S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7953

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             April 29, 2009
                               ___________

Introduced  by  M.  of  A.  LENTOL  --  (at  request  of the Division of
  Probation and Correctional Alternatives) -- read once and referred  to
  the Committee on Codes

AN  ACT  to  amend  the  criminal  procedure  law  and the penal law, in
  relation to restitution and reparation

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 5 of section 420.10 of the criminal procedure
law, as separately amended by chapters 233 and 506 of the laws of  1985,
the  second undesignated paragraph as amended by chapter 618 of the laws
of 1992, is amended to read as follows:
  5. Application for resentence. In any  case  where  the  defendant  is
unable  to  pay  a  fine[,] OR MAKE PAYMENT OF restitution or reparation
imposed by the court, he OR SHE may at any time apply to the  court  for
resentence.  In  such case, if the court is satisfied that the defendant
is unable to pay the fine, restitution or reparation it must:
  (a) Adjust the terms of payment; or
  (b) Lower the amount of the fine[, restitution or reparation]; or
  (c) Where the sentence consists of probation  or  imprisonment  and  a
fine[,  restitution  or  reparation], revoke the portion of the sentence
imposing the fine[, restitution or reparation]; or
  (d) Revoke the entire sentence imposed and resentence  the  defendant.
Upon  such  resentence  the  court may impose any sentence it originally
could have imposed, except that the amount of any fine[, restitution  or
reparation]  imposed may not be in excess of the amount the defendant is
able to pay AND RESTITUTION OR REPARATION SHALL CONTINUE.   IN NO  EVENT
SHALL  A  DEFENDANT  BE  INCARCERATED BECAUSE HE OR SHE IS UNABLE TO PAY
RESTITUTION OR REPARATION AS ORDERED THROUGH NO FAULT OF HIS OR HER  OWN
OR  IF  THE  DEFENDANT  HAS  MADE A GOOD FAITH EFFORT TO COMPLY WITH THE
RESTITUTION OR REPARATION ORDER.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07399-07-9

              

A. 7953                             2

  In any case where the defendant applies for resentencing with  respect
to  any  condition of the sentence relating to PAYMENT OF restitution or
reparation the court must order that notice of such  application  and  a
reasonable  opportunity  to  be  heard be given to the person or persons
given  notice  pursuant to subdivision one of this section. If the court
grants the defendant's application by changing the  original  order  for
restitution  or  reparation  in  any  manner,  the  court must place the
reasons therefor on the record.
  For the purposes of this subdivision, the court  shall  not  determine
that  the defendant is unable to pay the fine, OR MAKE PAYMENT OF resti-
tution or reparation ordered solely because of such  defendant's  incar-
ceration  but  shall  consider  all  the  defendant's  sources of income
including, but not limited to, moneys in the possession of an inmate  at
the  time  of his admission into such facility, funds earned by him in a
work release program as defined  in  subdivision  four  of  section  one
hundred fifty of the correction law, funds earned by him as provided for
in  section one hundred eighty-seven of the correction law and any other
funds received by him or on his behalf and  deposited  with  the  super-
intendent  or the municipal official of the facility where the person is
confined.
  S 2. Subdivision 6 of section 420.10 of the criminal procedure law  is
amended by adding a new paragraph (c) to read as follows:
  (C)  NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW, A RESTITUTION ORDER
IMPOSED AS PART OF ANY DISPOSITION AUTHORIZED BY THIS  CHAPTER  AND  THE
PENAL LAW, SHALL REMAIN IN EFFECT UNTIL THE AMOUNT OF MONIES OWED TO THE
VICTIM  IS FULLY SATISFIED UNLESS THE UNDERLYING CONVICTION WITH RESPECT
TO THE DISPOSITION HAS BEEN REVERSED OR VACATED, EXCEPT ANY VACATURE  OF
A  CONVICTION  PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY OF THIS CHAPTER.
WHENEVER ANY DISPOSITION IS REVOKED AND A DEFENDANT  IS  RESENTENCED  OR
WHERE  A  DISPOSITION IS OTHERWISE TERMINATED PURSUANT TO SECTION 410.90
OF THIS CHAPTER, THE DEFENDANT SHALL NOT  BE  RELIEVED  OF  HIS  OR  HER
RESPONSIBILITY  TO  COMPLY WITH ANY RESTITUTION ORDER PREVIOUSLY IMPOSED
BY A COURT OF COMPETENT JURISDICTION THAT APPLIES TO THE DEFENDANT UNTIL
THE RESTITUTION ORDER IS FULLY SATISFIED. THESE PROVISIONS  SHALL  APPLY
TO  ANY  INMATE  RELEASED  PURSUANT TO SECTION 70.40 OF THE PENAL LAW OR
SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE LAW, OR ANY INDIVIDUAL
WHO HAS COMPLETED HIS OR HER DISPOSITION.  NOTHING IN THIS SECTION SHALL
PROHIBIT THE INTERCEPTION OF TAX RETURNS, LOTTERY EARNINGS OR ANY  JUDG-
MENT  AWARDED  TO  THE  DEFENDANT OR INDIVIDUAL TO SATISFY THE AMOUNT OF
RESTITUTION OWED TO THE VICTIM OF AN OFFENSE, EXCEPT ANY  CHILD  SUPPORT
OBLIGATIONS  AS AUTHORIZED BY A COURT WHICH ARE OWED BY THE DEFENDANT OR
INDIVIDUAL AND ARE IN ARREARS.  IN NO EVENT SHALL A DEFENDANT BE  INCAR-
CERATED  BECAUSE  HE  OR  SHE  IS  UNABLE  TO PAY RESTITUTION AS ORDERED
THROUGH NO FAULT OF HIS OR HER OWN OR IF THE DEFENDANT HAS MADE  A  GOOD
FAITH EFFORT TO COMPLY WITH A RESTITUTION ORDER.
  S  3.  Section  60.27  of  the  penal law is amended by adding two new
subdivisions 2-a and 2-b to read as follows:
  2-A. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A  RESTITUTION  ORDER
IMPOSED  AS PART OF ANY DISPOSITION AUTHORIZED BY THE CRIMINAL PROCEDURE
LAW AND THIS CHAPTER, SHALL REMAIN IN EFFECT UNTIL THE AMOUNT OF  MONIES
OWED  TO  THE VICTIM IS FULLY SATISFIED UNLESS THE UNDERLYING CONVICTION
WITH RESPECT TO THE DISPOSITION HAS BEEN REVERSED OR VACATED, EXCEPT ANY
VACATURE OF A CONVICTION PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY OF THE
CRIMINAL PROCEDURE LAW.  WHENEVER  ANY  DISPOSITION  IS  REVOKED  AND  A
DEFENDANT  IS RESENTENCED OR WHERE A DISPOSITION IS OTHERWISE TERMINATED
PURSUANT TO SECTION 410.90 OF THE CRIMINAL PROCEDURE LAW, THE  DEFENDANT

