New York State - Executive - EXC - Article 22
ARTICLE 22 OFFICE OF VICTIM SERVICES
Section 620. Declaration of policy and legislative intent.
621. Definitions.
622. Office of victim services.
623. Powers and duties of the office.
624. Eligibility.
625. Filing of claims.
625-a. Information relative to claims; application forms.
625-b. Standardized victim notification and verification procedures for police officers.
626. Out-of-pocket loss; definition.
627. Determination of claims.
629. Judicial review.
630. Emergency awards.
631. Awards.
631-a. Crime victim service programs.
632. Manner of payment.
632-a. Crime victims.
633. Confidentiality of records.
634. Subrogation.
635. Severability of provisions.
636. Community violence intervention act.
§ 620. Declaration of policy and legislative intent. The legislature recognizes that many innocent persons suffer personal physical injury or death as a result of criminal acts. Such persons or their dependents may thereby suffer disability, incur financial hardships, or become dependent upon public assistance. The legislature finds and determines that there is a need for government financial assistance for such victims of crime. Accordingly, it is the legislature's intent that aid, care and support be provided by the state, as a matter of grace, for such victims of crime.
§ 621. Definitions. For the purposes of this article:
1. "Office" shall mean the office of victim services.
2. "Claimant" shall mean the person filing a claim pursuant to this article.
3. "Crime" shall mean (a) an act committed in New York state which would, if committed by a mentally competent criminally responsible adult, who has no legal exemption or defense, constitute a crime as defined in and proscribed by law; or
(b) an act committed outside the state of New York against a resident of the state of New York which would be compensable had it occurred within the state of New York and which occurred in a state which does not have an eligible crime victim compensation program as such term is defined in the federal victims of crime act of 1984; or
(c) an act of terrorism, as defined in section 2331 of title 18, United States Code, committed outside of the United States against a resident of New York state.
4. "Family", when used with reference to a person, shall mean (a) any person related to such person within the third degree of consanguinity or affinity, (b) any person maintaining a sexual relationship with such person, or (c) any person residing in the same household with such person.
5. "Victim" shall mean (a) a person who suffers personal physical injury as a direct result of a crime; (b) a person who is the victim of either the crime of (1) unlawful imprisonment in the first degree as defined in section 135.10 of the penal law, (2) kidnapping in the second degree as defined in section 135.20 of the penal law, (3) kidnapping in the first degree as defined in section 135.25 of the penal law, (4) menacing in the first degree as defined in section 120.13 of the penal law, (5) criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, (6) harassment in the second degree as defined in section 240.26 of the penal law, (7) harassment in the first degree as defined in section 240.25 of the penal law, (8) aggravated harassment in the second degree as defined in subdivision three or five of section 240.30 of the penal law, (9) aggravated harassment in the first degree as defined in subdivision two of section 240.31 of the penal law, (10) criminal contempt in the first degree as defined in subdivision (b) or subdivision (c) of section 215.51 of the penal law, (11) stalking in the fourth, third, second or first degree as defined in sections 120.45, 120.50, 120.55 and 120.60 of the penal law, (12) labor trafficking as defined in section 135.35 of the penal law, (13) sex trafficking as defined in section 230.34 of the penal law; or (14) sex trafficking of a child as defined in section 230.34-a of the penal law; a vulnerable elderly person or an incompetent or physically disabled person as defined in section 260.31 of the penal law who incurs a loss of savings as defined in subdivision twenty-four of this section; or a person who has had a frivolous lawsuit filed against them.
6. "Representative" shall mean one who represents or stands in the place of another person, including but not limited to an agent, an assignee, an attorney, a guardian, a committee, a conservator, a partner, a receiver, an administrator, an executor or an heir of another person, or a parent of a minor.
7. "Good samaritan" shall mean a person who, other than a law enforcement officer, acts in good faith (a) to apprehend a person who has committed a crime in his presence or who has in fact committed a felony, (b) to prevent a crime or an attempted crime from occurring, or (c) to aid a law enforcement officer in effecting an arrest.
8. "Essential personal property" shall mean articles of personal property necessary and essential to the health, welfare or safety of the victim.
