S T A T E O F N E W Y O R K
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10353
I N A S S E M B L Y
March 19, 2010
___________
Introduced by M. of A. TEDISCO -- Multi-Sponsored by -- M. of A.
CALHOUN, FITZPATRICK, KOLB -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law, the criminal procedure law, the
correction law and the state finance law, in relation to community
safety
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 3 of section 60.27 of the penal law, as added
by chapter 290 of the laws of 1980, is amended to read as follows:
3. The provisions of sections 400.50, 420.10, 420.20 and 420.30 of the
criminal procedure law shall apply in the collection and remission of
restitution and reparation.
S 2. The penal law is amended by adding a new section 60.31 to read as
follows:
S 60.31 REIMBURSEMENT OF INCARCERATION COSTS.
1. IN ADDITION TO ANY OF THE DISPOSITIONS AUTHORIZED BY THIS ARTICLE,
THE COURT MAY, AS PART OF THE SENTENCE IMPOSED UPON A PERSON CONVICTED
OF AN OFFENSE AND SENTENCED TO A TERM OF INCARCERATION IN A CORRECTIONAL
FACILITY WITHIN THE STATE, REQUIRE THE DEFENDANT TO REIMBURSE THE STATE
FOR THE COSTS OF PROVIDING FOOD, SHELTER AND CLOTHING WHILE SO INCARCER-
ATED. SUCH REIMBURSEMENT SHALL NOT EXCEED THE PER CAPITA COSTS OF
PROVIDING FOOD AND SHELTER TO AN INMATE IN SAID FACILITY AS DETERMINED
BY THE COMMISSIONER OF CORRECTIONAL SERVICES.
2. WHENEVER THE COURT REQUIRES REIMBURSEMENT A FINDING MUST BE MADE IN
ACCORDANCE WITH SECTION 400.50 OF THE CRIMINAL PROCEDURE LAW.
3. FOR THE PURPOSES OF IMPOSITION, DETERMINATION AND REMITTANCE OF
REIMBURSEMENT, AS PROVIDED IN THIS CHAPTER, 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.
S 3. Subdivision 1 of section 390.30 of the criminal procedure law is
amended to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15883-01-0
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1. The investigation. The pre-sentence investigation consists of the
gathering of information with respect to the circumstances attending the
commission of the offense, the defendant's history of delinquency or
criminality, and the defendant's social history, employment history,
family situation, economic status, education, and personal habits.
ECONOMIC STATUS SHALL INCLUDE ALL AGGREGATE ADJUSTED GROSS INCOME AS
DEFINED BY THE TAX LAW, EXCEPT TO THE EXTENT ANY SUCH INCOME IS EXCLUDED
BY FEDERAL STATUTE, THAT HAS BEEN OR IS EXPECTED TO BE RECEIVED BY THE
DEFENDANT AND EXCEPT FOR ANY MONIES THAT THE DEFENDANT MAY EARN FOR WORK
PERFORMED WHILE HE OR SHE IS AN INMATE. IT SHALL ALSO INCLUDE ANY MONIES
FROM WHATEVER SOURCE, RECEIVED BY THE DEFENDANT BY WAY OF JUDGMENT,
SETTLEMENT, GIFT, DEVISE OR OTHERWISE. Such investigation may also
include any other matter which the agency conducting the investigation
deems relevant to the question of sentence, and must include any matter
the court directs to be included.
S 4. The criminal procedure law is amended by adding a new section
400.50 to read as follows:
S 400.50 PROCEDURE FOR DETERMINING THE COMMUNITY REIMBURSEMENT ACCOUNT
OF AN INMATE.