A. 7953                             3

SHALL  BE  REQUIRED  TO  COMPLY  WITH  ANY  RESTITUTION ORDER PREVIOUSLY
IMPOSED BY A COURT OF COMPETENT JURISDICTION THAT APPLIES TO THE DEFEND-
ANT UNTIL THE RESTITUTION ORDER IS  FULLY  SATISFIED.  THESE  PROVISIONS
SHALL  APPLY  TO  ANY  INMATE RELEASED PURSUANT TO SECTION 70.40 OF THIS
TITLE OR SECTION TWO HUNDRED FIFTY-NINE-I OF THE EXECUTIVE  LAW  OR  ANY
INDIVIDUAL  WHO  HAS  COMPLETED  HIS OR HER DISPOSITION. NOTHING IN THIS
SECTION SHALL PROHIBIT THE INTERCEPTION OF TAX RETURNS, LOTTERY EARNINGS
OR ANY JUDGMENT AWARDED TO THE DEFENDANT OR INDIVIDUAL  TO  SATISFY  THE
AMOUNT  OF  RESTITUTION  OWED,  EXCEPT  ANY CHILD SUPPORT OBLIGATIONS AS
AUTHORIZED BY A COURT WHICH ARE OWED BY THE DEFENDANT OR INDIVIDUAL  AND
ARE  IN ARREARS.   IN NO EVENT SHALL A DEFENDANT BE INCARCERATED BECAUSE
HE OR SHE IS UNABLE TO PAY RESTITUTION AS ORDERED THROUGH  NO  FAULT  OF
HIS  OR  HER  OWN  OR  IF  THE DEFENDANT HAS MADE A GOOD FAITH EFFORT TO
COMPLY WITH A RESTITUTION ORDER.
  2-B. THE COURT SHALL TRANSMIT A COPY OF ANY RESTITUTION ORDER  IMPOSED
BY A CRIMINAL COURT TO THE CRIME VICTIMS BOARD.
  S 4. Paragraph (g) of subdivision 2 of section 65.10 of the penal law,
as  amended  by  chapter  618 of the laws of 1992, is amended to read as
follows:
  (g) Make restitution of the fruits of his or her offense or make repa-
ration, [in an amount he can afford to pay,] for the actual out-of-pock-
et loss caused thereby. When restitution or reparation is a condition of
the sentence, the court shall fix the  amount  thereof,  the  manner  of
performance[, specifically state the date when restitution is to be paid
in  full  prior  to the expiration of the sentence of probation] and may
establish  provisions  for  the  early  termination  of  a  sentence  of
probation  or conditional discharge pursuant to the provisions of subdi-
vision three of section 410.90 of the criminal procedure law  after  the
restitution  and  reparation  part  of a sentence of probation or condi-
tional discharge has been satisfied. The court shall provide that in the
event the person to whom restitution or reparation is to  be  made  dies
prior to the completion of said restitution or reparation, the remaining
payments shall be made to the estate of the deceased.
  S  5.  This  act  shall take effect on the sixtieth day after it shall
have become a law.