S T A T E O F N E W Y O R K
________________________________________________________________________
5506
2013-2014 Regular Sessions
I N A S S E M B L Y
February 28, 2013
___________
Introduced by M. of A. GABRYSZAK, CASTRO, BROOK-KRASNY -- Multi-Spon-
sored by -- M. of A. SWEENEY, TITUS, WEISENBERG -- read once and
referred to the Committee on Codes
AN ACT to amend the penal law, the criminal procedure law and the civil
practice law and rules, in relation to requiring restitution or repa-
ration for all crimes and providing additional methods of enforcement
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 60.27 of the penal law, as amended
by chapter 279 of the laws of 2008, is amended to read as follows:
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 restitu-
tion 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 restitu-
tion or reparation, the court shall require[, unless the interests of
justice dictate otherwise], in addition to any of the dispositions
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09173-01-3
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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.
S 2. Subdivision 2 of section 60.27 of the penal law, as amended by
chapter 618 of the laws of 1992, is amended to read as follows:
2. [Whenever the court requires restitution or reparation to be made,
the] FOR EVERY OFFENSE 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.
S 3. Paragraph (b) of subdivision 4 of section 60.27 of the penal law,
as amended by chapter 313 of the laws of 2011, is amended to read as
follows:
(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, THE
PARENT OR PARENTS OF A VICTIM OF A HOMICIDE OFFENSE, 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.
S 4. Paragraph (b) of subdivision 6 of section 420.10 of the criminal
procedure law, as amended by chapter 618 of the laws of 1992, is amended
to read as follows:
(b) The district attorney [may, in his or her discretion, and must],
upon order of the court, SHALL institute proceedings to collect such
fine, restitution or reparation INCLUDING, BUT NOT LIMITED TO, THE
RETENTION OF A COLLECTION AGENCY PREVIOUSLY APPROVED BY THE COURT IN
ACCORDANCE WITH THE GUIDELINES ESTABLISHED BY THE OFFICE OF COURT ADMIN-
ISTRATION.
S 5. Subdivision 6 of section 420.10 of the criminal procedure law is
amended by adding a new paragraph (c) to read as follows:
(C) THE COURT MAY MAKE AN INCOME DEDUCTION ORDER FOR RESTITUTION OR
REPARATION ENFORCEMENT UNDER SECTION FIFTY-TWO HUNDRED FORTY-TWO OF THE
CIVIL PRACTICE LAW AND RULES.
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S 6. The section heading of section 5241 of the civil practice law and
rules, as added by chapter 809 of the laws of 1985, is amended to read
as follows:
Income execution for support, RESTITUTION OR REPARATION enforcement.
S 7. Subdivision (a) of section 5241 of the civil practice law and
rules is amended by adding a new paragraph 1-a to read as follows:
1-A. "ORDER OF RESTITUTION OR REPARATION" MEANS ANY ORDER OF A COURT
REQUIRING, AS PART OF A SENTENCE IMPOSED UPON A PERSON CONVICTED OF AN
OFFENSE, A DEFENDANT TO MAKE RESTITUTION OF THE FRUITS OF HIS OFFENSE OR
REPARATION FOR THE LOSS OR DAMAGE CAUSED THEREBY.
S 8. Paragraphs 2, 3, 7 and 8 of subdivision (a) of section 5241 of
the civil practice law and rules, as added by chapter 809 of the laws of
1985, are amended to read as follows:
2. "Debtor" means any person directed to make payments by an order of
support, RESTITUTION OR REPARATION.
3. "Creditor" means any person entitled to enforce an order of
support, including a support collection unit OR AN ORDER OF RESTITUTION
OR REPARATION.
7. "Default" means the failure of a debtor to remit to a creditor
three payments on the date due in the full amount directed by [the] AN
order of support, RESTITUTION OR REPARATION or the accumulation of
arrears equal to or greater than the amount directed to be paid for one
month, whichever first occurs.
8. "Mistake of fact" means an error in the amount of current support,
RESTITUTION OR REPARATION or arrears or in the identity of the debtor or
that the order of support, RESTITUTION OR REPARATION does not exist or
has been vacated.
