N.Y. Retirement & Social Security Law § 157: Pension forfeiture

§ 157. Pension forfeiture. 1. Notwithstanding any other law to the

contrary, it shall be a term and condition of membership for every

public official that such public official's rights to a pension in a

retirement system that accrue in such retirement system after his or her

date of initial membership in the retirement system shall be subject to

the provisions of this article.

2. In the case of a public official who stands convicted, by plea of

nolo contendere or plea of guilty to, or by conviction after trial, of

any crime related to public office, and has been sentenced, an action

may be commenced in supreme court of the county in which such public

official was convicted of such felony crime, by the district attorney

having jurisdiction over such crime, or by the attorney general if the

attorney general brought the criminal charge which resulted in such

conviction, for an order to reduce or revoke the pension to which such

public official is otherwise entitled for service as a public official.

Such complaint shall specify with particularity which category of felony

pursuant to subdivision one of section one hundred fifty-six of this

article the defendant has committed, and all other facts that are

alleged to qualify such crime as a felony crime related to public office

subject to pension reduction or revocation pursuant to this article, and

the amount of pension reduction or revocation requested. Such action

shall be commenced within six months after such sentencing.

3. Before commencing an action described in subdivision two of this

section, the district attorney or the attorney general, as the case may

be, shall serve written notice on the chief administrator of the

defendant's retirement system stating that he or she has reason to

believe that the person convicted committed the crime related to public

office in the performance of or failure to perform the public official's

duties and responsibilities. Such notice shall specify with

particularity which category of felony pursuant to subdivision one of

section one hundred fifty-six of this article the defendant has

committed. Within twenty days after receipt of such notice, the chief

administrator of the defendant's retirement system shall submit a notice

of applicability to the district attorney or the attorney general as the

case may be. The notice of applicability shall contain a statement

specifying whether the person convicted is or has been a member or

retired member of a retirement system and shall describe the portion of

such rights and benefits to which such person is or will be entitled to

solely from service as such a public official.

4. No forfeiture action may be commenced by the district attorney or

the attorney general until such district attorney or the attorney

general, as the case may be, has received and served on the defendant

the notice of applicability as set forth in subdivision three of this

section.

5. The district attorney or the attorney general, or any interested

party, may seek, or the court on its own motion may order, that some or

all of the pension that would otherwise be reduced or revoked pursuant

to this article be paid for the benefit of any dependent persons, as may

be in the interests of justice.

6. The defendant shall have the right to a hearing.

7. The burden of proof shall be upon the district attorney or the

attorney general, as the case may be, to prove by clear and convincing

evidence the facts necessary to establish a claim of pension forfeiture.

The district attorney or the attorney general as the case may be must,

at the time of the hearing, prove by clear and convincing evidence that

the defendant knowingly and intentionally committed the crime related to

public office.

8. In determining whether the pension shall be reduced or revoked, the

supreme court shall consider and make findings of fact and conclusions

of law that include, but shall not be limited to, a consideration of the

following factors:

(a) Whether the defendant stands convicted of such a felony of a crime

related to public office, and the specific paragraph or paragraphs of

subdivision one of section one hundred fifty-six of this article that

have been proven or not proven;

(b) The severity of the crime related to public office of which the

defendant stands convicted;

(c) The amount of monetary loss suffered by such state or municipality

as a result of such crime related to public office;

(d) The degree of public trust reposed in the public official by

virtue of the person's position as a public official;

(e) If the crime related to public office was part of a fraudulent

scheme against the state or a municipality, the role of the public

official in such fraudulent scheme against such state or a municipality;

(f) The defendant's criminal history, if any;

(g) The impact of forfeiture, in whole or in part, on defendant's

dependents, present or former spouses, or domestic partners;

(h) The proportionality of forfeiture of all or part of the pension to

the crime committed;

(i) The years of service in public office by the defendant where no

criminal activity has been found by a court; and

(j) Any such other factors as, in the judgment of the supreme court,

justice may require.

9. At any time during the pendency of a forfeiture action, the court

may dismiss the action if it finds that such relief is warranted by the

existence of some compelling factor, consideration or circumstance or

other information or evidence which demonstrates that forfeiture would

not serve the ends of justice. The court may order that some or all of

the reduced or revoked pension be paid to satisfy the terms of any

existing order for the payment of maintenance, child support or

restitution or for the benefit of any dependent persons, as may be in

the interests of justice, after taking into consideration the financial

needs and resources available for support of such persons.

10. (a) Upon a finding by the court by clear and convincing evidence

that the defendant knowingly and intentionally committed a crime related

to public office, the court may issue an order to the appropriate

retirement system to reduce or revoke the defendant's pension to which

he or she is otherwise entitled as such a public official. All orders

and findings made by the court pursuant to this section shall be served

by the attorney general or the district attorney, as the case may be

upon the chief administrator of the defendant's retirement system and

the defendant.

(b) If the court issues an order pursuant to paragraph (a) of this

subdivision, the court shall order payment of a portion of such pension

benefit to: (1) the innocent spouse if so requested by such spouse

payable at the time the public official would have been eligible for

retirement if such spouse has not otherwise waived, in writing, his or

her right to such benefit; and (2) innocent minor children and other

dependents pursuant to law of the public official in an amount that the

court finds just and proper consistent with the pension benefits to

which the public official would be entitled and the portion of those

benefits which would be used for the support of such minor children or

dependents pursuant to law. Such payment to the innocent spouse shall be

computed pursuant to paragraph (c) of this subdivision, and payments

pursuant to subparagraphs one and two of this paragraph shall be

adjusted to reflect interest accrued between the time of such conviction

and the time of such payment.

(c) When determining the amount of benefits which the defendant's

innocent spouse is entitled to receive, the factors contained in

paragraph d of subdivision five of part B of section two hundred

thirty-six of the domestic relations law shall be considered by the

court. However, when determining such apportionment, the court shall not

annul or modify any prior court order regarding such benefits.

11. The court shall issue a written decision including findings of

fact and conclusions of law that are the basis for any order issued

pursuant to this section.

12. Upon a final determination that reverses or vacates the conviction

or convictions of a crime related to public office, or reduces such

crime to a violation, misdemeanor or other criminal act that is not a

crime related to public office, the public official, or if he or she

shall be deceased, his or her estate, shall have such pension

retroactively restored upon application to the court with jurisdiction

over the forfeiture action. Such court, upon finding that such a final

determination has occurred, shall issue an order retroactively restoring

such pension, together with such other relief deemed appropriate.

13. A final judgment entered pursuant to this article may be appealed

pursuant to subdivision (a) of section fifty-seven hundred one and

section fifty-six hundred two of the civil practice law and rules.

14. Except as otherwise provided by this article, the civil practice

law and rules shall govern the procedure in all actions commenced

pursuant to this article, except where the action is specifically

regulated by any inconsistent provisions herein.