9. "Elderly victim" shall mean a person sixty years of age or older who suffers loss, or damage as a direct result of a crime.
10. "Disabled victim" shall mean a person who has (a) physical, mental or medical impairment from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment.
11. For purposes of this article "child victim" shall mean a person less than eighteen years of age who suffers physical, mental or emotional injury, or loss or damage, as a direct result of a crime or any violation listed in subdivision twelve of section six hundred thirty-one of this article, or as a result of witnessing a crime or any violation listed in subdivision twelve of section six hundred thirty-one of this article.
12. "Frivolous lawsuit" shall mean a lawsuit brought by the individual who committed a crime against the victim of the crime, found to be frivolous, meritless and commenced to harass, intimidate or menace the victim by a court and costs were imposed upon the plaintiff pursuant to section eighty-three hundred three-a of the civil practice law and rules.
13. "Crime scene cleanup" shall mean removing, or attempting to remove from the crime scene, blood, dirt, stains, debris, odors, or other impurities caused by the crime or the processing of the crime scene and the repair or replacement of permanent fixtures and floor coverings, soiled, damaged, or rendered unusable or uncleanable by the crime, the processing of the crime scene, or by being taken into evidence.
14. "Securing a crime scene" shall mean taking immediate, emergency steps to return the residence where the crime occurred to the level of safety present prior to the crime. It shall include, but not be limited to, the repair or replacement of doors, windows, screens and locks or other points of entry damaged or rendered unusable by the crime.
15. "Livery" shall mean a for-hire vehicle duly licensed by the appropriate local licensing authority, designed to carry no more than five passengers for direct cash payment by such passenger and which is affiliated with a livery car base. The term "livery" shall not include a vehicle driven by a "black car operator", as defined in section one hundred sixty-cc of this chapter.
16. "Livery car base" shall mean a central facility, wherever located, that dispatches the livery operator to both pick-up and discharge passengers in the state.
17. "Livery operator" shall mean the registered owner of a livery, or a driver designated by such registered owner to operate the registered owner's livery as the registered owner's authorized designee, whose status as a livery operator victim arose out of and in the course of providing services while affiliated with a livery car base. The term "livery operator" shall not include a "black car operator", as defined in section one hundred sixty-cc of this chapter.
18. "Livery operator victim" shall mean a livery operator homicide victim or a livery operator assault victim.
19. "Livery operator assault victim" shall mean a livery operator who is the victim of a violent felony offense, as defined in subdivision one of section 70.02 of the penal law, which offense directly results in a serious physical injury, as defined in subdivision ten of section 10.00 of the penal law.
20. "Livery operator homicide victim" shall mean a livery operator who is the victim of a homicide, as defined in article one hundred twenty-five of the penal law.
21. "Local licensing authority" shall mean the governmental agency in the state, if any, that is authorized to license a livery and/or a livery car base.
22. "Financial counselling" shall mean financial services provided by an experienced financial counsellor or adviser which may include, but are not limited to: analysis of a victim's financial situation such as income producing capacity and crime related financial obligations, assistance with restructuring budget and debt, assistance in accessing insurance, public assistance and other benefits, assistance in completing the financial aspects of victim impact statements, and assistance in settling estates and handling guardianship matters.
23. "Relocation expenses" shall mean the cost of relocating a crime victim, when relocation is necessary for the health or safety of the victim. An award for relocation expenses of a victim shall include the reasonable cost of moving and transportation expenses for (a) the victim, which may include the relocation expenses of their spouse and any other person dependent for his or her principal support upon the victim or spouse who lives in the same residence as the victim, or (b) if the victim is a child victim eligible for such an award pursuant to this article, the child victim, which may include the relocation expenses of their parent, stepparent, guardian and any other person dependent for his or her principal support upon such parent, stepparent, and guardian who lives in the same residence as the child victim.
24. "Loss of savings" shall mean the result of any act or series of acts of larceny as defined in article one hundred fifty-five of the penal law, indicated by a criminal justice agency as defined in subdivision one of section six hundred thirty-one of this article, in which cash is stolen from a vulnerable elderly person or an incompetent or physically disabled person as defined in section 260.31 of the penal law.