S 9. Paragraph 1 of subdivision (b) of section 5241 of the civil prac-
tice law and rules, as amended by chapter 59 of the laws of 1993, is
amended to read as follows:
(1) When a debtor is in default, an execution for support enforcement
may be issued by the support collection unit, or by the sheriff, the
clerk of THE court or the attorney for the creditor as an officer of the
court. WHEN A DEBTOR IS IN DEFAULT, AN EXECUTION FOR RESTITUTION OR
REPARATION ENFORCEMENT MAY BE ISSUED BY THE SHERIFF, THE CLERK OF THE
COURT OR THE ATTORNEY FOR THE CREDITOR AS AN OFFICER OF THE COURT. Where
a debtor is receiving or will receive income, an execution for
deductions therefrom in amounts not to exceed the limits set forth in
subdivision (g) of this section may be served upon an employer or income
payor after notice to the debtor. The amount of the deductions to be
withheld shall be sufficient to ensure compliance with the direction in
the order of support, RESTITUTION OR REPARATION and shall include an
additional amount to be applied to the reduction of arrears. The credi-
tor may amend the execution before or after service upon the employer or
income payor to reflect additional arrears or payments made by the
debtor after notice pursuant to subdivision (d) of this section, or to
conform the execution to the facts found upon a determination made
pursuant to subdivision (e) of this section.
S 10. The subdivision heading, the opening paragraph and subparagraph
(ii) of paragraph 1 of subdivision (c) of section 5241 of the civil
practice law and rules, the subdivision heading as amended by chapter 59
of the laws of 1993 and the opening paragraph and subparagraph (ii) of
paragraph 1 as amended by chapter 214 of the laws of 1998, are amended
to read as follows:
Execution for support, RESTITUTION OR REPARATION enforcement; form.
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The income execution shall contain the caption of the order of
support, RESTITUTION OR REPARATION and specify the date that the order
of support, RESTITUTION OR REPARATION was entered, the court in which it
was entered, the amount of the periodic payments directed, the amount of
arrears, the nature of the default and the names of the debtor and cred-
itor. In addition, the income execution shall include:
(ii) the amount of the deductions to be made therefrom on account of
current support, RESTITUTION OR REPARATION and the amount to be applied
to the reduction of arrears;
S 11. Subdivision (e) of section 5241 of the civil practice law and
rules, as amended by chapter 94 of the laws of 2008, is amended to read
as follows:
(e) Determination of mistake of fact. Where the execution has been
issued by the support collection unit, the debtor may assert a mistake
of fact and shall have an opportunity to make a submission in support of
the objection within fifteen days from service of a copy thereof. Ther-
eafter, the agency shall determine the merits of the objection, and
shall notify the debtor of its determination within forty-five days
after notice to the debtor as provided in subdivision (d) of this
section. If the objection is disallowed, the debtor shall be notified
that the income execution will be served on the employer or income
payor, and of the time that deductions will begin. Where the income
execution has been issued by an attorney as officer of the court, or by
the sheriff, or by the clerk of the court, the debtor may assert a
mistake of fact within fifteen days from service of a copy thereof by
application to the supreme court or to the family court having jurisdic-
tion in accordance with section four hundred sixty-one of the family
court act. If application is made to the family court, such application
shall be by petition on notice to the creditor and it shall be heard and
determined in accordance with the provisions of section four hundred
thirty-nine of the family court act, and a determination thereof shall
be made, and the debtor notified thereof within forty-five days of the
application. If application is made to the supreme court such applica-
tion shall be by order to show cause or motion on notice to the creditor
in the action in which the order or judgement sought to be enforced was
entered and a determination thereof shall be made, and the debtor noti-
fied thereof within forty-five days of the application. WHERE THE
INCOME EXECUTION HAS BEEN ISSUED BY AN ATTORNEY AS OFFICER OF THE COURT,
OR BY THE SHERIFF, OR BY THE CLERK OF THE COURT TO ENFORCE AN ORDER OF
RESTITUTION OR REPARATION, THE DEBTOR MAY ASSERT A MISTAKE OF FACT WITH-
IN FIFTEEN DAYS FROM SERVICE OF A COPY THEREOF BY APPLICATION TO THE
SUPREME COURT HAVING ISSUED SUCH ORDER. SUCH APPLICATION SHALL BE BY
PETITION ON NOTICE TO THE CREDITOR AND, IT SHALL BE HEARD AND DETERMINED
IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE FOUR OF THIS CHAPTER, AND A
DETERMINATION THEREOF SHALL BE MADE, AND THE DEBTOR NOTIFIED THEREOF
WITHIN FORTY-FIVE DAYS OF THE APPLICATION.