1. HEARING. IN ANY CASE WHERE THE COURT FINDS THAT THE SENTENCE SHALL
INCLUDE A COURT ORDER THAT PORTIONS OF THE DEFENDANT'S INCOME, AS
DEFINED AND DETERMINED IN SECTION 390.30 OF THIS CHAPTER, BE DISTRIBUTED
FOR THE PURPOSES OF RESTITUTION AND REPARATION PURSUANT TO SECTION 60.27
OF THE PENAL LAW AND REIMBURSEMENT TO THE STATE FOR FUTURE COSTS OF
FOOD, SHELTER AND CLOTHING INCURRED BY THE INCARCERATION OF SUCH DEFEND-
ANT AS DEFINED IN SECTION 60.31 OF THE PENAL LAW, THE COURT SHALL ORDER
A HEARING TO ESTABLISH THE AMOUNT OF MONEY TO BE PAID INTO AN INDIVIDUAL
ACCOUNT TO THE CREDIT OF THE DEFENDANT TO BE KNOWN AS THE COMMUNITY
REIMBURSEMENT ACCOUNT AND TO DETERMINE THE AMOUNTS THEREOF TO BE
DISTRIBUTED AS PROVIDED BY THIS SECTION. THE ORDER FOR THE HEARING MUST
BE FILED WITH THE CLERK OF THE COURT AND MUST SPECIFY A DATE FOR THE
HEARING NOT LESS THAN TEN DAYS AFTER THE FILING OF THE ORDER.
2. NOTICE OF HEARING. UPON RECEIPT OF THE ORDER, THE CLERK OF THE
COURT MUST SEND A NOTICE OF THE HEARING TO THE DEFENDANT, HIS OR HER
COUNSEL AND THE DISTRICT ATTORNEY. SUCH NOTICE MUST SPECIFY THE TIME AND
PLACE OF THE HEARING AND THE FACT THAT THE PURPOSE THEREOF IS TO DETER-
MINE THE DEFENDANT'S INCOME AND THE AMOUNTS THEREOF TO BE CREDITED TO
AND FROM THE COMMUNITY REIMBURSEMENT ACCOUNT FOR RESTITUTION AND REPARA-
TION AND REIMBURSEMENT.
3. HEARING; STATEMENT. WHEN THE DEFENDANT APPEARS FOR THE HEARING THE
COURT MUST ASK HIM OR HER WHETHER HE OR SHE WISHES TO MAKE ANY STATEMENT
WITH RESPECT TO THE PRE-SENTENCE INVESTIGATION STATING HIS OR HER
ECONOMIC AND INCOME STATUS. IF THE DEFENDANT DOES MAKE A STATEMENT, THE
COURT MAY ACCEPT SUCH STATEMENT AND BASE ITS FINDING THEREON. WHERE THE
DEFENDANT DOES NOT MAKE A STATEMENT, OR WHERE THE COURT DOES NOT ACCEPT
THE DEFENDANT'S STATEMENT, IT MAY PROCEED WITH THE HEARING.
4. BURDEN AND STANDARD OF PROOF, EVIDENCE. AT ANY HEARING HELD PURSU-
ANT TO THIS SECTION THE BURDEN OF PROOF RESTS UPON THE PEOPLE. A FINDING
AS TO THE AMOUNT OF A DEFENDANT'S INCOME MUST BE BASED UPON DOCUMENTED
EVIDENCE. ANY RELEVANT EVIDENCE, NOT LEGALLY PRIVILEGED, MAY BE RECEIVED
REGARDLESS OF ITS ADMISSIBILITY UNDER THE EXCLUSIONARY RULES OF
EVIDENCE.
