N.Y. Penal Law § 60.27: Restitution and reparation

§ 60.27 Restitution and reparation.

1. In addition to any of the dispositions authorized by this article,

the court shall consider restitution or reparation to the victim of the

crime and may require restitution or reparation as part of the sentence

imposed upon a person convicted of an offense, and after providing the

district attorney with an opportunity to be heard in accordance with the

provisions of this subdivision, require the defendant to make

restitution of the fruits of his or her offense or reparation for the

actual out-of-pocket loss caused thereby and, in the case of a violation

of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any

costs or losses incurred due to any adverse action taken against the

victim. The district attorney shall where appropriate, advise the court

at or before the time of sentencing that the victim seeks restitution or

reparation, the extent of injury or economic loss or damage of the

victim, and the amount of restitution or reparation sought by the victim

in accordance with his or her responsibilities under subdivision two of

section 390.50 of the criminal procedure law and article twenty-three of

the executive law. The court shall hear and consider the information

presented by the district attorney in this regard. In that event, or

when the victim impact statement reports that the victim seeks

restitution or reparation, the court shall require, unless the interests

of justice dictate otherwise, in addition to any of the dispositions

authorized by this article that the defendant make restitution of the

fruits of the offense and reparation for the actual out-of-pocket loss

and, in the case of a violation of section 190.78, 190.79, 190.80,

190.82 or 190.83 of this chapter, any costs or losses incurred due to

any adverse action, caused thereby to the victim. In the event that

restitution or reparation are not ordered, the court shall clearly state

its reasons on the record. Adverse action as used in this subdivision

shall mean and include actual loss incurred by the victim, including an

amount equal to the value of the time reasonably spent by the victim

attempting to remediate the harm incurred by the victim from the

offense, and the consequential financial losses from such action.

2. Whenever the court requires restitution or reparation to be made,

the court must make a finding as to the dollar amount of the fruits of

the offense and the actual out-of-pocket loss to the victim caused by

the offense. In making this finding, the court must consider any victim

impact statement provided to the court. If the record does not contain

sufficient evidence to support such finding or upon request by the

defendant, the court must conduct a hearing upon the issue in accordance

with the procedure set forth in section 400.30 of the criminal procedure

law.

3. The provisions of sections 420.10, 420.20 and 420.30 of the

criminal procedure law shall apply in the collection and remission of

restitution and reparation.

4. For purposes of the imposition, determination and collection of

restitution or reparation, the following definitions shall apply:

(a) the term "offense" shall include the offense for which a defendant

was convicted, as well as any other offense that is part of the same

criminal transaction or that is contained in any other accusatory

instrument disposed of by any plea of guilty by the defendant to an

offense.

(b) the term "victim" shall include the victim of the offense, the

representative of a crime victim as defined in subdivision six of

section six hundred twenty-one of the executive law, an individual whose

identity was assumed or whose personal identifying information was used

in violation of section 190.78, 190.79 or 190.80 of this chapter, or any

person who has suffered a financial loss as a direct result of the acts

of a defendant in violation of section 190.78, 190.79, 190.80, 190.82 or

190.83 of this chapter, a good samaritan as defined in section six

hundred twenty-one of the executive law and the office of victim

services or other governmental agency that has received an application

for or has provided financial assistance or compensation to the victim.

A victim shall also mean any owner or lawful producer of a master

recording, or a trade association that represents such owner or lawful

producer, that has suffered injury as a result of an offense as defined

in article two hundred seventy-five of this chapter.

5. (a) Except upon consent of the defendant or as provided in

paragraph (b) of this subdivision, or as a condition of probation or

conditional discharge as provided in paragraph (g) of subdivision two of

section 65.10 of this chapter, the amount of restitution or reparation

required by the court shall not exceed fifteen thousand dollars in the

case of a conviction for a felony, or ten thousand dollars in the case

of a conviction for any offense other than a felony. Notwithstanding the

provisions of this subdivision, if an officer of a school district is

convicted of violating any section of article one hundred fifty-five of

this chapter where the victim of such crime is such officer's school

district, the court may require an amount of restitution up to the full

amount of the fruits of the offense or reparation up to the full amount

of the actual out-of-pocket loss suffered by the victim, provided

further that in such case the provisions of paragraph (b) of this

subdivision shall not apply.

(b) The court in its discretion may impose restitution or reparation

in excess of the amounts specified in paragraph (a) of this subdivision,

provided however that the amount in excess must be limited to the return

of the victim's property, including money, or the equivalent value

thereof; and reimbursement for medical expenses actually incurred by the

victim prior to sentencing as a result of the offense committed by the

defendant.

(c) If a corporation is found guilty of an offense involving the death

or serious physical injury of an employee in violation of subparagraph

(iv) of paragraph (c) of subdivision two of section 20.20 of this

chapter, the court may order restitution or reparation in excess of the

amounts specified in paragraphs (a) and (b) of this subdivision.

6. Any payment made as restitution or reparation pursuant to this

section shall not limit, preclude or impair any liability for damages in

any civil action or proceeding for an amount in excess of such payment.

7. In the event that the court requires restitution or reparation to

be made to a person and that person dies prior to the completion of said

restitution or reparation, the remaining payments shall be made to the

estate of the deceased.