* 25. "Domestic partner" shall mean a person who, with respect to another person:
(a) is formally a party in a domestic partnership or similar relationship with the other person, entered into pursuant to the laws of the United States or of any state, local or foreign jurisdiction, or registered as the domestic partner of the other person with any registry maintained by the employer of either party or any state, municipality, or foreign jurisdiction; or
(b) is formally recognized as a beneficiary or covered person under the other person's employment benefits or health insurance; or
(c) is dependent or mutually interdependent on the other person for support, as evidenced by the totality of the circumstances indicating a mutual intent to be a domestic partner including but not limited to: common ownership or joint leasing of real or personal property; common householding, shared income or shared expenses; children in common; signs of intent to marry or become a domestic partner under paragraph (a) or (b) of this subdivision; or the length of the personal relationship of the persons.
Each party to a domestic partnership shall be considered to be the domestic partner of the other party. "Domestic partner" shall not include a person who is related to the other person by blood in a manner that would bar marriage to the other person in New York state. "Domestic partner" also shall not include any person who is less than eighteen years of age or who is the adopted child of the other person or who is related by blood in a manner that would bar marriage in New York state to a person who is the lawful spouse of the other person.
* NB There are 2 sb 25's
* 25. "Employment-related transportation expenses" shall mean the costs in excess of those normally expended by a victim to get to and from their places of employment, due to the personal physical injuries sustained as a direct result of the crime upon which the claim is based. If required by law, such places of employment shall be reported to the appropriate taxing authority. Such costs shall not include the purchase, lease or rental of a vehicle.
* NB There are 2 sb 25's
§ 622. Office of victim services. There is hereby created in the executive department the office of victim services, hereinafter in this article referred to as the "office". The office shall be headed by a director, who shall be appointed by the governor for a term of three years. The director shall coordinate and recommend policy relating to the provision of services to crime victims. The director shall appoint staff and perform such other functions to ensure the efficient operation of the office within the amounts made available therefor by appropriation.
§ 623. Powers and duties of the office. The office shall have the following powers and duties:
1. To establish and maintain a principal office and such other offices within the state as it may deem necessary.
2. To appoint a secretary, counsel, clerks and such other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.
3. To adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of this article, including rules for the determination of claims, rules for the approval of attorneys' fees for representation before the office and/or before the appellate division upon judicial review as provided for in section six hundred twenty-nine of this article, rules for the definition and reasonable reimbursement of individual items of essential personal property considered essential and necessary for the victim's welfare pursuant to section six hundred thirty-one of this article, and rules for the authorization of qualified persons to assist claimants in the preparation of claims for presentation to the office.
4. To request from the division of state police, from county or municipal police departments and agencies and from any other state or municipal department or agency, or public authority, and the same are hereby authorized to provide, such assistance and data as will enable the office to carry out its functions and duties.
5. To hear and determine all claims for awards filed with the office pursuant to this article, and to reinvestigate or reopen cases as necessary.
6. To direct medical examination of victims.
7. To hold hearings, administer oaths or affirmations, examine any person under oath or affirmation and to issue subpoenas requiring the attendance and giving of testimony of witnesses and require the production of any books, papers, documentary or other evidence. The powers provided in this subdivision may be delegated by the director to any member or employee of the office. A subpoena issued under this subdivision shall be regulated by the civil practice law and rules.
8. To take or cause to be taken affidavits or depositions within or without the state.
9. To establish and maintain a special investigative unit to expedite processing of claims by senior citizens and special emergency situations, and to promote, in consultation with the office for the aging, the establishment of a volunteer program of home visitation to elderly and invalid victims of violent crime.
10. To advise and assist the governor in developing policies designed to recognize the legitimate rights, needs and interests of crime victims.
11. To coordinate state programs and activities relating to crime victims.
12. To cooperate with and assist political subdivisions of the state and not-for-profit organizations in the development of local programs for crime victims.
13. To study the operation of laws and procedures affecting crime victims and recommend to the governor and legislature proposals to improve the administration and effectiveness of such laws.