5. RULING. THE COURT MAY ORDER THAT WHILE THE DEFENDANT IS INCARCERAT-
ED IN A CORRECTIONAL FACILITY WITHIN THE STATE, HIS OR HER INCOME SHALL
BE DEPOSITED IN HIS OR HER COMMUNITY REIMBURSEMENT ACCOUNT IN A BANK AS
APPROVED BY THE COMPTROLLER AND PURSUANT TO SECTION ONE HUNDRED
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SIXTEEN-A OF THE CORRECTION LAW. THE COURT MAY ORDER PERIODIC PAYMENTS
TO BE MADE IN A TIMELY AND PROPORTIONATE MANNER ACCORDING TO THE FOLLOW-
ING PRIORITIES:
(A) FOR RESTITUTION AND REPARATION ACCORDING TO SECTION 60.27 OF THE
PENAL LAW TO ANY VICTIM OF THE CRIME COMMITTED BY THE DEFENDANT; AND
(B) FOR THE REIMBURSEMENT TO THE STATE OF THE COSTS TO BE INCURRED BY
THE CORRECTIONAL FACILITY IN WHICH THE DEFENDANT IS INCARCERATED FOR
PROVIDING FOOD, SHELTER AND CLOTHING DURING SUCH PERIOD. IN NO CASE
SHALL THIS REIMBURSEMENT EXCEED THE PER CAPITA COST OF PROVIDING FOOD,
SHELTER AND CLOTHING TO AN INMATE IN SUCH CORRECTIONAL FACILITY AS
DETERMINED BY THE COMMISSIONER OF CORRECTIONAL SERVICES WHICH AMOUNTS
SHALL BE TRANSFERRED TO AND DEPOSITED INTO THE GENERAL FUND TO THE CRED-
IT OF THE COMMUNITY SAFETY FUND ESTABLISHED PURSUANT TO SECTION NINETY-
ONE-H OF THE STATE FINANCE LAW.
THE ABOVE AMOUNTS SO PROPORTIONED SHALL BE REMITTED TO THE APPROPRIATE
OFFICIAL AS DESIGNATED BY THE COURT FOR DISTRIBUTION TO THE PROPER
PERSON. IN THE EVENT THAT THERE ARE MONIES REMAINING TO THE CREDIT OF
THE DEFENDANT AFTER HIS OR HER INCARCERATION IS CONCLUDED, THEY SHALL BE
MADE PAYABLE BY THE COMPTROLLER TO THE DEFENDANT UPON HIS OR HER RELEASE
SUBJECT TO THE CERTIFICATION OF THE SUPERINTENDENT OF THE FACILITY IN
WHICH HE OR SHE WAS INCARCERATED.
6. APPEAL. THE DEFENDANT MAY APPEAL TO THE COURT FOR RECONSIDERATION
OF THE ABOVE FINDINGS RELATING TO HIS OR HER COMMUNITY REIMBURSEMENT
ACCOUNT WITHIN THIRTY DAYS OF ANY SUBSTANTIVE CHANGE IN HIS OR HER
INCOME. THE COURT SHALL RENDER A DECISION IN KEEPING WITH THE ABOVE
PROVISIONS NO LATER THAN NINETY DAYS AFTER THE FILING OF SUCH APPEAL.
S 5. Subdivision 1 of section 420.10 of the criminal procedure law, as
separately amended by chapters 233 and 506 of the laws of 1985 and para-
graph (e) as amended by chapter 618 of the laws of 1992, is amended to
read as follows:
1. Alternative methods of payment. When the court imposes a fine upon
an individual, it shall designate the official other than the district
attorney to whom payment is to be remitted. When the court imposes
restitution or reparation and requires that the defendant pay a desig-
nated surcharge thereon pursuant to the provisions of subdivision eight
of section 60.27 of the penal law, it shall designate the official or
organization other than the district attorney, selected pursuant to
subdivision eight of this section, to whom payment is to be remitted.
(a) The court may direct:
(i) That the defendant pay the entire amount at the time sentence is
pronounced;
(ii) That the defendant pay the entire amount at some later date; or
(iii) That the defendant pay a specified portion at designated peri-
odic intervals ACCORDING TO THE PROVISIONS OF SECTION 400.50 OF THIS
TITLE.
(b) When the court imposes both (i) a fine and (ii) restitution or
reparation and such designated surcharge upon an individual and imposes
a schedule of payments, the court shall also direct that payment of
restitution or reparation and such designated surcharge take priority
over the payment of the fine.
(c) Where the defendant is sentenced to a period of probation as well
as a fine, restitution or reparation and such designated surcharge, the
court may direct that payment of the fine, restitution or reparation and
such designated surcharge be a condition of the sentence.
(d) When a court requires that restitution or reparation and such
designated surcharge be made it must direct that notice be given to a
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person or persons to whom it is to be paid of the conditions under which
it is to be remitted; the name and address of the public official or
organization to whom it is to be remitted for payment and the amount
thereof; and the availability of civil proceedings for collection under
subdivision six of this section. An official or organization designated
to receive payment under this subdivision must report to the court any
failure to comply with the order and shall cooperate with the district
attorney pursuant to his responsibilities under subdivision six of this
section.