8. The court shall in all cases where restitution or reparation is

imposed direct as part of the disposition that the defendant pay a

designated surcharge of five percent of the entire amount of a

restitution or reparation payment to the official or organization

designated pursuant to subdivision eight of section 420.10 of the

criminal procedure law. The designated surcharge shall not exceed five

percent of the amount actually collected. Upon the filing of an

affidavit of the official or organization designated pursuant to

subdivision eight of section 420.10 of the criminal procedure law

demonstrating that the actual cost of the collection and administration

of restitution or reparation in a particular case exceeds five percent

of the entire amount of the payment or the amount actually collected, as

the case may be, the court shall direct that the defendant pay an

additional surcharge of not more than five percent of the entire amount

of a restitution or reparation payment to such official or organization,

or the actual cost of collection or administration, whichever is less

unless, upon application of the defendant, the court determines that

imposition of such additional surcharge would cause undue hardship to

the defendant, or any other person who is financially supported by the

defendant, or would otherwise not be in the interest of justice. Such

additional surcharge, when added to the initial five percent surcharge,

shall not exceed ten percent of the amount actually collected.

9. If the offense of which a person is convicted is a class A, class

B, class C, or class D felony involving the sale of a controlled

substance, as defined in article two hundred twenty of this chapter, and

no other victim who is a person is seeking restitution in the case, the

term "victim" as used in this section, in addition to its ordinary

meaning, shall mean any law enforcement agency of the state of New York

or of any subdivision thereof which has expended funds in the purchase

of any controlled substance from such person or his agent as part of the

investigation leading to such conviction. Any restitution which may be

required to be made to a law enforcement agency pursuant to this section

shall be limited to the amount of funds expended in the actual purchase

of such controlled substance by such law enforcement agency, less the

amount of any funds which have been or will be recovered from any other

source, and shall not include a designated surcharge pursuant to

subdivision eight of this section. Any law enforcement agency seeking

restitution pursuant to this section shall file with the court and the

district attorney an affidavit stating that funds expended in the actual

purchase of a controlled substance for which restitution is being sought

have not been and will not be recovered from any other source or in any

other civil or criminal proceeding. Any law enforcement agency receiving

restitution pursuant to this section shall promptly transmit to the

commissioner of the division of criminal justice services a report

stating the dollar amount of the restitution received.

10. If the offense of which a person is convicted is defined in

section 150.10, 150.15 or 150.20 of this chapter, and no other victim

who is a person is seeking restitution in the case, the term "victim" as

used in this section, in addition to its ordinary meaning, shall mean

any municipality or volunteer fire company which has expended funds or

will expend funds for the purpose of restoration, rehabilitation or

clean-up of the site of the arson. Any restitution which may be required

to be made to a municipality or volunteer fire company pursuant to this

section shall be limited to the amount of funds reasonably expended or

to be expended for the purpose of restoration, rehabilitation or

clean-up of the site of the arson, less the amount of any funds which

have been or will be recovered from any other source, and shall not

include a designated surcharge pursuant to subdivision eight of this

section. Any municipality or volunteer fire company seeking restitution

pursuant to this section shall file with the court, district attorney

and defense counsel an affidavit stating that the funds reasonably

expended or to be expended for which restitution is being sought have

not been and will not be recovered from any other source or in any other

civil or criminal proceeding. For the purposes of this subdivision,

"volunteer fire company" means a fire company as defined in paragraph a

of subdivision two of section one hundred of the general municipal law.

11. Notwithstanding any other provision of this section to the

contrary, when a person is convicted of harming an animal trained to aid

a person with a disability in the second degree as defined in section

195.11 of this chapter, or harming an animal trained to aid a person

with a disability in the first degree as defined in section 195.12 of

this chapter, the court, in addition to any other sentence, shall order

the payment of restitution to the person with a disability who was aided

by such animal.

12. If the offense of which a person is convicted is defined in

section 155.25, 155.30, 155.35, 155.40 or 155.42 of this chapter, and

the property taken is timber, the court may upon conviction, in addition

to any other sentence, direct the defendant to pay the rightful owner of

such timber an amount equal to treble the stumpage value of the timber

stolen as defined in section 71-0703 of the environmental conservation

law and for any permanent and substantial damage caused to the land or

the improvements thereon as a result of such violation. Such reparations

shall be of such kind, nature and extent as will reasonably restore the

lands affected by the violation to their condition immediately before

the violation and may be made by physical restoration of such lands

and/or by the assessment of monetary payment to make such restoration.

13. If the offense of which a person is convicted is defined in

section 240.50, subdivision one or two of section 240.55, section

240.60, section 240.61, section 240.62 or section 240.63 of this

chapter, and no other victim who is a person is seeking restitution in

the case, the term "victim" as used in this subdivision, in addition to

the ordinary meaning, shall mean any school, municipality, fire

district, fire company, fire corporation, ambulance association,

ambulance corporation, or other legal or public entity engaged in

providing emergency services which has expended funds for the purpose of

responding to a false report of an incident or false bomb as defined in

section 240.50, subdivision one or two of section 240.55, section

240.60, section 240.61, section 240.62, or section 240.63 of this

chapter. Any restitution which may be required to be made to a victim

pursuant to this subdivision shall be limited to the amount of funds

reasonably expended for the purpose of responding to such false report

of incident or false bomb, less the amount of any funds which have been

or will be recovered from any other source and shall not include a

designated surcharge pursuant to subdivision eight of this section. Any

victim seeking restitution pursuant to this subdivision shall file with

the court, district attorney and defense counsel an affidavit stating

that the funds reasonably expended for which restitution is being sought

have not been and will not be recovered from any other source or in any

other civil or criminal proceeding, except as provided for by section

3-112 of the general obligations law.

14. Where a transfer of probation has occurred pursuant to section

410.80 of the criminal procedure law and the probationer is subject to a

restitution condition, the department of probation in the county in

which the order of restitution was imposed shall notify the appropriate

district attorney. Upon notification by the department of probation,

such district attorney shall file a certified copy of the judgment with

the clerk of the county in the receiving jurisdiction for purposes of

establishing a first lien and to permit institution of civil proceedings

pursuant to the provisions of subdivision six of section 420.10 of the

criminal procedure law.