14. To establish an advisory council to assist in formulation of policies on the problems of crime victims and to provide recommendations to the director to improve the delivery of services to victims by the office.
15. To work with national associations, statewide coalitions, regional coalitions, victim service providers, and other advocates to address and advance the rights and interests of crime victims of the state.
16. To promote and conduct studies, research, analyses and investigations of matters affecting the interests of crime victims.
17. To coordinate training opportunities for crime victim advocates and service providers.
18. To serve as a clearinghouse for information relating to crime victims' problems and programs.
19. To accept, with the approval of the governor, as agent of the state, any grant including federal grants, any fines or penalties imposed pursuant to section three hundred forty-one or three hundred forty-two-a of the general business law and made payable to the office pursuant to section three hundred forty-seven-a of such law, or any gift for the purposes of this article. Any monies so received may be expended by the office to effectuate any purpose of this article, subject to the applicable provisions of the state finance law.
20. To render each year to the governor and to the legislature, on or before December first of each year, a written report on the office's activities including, but not limited to, specific information on each of the subdivisions of this section. Such report shall also include but not be limited to information regarding crime victim service programs, including:
(1) the programs funded by the office;
(2) other sources of funding for crime victims service programs;
(3) an assessment of the adequacy of the current level of appropriation to the office to meet the reasonable needs of crime victims service programs for funding under section six hundred thirty-one-a of this article; and
(4) an estimate of the reasonable needs of programs in the next fiscal year.
21. To render biennially to the governor and the legislature a written report on the manner in which the rights, needs and interests of crime victims are being addressed by the state's criminal justice system to include, but not be limited to:
(a) Information transmitted by the state office of probation and correctional alternatives under subdivision five of section 390.30 of the criminal procedure law and subdivision seven of section 351.1 of the family court act which the board shall compile, review and make recommendations on how to promote the use of restitution and encourage its enforcement.
(b) Information relating to the implementation of and compliance with article twenty-three of this chapter by the criminal justice agencies and the "crime victim-related agencies" of the state.
22. To make grants to local crime victim service programs and carry out related duties under section six hundred thirty-one-a of this article.
23. To delegate to specified employees of the office the power to disallow claims under circumstances where regulations of the office provide for disallowance without prejudice to the reopening of claims.
§ 624. Eligibility. 1. Except as provided in subdivision two of this section, the following persons shall be eligible for awards pursuant to this article:
(a) a victim of a crime;
(b) a surviving spouse, domestic partner, grandparent, parent, stepparent, guardian, brother, sister, stepbrother, stepsister, child, stepchild or grandchild of a victim of a crime who died as a direct result of such crime;
(c) any other person dependent for his principal support upon a victim of a crime who died as a direct result of such crime;
(d) any person or business represented by a person who has paid for or incurred the burial expenses of a victim who died as a direct result of such crime, except such person shall not be eligible to receive an award for other than burial expenses unless otherwise eligible under paragraph (a), (b) or (c) of this subdivision;
(e) an elderly victim of a crime;
(f) a disabled victim of a crime;
(g) a child victim of a crime;
(h) a parent, stepparent, grandparent, guardian, brother, sister, stepbrother or stepsister of a child victim of a crime;
(i) a surviving spouse of a crime victim who died from causes not directly related to the crime when such victim died prior to filing a claim with the office or subsequent to filing a claim but prior to the rendering of a decision by the office. Such award shall be limited to out-of-pocket loss incurred as a direct result of the crime; and
(j) a spouse, child or stepchild of a victim of a crime who has sustained personal physical injury as a direct result of a crime.
(k) a surviving spouse, grandparent, parent, stepparent, guardian, brother, sister, stepbrother, stepsister, child, stepchild, or grandchild of a victim of a crime who died as a direct result of such crime and where such crime occurred in the residence shared by such family member or members and the victim.
2. A person who is criminally responsible for the crime upon which a claim is based or an accomplice of such person shall not be eligible to receive an award with respect to such claim. A member of the family of a person criminally responsible for the crime upon which a claim is based or a member of the family of an accomplice of such person, shall be eligible to receive an award, unless the office determines pursuant to regulations promulgated to carry out the provisions and purposes of this article, that the person criminally responsible will receive substantial economic benefit or unjust enrichment from the compensation. In such circumstances the award may be reduced or structured in such way as to remove the substantial economic benefit or unjust enrichment to such person or the claim may be denied.