(e) Where cash bail has been posted by the defendant as the principal
and is not forfeited or assigned, the court at its discretion may order
that bail be applied toward payment of any order of restitution or repa-
ration or fine. If the court so orders, the bail proceeds shall be
applied to payment first of the restitution or reparation and then of
the fine.
S 6. Subdivision 1 of section 112 of the correction law, as amended by
chapter 476 of the laws of 1970, is amended to read as follows:
1. The commissioner [of correction] shall have the superintendence,
management and control of the correctional facilities in the department
and of the inmates confined therein, and of all matters relating to the
government, discipline, policing, contracts and fiscal concerns thereof.
He shall have the power and it shall be his duty to inquire into all
matters connected with said correctional facilities. He shall make such
rules and regulations, not in conflict with the statutes of this state,
for the government of the officers and other employees of the department
assigned to said facilities, and in regard to the duties to be performed
by them, and for the government and discipline of each correctional
facility, as he may deem proper, and shall cause such rules and regu-
lations to be recorded by the superintendent of the facility, and a copy
thereof to be furnished to each employee assigned to the facility. He
shall also prescribe a system of accounts and records to be kept at each
correctional facility, which system shall be uniform at all of said
facilities, and he shall also make rules and regulations for a record of
photographs and other means of identifying each inmate received into
said facilities. He shall appoint and remove, subject to the civil
service law and rules, subordinate officers and other employees of the
department who are assigned to correctional facilities. FURTHER, HE IS
EMPOWERED TO PROMULGATE NECESSARY RULES AND REGULATIONS TO IMPLEMENT AND
CARRY OUT THE PURPOSES OF THE COMMUNITY REIMBURSEMENT ACCOUNT AS DEFINED
AND ESTABLISHED IN SECTION ONE HUNDRED SIXTEEN-A OF THIS ARTICLE AND
SECTION 400.50 OF THE CRIMINAL PROCEDURE LAW.
S 7. Section 116 of the correction law, as amended by chapter 62 of
the laws of 2001, is amended to read as follows:
S 116. Inmates' funds. The warden or superintendent of each of the
institutions within the jurisdiction of the department [of correction]
shall deposit at least once in each week to his credit as such warden,
or superintendent, in such bank or banks as may be designated by the
comptroller, all the moneys received by him as such warden, or super-
intendent, as inmates' funds, and send to the comptroller and also to
the commissioner [of correction] monthly, a statement showing the amount
so received and deposited. Such statement of deposits shall be certified
by the proper officer of the bank receiving such deposit or deposits.
The warden, or superintendent, shall also verify by his affidavit that
the sum so deposited is all the money received by him as inmates' funds
during the month. Any bank in which such deposits shall be made shall,
before receiving any such deposits, file a bond with the comptroller of
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the state, subject to his approval, for such sum as he shall deem neces-
sary. [Upon a certificate of approval issued by the director of the
budget, pursuant to the provisions of section fifty-three of the state
finance law, the] THE amount of interest, if any, heretofore accrued and
hereafter to accrue on moneys so deposited, heretofore and hereafter
credited to the warden, or superintendent, by the bank from time to
time, shall be available for expenditure by the warden, or superinten-
dent, subject to the direction of the commissioner, for welfare work
among the inmates in his custody. The withdrawal of moneys so deposited
by such warden, or superintendent, as inmates' funds, including any
interest so credited, shall be subject to his check. Each warden, or
superintendent, shall each month provide the comptroller and also the
commissioner with a record of all withdrawals from inmates' funds. As
used in this section, the term "inmates' funds" means the funds in the
possession of the inmate at the time of his admission into the institu-
tion, funds earned by him as provided in section one hundred eighty-sev-
en of this chapter and any other funds received by him or on his behalf
and deposited with such warden or superintendent in accordance with the
rules and regulations of the commissioner EXCEPT FOR THE FUNDS SPECIFIED
IN SECTION ONE HUNDRED SIXTEEN-A OF THIS ARTICLE. Whenever the total
unencumbered value of funds in an inmate's account exceeds ten thousand
dollars, the superintendent shall give written notice to the state crime
victims board.