S 12. The opening paragraph of paragraph 1 of subdivision (g) of
section 5241 of the civil practice law and rules, as amended by chapter
398 of the laws of 1997, is amended to read as follows:
An employer or income payor served with an income execution shall
commence deductions from income due or thereafter due to the debtor no
later than the first pay period that occurs fourteen days after service
of the execution, and shall remit payments to the creditor within seven
business days of the date that the debtor is paid. Each payment remit-
ted by an employer or income payor shall include, in addition to the
identity and social security number of the debtor, the date and amount
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of each withholding of the debtor's income included in the payment. If
the money due to the debtor consists of salary or wages and his or her
employment is terminated by resignation or dismissal at any time after
service of the execution, the levy shall thereafter be ineffective, and
the execution shall be returned, unless the debtor is reinstated or
re-employed within ninety days after such termination. An employer must
notify the issuer promptly when the debtor terminates employment and
provide the debtor's last address and name and address of the new
employer, if known. Where the income is compensation paid or payable to
the debtor for personal services, the amount of the deductions to be
withheld FOR SUPPORT ENFORCEMENT shall not exceed the following:
S 13. Subdivision (g) of section 5241 of the civil practice law and
rules is amended by adding a new paragraph 5 to read as follows:
(5) WHERE THE INCOME IS COMPENSATION PAID OR PAYABLE TO THE DEBTOR FOR
PERSONAL SERVICES, THE AMOUNT OF THE DEDUCTIONS TO BE WITHHELD FOR
RESTITUTION OR REPARATION SHALL NOT EXCEED FIFTY PERCENT OF THE EARNINGS
OF THE DEBTOR REMAINING AFTER THE DEDUCTION THEREFROM OF ANY AMOUNTS
REQUIRED BY LAW TO BE WITHHELD ("DISPOSABLE EARNINGS").
S 14. The section heading and subdivisions (a) and (b) of section 5242
of the civil practice law and rules, as amended by chapter 170 of the
laws of 1994, are amended to read as follows:
Income deduction order for support, RESTITUTION OR REPARATION enforce-
ment. (a) Upon application of a creditor, for good cause shown, and
upon such terms as justice may require, the court may correct any
defect, irregularity, error or omission in an income execution for
support, RESTITUTION OR REPARATION enforcement issued pursuant to
section [5241] FIFTY-TWO HUNDRED FORTY-ONE of this article.
(b) Upon application of a creditor, for good cause shown, the court
may enter an income deduction order for support, RESTITUTION OR REPARA-
TION enforcement. In determining good cause, the court may take into
consideration evidence of the degree of such debtor's past financial
responsibility, credit references, credit history, and any other matter
the court considers relevant in determining the likelihood of payment in
accordance with the order of support, RESTITUTION OR REPARATION. Proof
of default establishes a prima facie case against the debtor, which can
be overcome only by proof of the debtor's inability to make the
payments. Unless the prima facie case is overcome, the court shall
enter an income deduction order for support, RESTITUTION OR REPARATION
enforcement pursuant to this section.
S 15. Subdivision (g) of section 5242 of the civil practice law and
rules, as amended by chapter 170 of the laws of 1994, is amended to read
as follows:
(g) Where the court issues an income deduction order for RESTITUTION
ENFORCEMENT, REPARATION ENFORCEMENT OR support enforcement payable to
the support collection unit, as defined in paragraph nine of subdivision
(a) of section [5241] FIFTY-TWO HUNDRED FORTY-ONE of this article, each
payment remitted by an employer or income payor shall include, in addi-
tion to the identity and social security number of the debtor, the date
and amount of each withholding of the debtor's income included in the
payment.
S 16. This act shall take effect on the one hundred twentieth day
after it shall have become a law, except that any guidelines necessary
for the timely implementation of this act on its effective date shall be
established on or before such date.