N.Y. Executive Law § 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.