S 8. The correction law is amended by adding a new section 116-a to
read as follows:
S 116-A. COMMUNITY REIMBURSEMENT ACCOUNT. 1. EACH INMATE OF A CORREC-
TIONAL FACILITY WITHIN THE STATE WHO HAS RECEIVED A SENTENCE ACCORDING
TO THE PROVISIONS OF SECTIONS 60.27 AND 60.31 OF THE PENAL LAW AND HAS
BEEN ORDERED TO MAKE PAYMENTS FOR RESTITUTION AND REPARATION AND
REIMBURSEMENT TO THE STATE FOR COSTS OF INCARCERATION PURSUANT TO THE
PROVISIONS OF SECTION 400.50 OF THE CRIMINAL PROCEDURE LAW SHALL HAVE
HIS OR HER INCOME DEPOSITED IN A BANK APPROVED BY THE STATE COMPTROLLER
IN AN ACCOUNT TO BE KNOWN AS THE COMMUNITY REIMBURSEMENT ACCOUNT.
2. THE SUPERINTENDENT OF THE FACILITY IN WHICH THE INMATE IS INCARCER-
ATED SHALL DEPOSIT THE INCOME OF THE INMATE IN SUCH BANK ON A REGULAR
BASIS BUT IN NO CASE LESS THAN ONCE PER MONTH. REMITTANCES SHALL BE MADE
ON A TIMELY BASIS TO THE APPROPRIATE OFFICIAL AS ORDERED BY THE COURT.
3. THE SUPERINTENDENT SHALL KEEP AN ACCURATE FISCAL RECORD OF THE
DEPOSITS AND DISBURSEMENTS FROM THE INMATE'S COMMUNITY REIMBURSEMENT
ACCOUNT AND SHALL SEND A MONTHLY STATEMENT SHOWING THE AMOUNTS RECEIVED,
DEPOSITED AND DISBURSED AS ORDERED BY THE COURT AND CERTIFIED BY THE
PROPER OFFICIAL OF THE BANK, TO THE COMPTROLLER AND TO THE COMMISSIONER.
THE SUPERINTENDENT SHALL ALSO VERIFY BY HIS OR HER AFFIDAVIT THAT THE
SUM SO DEPOSITED IS ALL THE MONEY RECEIVED BY HIM OR HER FOR THE
INMATE'S COMMUNITY REIMBURSEMENT ACCOUNT AS DESIGNATED BY THE COURT
ACCORDING TO SECTION 400.50 OF THE CRIMINAL PROCEDURE LAW. THESE RECORDS
SHALL BE OPEN AT ALL TIMES TO THE COURT, TO THE COMMISSIONER AND TO THE
COMPTROLLER AND THEIR AUTHORIZED REPRESENTATIVES.
4. IN NO CASE SHALL ANY OF THE MONIES IN THIS ACCOUNT BE USED BY THE
DEPARTMENT OR THE FACILITY FOR ANY PURPOSE OTHER THAN THOSE DESIGNATED
IN SUBDIVISION ONE OF THIS SECTION.
S 9. The state finance law is amended by adding a new section 91-h to
read as follows:
S 91-H. COMMUNITY SAFETY FUND. 1. THERE IS HEREBY ESTABLISHED IN THE
JOINT CUSTODY OF THE COMPTROLLER AND THE COMMISSIONER OF TAXATION AND
FINANCE, A SPECIAL FUND TO BE KNOWN AS THE "COMMUNITY SAFETY FUND".
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2. SUCH FUND SHALL CONSIST OF ALL MONEYS RECEIVED BY THE STATE PURSU-
ANT TO PARAGRAPH (B) OF SUBDIVISION FIVE OF SECTION 400.50 OF THE CRIMI-
NAL PROCEDURE LAW AND ALL OTHER GRANTS, BEQUESTS OR OTHER MONEYS APPRO-
PRIATED, CREDITED OR TRANSFERRED THERETO FROM ANY OTHER FUND OR SOURCE
PURSUANT TO LAW.
