Senate Bill S3152

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

                                  3152

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            February 3, 2015
                               ___________

Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the civil practice law and rules, in relation to  creat-
  ing  a  civil  course  of  action  to recover the value of any benefit
  received from any public retirement system or retirement  plan  by  an
  elected official who has been convicted of certain felonies

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

  Section 1. Section 1310 of the civil practice law and rules is amended
by adding a new subdivision 2-a to read as follows:
  2-A. "PROCEEDS OF A VIOLATION OF THE PUBLIC  TRUST"  MEANS  AN  AMOUNT
EQUIVALENT TO THE MONETARY VALUE OF ANY BENEFIT RECEIVED FROM ANY PUBLIC
RETIREMENT  SYSTEM  OR  RETIREMENT  PLAN  BY AN ELECTED OFFICIAL WHO HAS
COMMITTED A FELONY CRIME AS DEFINED IN SUBDIVISION 5-A OF THIS SECTION.
  S 2. Section 1310 of the civil practice law and rules  is  amended  by
adding a new subdivision 5-a to read as follows:
  5-A.  "POST-CONVICTION FORFEITURE CRIME INVOLVING AN ELECTED OFFICIAL"
MEANS:
  (A) ANY FELONY FOR COMMITTING, AIDING OR ABETTING A LARCENY OF  PUBLIC
FUNDS FROM THE STATE OR A MUNICIPALITY;
  (B)  ANY  FELONY  COMMITTED  IN  DIRECT  CONNECTION WITH SERVICE AS AN
ELECTED OFFICIAL; OR
  (C) ANY FELONY COMMITTED BY  SUCH  PERSON  WHO,  WITH  THE  INTENT  TO
DEFRAUD,  REALIZES  OR  OBTAINS,  OR  ATTEMPTS  TO  REALIZE OR OBTAIN, A
PROFIT, GAIN OR ADVANTAGE FOR HIMSELF  OR  HERSELF  OR  FOR  SOME  OTHER
PERSON,  THROUGH  THE  USE OR ATTEMPTED USE OF THE POWER, RIGHTS, PRIVI-
LEGES OR DUTIES OF HIS OR HER POSITION AS AN ELECTED OFFICIAL.
  S 3. The opening paragraph of subdivision 1 of  section  1311  of  the
civil  practice  law and rules, as amended by chapter 655 of the laws of
1990, is amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08321-01-5

              

S. 3152                             2

  A civil action may be commenced by the appropriate claiming  authority
against  a  criminal defendant to recover the property which constitutes
the proceeds of a crime, the substituted proceeds of a crime, an instru-
mentality of a crime or the real property instrumentality of a crime  or
to  recover  a  money  judgment  in an amount equivalent in value to the
property which constitutes the proceeds  of  a  crime,  the  substituted
proceeds of a crime, an instrumentality of a crime, or the real property
instrumentality  of  a  crime.  A  CIVIL  ACTION MAY BE COMMENCED BY THE
APPROPRIATE CLAIMING AUTHORITY AGAINST AN ELECTED OFFICIAL TO RECOVER  A
MONEY  JUDGMENT  WHICH  CONSTITUTES  THE  PROCEEDS OF A VIOLATION OF THE
PUBLIC TRUST. A civil action may be  commenced  against  a  non-criminal
defendant  to  recover  the property which constitutes the proceeds of a
crime, the substituted proceeds of a  crime,  an  instrumentality  of  a
crime,  or the real property instrumentality of a crime provided, howev-
er, that a judgment of forfeiture predicated upon clause (A) of subpara-
graph (iv) of paragraph (b) of subdivision three hereof shall be limited
to the amount of the proceeds of the crime. Any action under this  arti-
cle  must  be commenced within five years of the commission of the crime
and shall be civil, remedial, and in personam in nature and shall not be
deemed to be a penalty or criminal forfeiture for any purpose. Except as
otherwise specially provided by  statute,  the  proceedings  under  this
article  shall be governed by this chapter. An action under this article
is not a criminal proceeding and may not be  deemed  to  be  a  previous
prosecution under article forty of the criminal procedure law. AN ACTION
UNDER THIS ARTICLE AGAINST AN ELECTED OFFICIAL WHO IS NOT SUBJECT TO THE
PROVISIONS  OF  ARTICLE  3-B  OF  THE RETIREMENT AND SOCIAL SECURITY LAW
SHALL NOT IN ANY WAY BE DEEMED TO IMPEDE OR IMPAIR ANY RIGHTS OR  PRIVI-
LEGES  AFFORDED  TO  SUCH  ELECTED  OFFICIAL  AS  A MEMBER OF ANY PUBLIC
RETIREMENT SYSTEM OR RETIREMENT PLAN.
  S 4. Subdivision 1 of section 1311 of the civil practice law and rules
is amended by adding a new paragraph (a-1) to read as follows:
  (A-1) ACTIONS RELATING TO POST-CONVICTION FORFEITURE CRIMES  INVOLVING
ELECTED  OFFICIALS.  AN  ACTION RELATING TO A POST-CONVICTION FORFEITURE
CRIME INVOLVING AN ELECTED OFFICIAL MUST BE GROUNDED UPON  A  CONVICTION
OF  A FELONY DEFINED IN SUBDIVISION FIVE-A OF SECTION ONE THOUSAND THREE
HUNDRED TEN OF THIS ARTICLE, OR UPON CRIMINAL ACTIVITY  ARISING  FROM  A
COMMON  SCHEME  OR  PLAN OF WHICH SUCH A CONVICTION IS A PART, OR UPON A
COUNT OF AN INDICTMENT  OR  INFORMATION  ALLEGING  A  FELONY  WHICH  WAS
DISMISSED AT THE TIME OF A PLEA OF GUILTY TO A FELONY IN SATISFACTION OF
SUCH  COUNT.  A COURT MAY NOT GRANT FORFEITURE UNTIL SUCH CONVICTION HAS
OCCURRED. HOWEVER, AN ACTION MAY BE COMMENCED, AND A COURT MAY  GRANT  A
PROVISIONAL REMEDY PROVIDED UNDER THIS ARTICLE, PRIOR TO SUCH CONVICTION
HAVING OCCURRED. AN ACTION UNDER THIS PARAGRAPH MUST BE DISMISSED AT ANY
TIME  AFTER  SIXTY  DAYS  OF  THE  COMMENCEMENT OF THE ACTION UNLESS THE
CONVICTION UPON WHICH THE ACTION IS GROUNDED HAS OCCURRED, OR AN INDICT-
MENT OR INFORMATION UPON WHICH THE ASSERTED CONVICTION IS TO BE BASED IS
PENDING IN A SUPERIOR COURT. AN ACTION UNDER  THIS  PARAGRAPH  SHALL  BE
STAYED  DURING THE PENDENCY OF A CRIMINAL ACTION WHICH IS RELATED TO IT;
PROVIDED, HOWEVER, THAT SUCH STAY SHALL  NOT  PREVENT  THE  GRANTING  OR
CONTINUANCE OF ANY PROVISIONAL REMEDY PROVIDED UNDER THIS ARTICLE OR ANY
OTHER PROVISIONS OF LAW.
  S 5. This act shall take effect immediately.