NY Exec L § 632-A (2021)
2021 New York Laws EXC - Executive Article 22 - 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  incarcerated  individual  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 incarcerated individual or prisoner and deposits in  an  incarcerated  individual  account  to  the credit  of  the  incarcerated individual 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 incarcerated individual 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 incarcerated individual 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 incarcerated individual account to the credit of  the incarcerated  individual  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 incarcerated individual 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 incarcerated individual  account  to  the  credit  of  the  incarcerated individual 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.