3. MONEYS IN THE FUND SHALL BE KEPT SEPARATE AND APART AND SHALL NOT
BE COMMINGLED WITH ANY OTHER MONEYS IN THE CUSTODY OF THE COMPTROLLER
AND SHALL ONLY BE EXPENDED HEREIN AND IN SUCH AMOUNTS AS APPROVED BY THE
DIVISION OF THE BUDGET.
4. THE MONEYS RECEIVED BY SUCH FUND SHALL BE EXPENDED PURSUANT TO
APPROPRIATION ONLY TO REIMBURSE COSTS INCURRED BY LOCAL GOVERNMENTS FOR
PERSONNEL SERVICES ASSOCIATED WITH THE HIRING AND RETENTION OF NEW
POLICE OFFICERS WHOSE PRIMARY RESPONSIBILITY SHALL BE TO PREVENT VIOLENT
AND SERIOUS CRIMES. NONE OF THE MONEYS EXPENDED PURSUANT TO THIS SUBDI-
VISION SHALL BE FOR THE REIMBURSEMENT OF COSTS INCURRED BY AGENCIES OF
CITIES WITH POPULATIONS OF ONE MILLION OR MORE.
5. MONEY MAY BE EXPENDED PURSUANT TO THIS SECTION ONLY IN ACCORDANCE
WITH PLANS PREPARED BY SUCH LOCAL GOVERNMENTS AND APPROVED BY THE COMMU-
NITY SAFETY COUNCIL ESTABLISHED PURSUANT TO SUBDIVISION SIX OF THIS
SECTION ACCORDING TO THE STANDARDS PROVIDED FOR IN SUBDIVISION SEVEN OF
THIS SECTION.
6. THE COMMUNITY SAFETY COUNCIL SHALL CONSIST OF SIX MEMBERS APPOINTED
AS FOLLOWS: TWO MEMBERS, TO BE APPOINTED BY THE GOVERNOR ON THE RECOM-
MENDATION OF THE TEMPORARY PRESIDENT OF THE SENATE; TWO MEMBERS, TO BE
APPOINTED BY THE GOVERNOR UPON THE RECOMMENDATION OF THE SPEAKER OF THE
ASSEMBLY; ONE MEMBER, TO BE APPOINTED BY THE GOVERNOR UPON THE RECOMMEN-
DATION OF THE MINORITY LEADER OF THE SENATE; AND ONE MEMBER, TO BE
APPOINTED UPON THE RECOMMENDATION OF THE MINORITY LEADER OF THE ASSEM-
BLY. THE TERM OF APPOINTMENT SHALL BE FOR A PERIOD OF TWO YEARS.
APPOINTMENT TO THE COUNCIL SHALL NOT CONSTITUTE THE HOLDING OF A PUBLIC
OFFICE. THE COUNCIL SHALL REPORT ANNUALLY TO THE LEGISLATURE ON THE
EXPENDITURE OF MONEYS FROM THE COMMUNITY SAFETY FUND AND THE ACTIVITIES
FINANCED WITH SUCH MONEYS.
7. MONEYS SHALL BE GRANTED TO LOCAL GOVERNMENTS WHO ACCORDING TO THE
MOST RECENT AVAILABLE STATISTICS DEMONSTRATE TO THE COUNCIL THAT SUCH
LOCAL GOVERNMENT HAS BEEN SUBJECT TO A SIGNIFICANT INCREASE IN VIOLENT
OR SERIOUS CRIMES OVER THE NUMBER OF SUCH CRIMES AS REPORTED IN THE TWO
THOUSAND FOUR CALENDAR YEAR. IN ORDER TO IMPLEMENT AND ASSIST IN THE
IMPLEMENTATION OF THE PROVISIONS OF THIS SUBDIVISION THE COUNCIL MAY
REQUEST AND SHALL RECEIVE THE ASSISTANCE OF THE DIVISION OF CRIMINAL
JUSTICE SERVICES.
S 10. This act shall take effect on the first of November next
succeeding the date on which it shall have become a law.