occurred in the residence of a person  eligible pursuant to paragraph (k) of subdivision one of section six hundred twenty-four of this article, the office  may  make  no  more than one award for crime scene clean-up related to such residence.