§ 625. Filing of claims. 1. A claim may be filed by a person eligible to receive an award, as provided in section six hundred twenty-four of this article, or, if such person is under the age of eighteen years, an incompetent, or a conservatee, by his relative, guardian, committee, conservator, or attorney.
2. A claim must be filed by the claimant not later than one year after the occurrence or discovery of the crime upon which such claim is based, one year after a court finds a lawsuit to be frivolous, or not later than one year after the death of the victim, provided, however, that upon good cause shown, the office may extend the time for filing. The office shall extend the time for filing where the claimant received no notice pursuant to section six hundred twenty-five-a of this article and had no knowledge of eligibility pursuant to section six hundred twenty-four of this article.
3. Claims shall be filed in person, by mail or electronically, in such manner as the office may prescribe. The office shall accept for filing all claims submitted by persons eligible under subdivision one of this section and alleging the jurisdictional requirements set forth in this article and meeting the requirements as to form in the rules and regulations promulgated to carry out the provisions and purposes of this article.
4. Upon filing of a claim pursuant to this article, the office shall promptly notify the district attorney of the county wherein the crime is alleged to have occurred. If, within ten days after such notification, such district attorney advises the office that a criminal prosecution is pending upon the same alleged crime and requests that action by the office be deferred, the office shall defer all proceedings under this article until such time as such criminal prosecution has been concluded and shall so notify such district attorney and the claimant. When such criminal prosecution has been concluded, such district attorney shall promptly so notify the office. Nothing in this section shall limit the authority of the office to grant emergency awards pursuant to section six hundred thirty of this article.
§ 625-a. Information relative to claims; application forms. 1. Every police station, precinct house, any appropriate location where a crime may be reported and any location required by the rules and regulations of the office shall have available informative booklets, pamphlets and other pertinent written information, including information cards, to be supplied by the office, relating to the availability of crime victims compensation including all necessary application blanks required to be filed with the office and shall display prominently posters giving notification of the existence and general provisions of this article, those provisions of the penal law that prohibit the intimidation of crime victims and the location of the nearest crime victim service program. The office may issue guidelines for the location of such display and shall provide posters, application forms, information cards and general information. Every victim who reports a crime in any manner whatsoever shall be given notice about the rights of crime victims and the existence of all relevant local victim's assistance programs and services pursuant to section six hundred twenty-five-b of this article, and supplied by the person receiving the report with information, application blanks, and information cards which shall clearly state: (a) that crime victims may be eligible for state compensation benefits; (b) the address and phone number of the office; (c) that police and district attorneys can help protect victims against harassment and intimidation; (d) the addresses and phone numbers of local victim service programs, where appropriate, or space for inserting that information; or (e) any other information the office deems appropriate. Such cards shall be designed by the office in consultation with local police, and shall be printed and distributed by the office. The office shall develop a system for distributing a sufficient supply of the information cards referred to in this subdivision, to all the appropriate designated locations, which shall include a schedule for meeting that requirement.
1-a. Every general hospital established under the laws of this state, which maintains facilities for providing out-patient emergency medical care, shall display prominently in its emergency room posters giving notification of the existence and general provisions of this chapter. The board may issue guidelines for the location of such display and shall provide posters, application forms and general information regarding the provision of this chapter to each such hospital.
2. No cause of action of whatever nature or kind arising out of a failure to give or receive the notice required by this section shall accrue to any person against the state or any of its agencies or local subdivisions, or, any police officer or other agent, servant or employee thereof, or any hospital or agents or employees thereof, nor shall any such failure be deemed or construed to affect or alter any time limitation or other requirement contained in this article for the filing or payment of a claim hereunder.
§ 625-b. Standardized victim notification and verification procedures for police officers. 1. The commissioner of the division of criminal justice services in cooperation with the office shall develop and implement a standardized procedure to be used by police officers, county sheriffs' departments and state police officers whereby victims of crime are notified about the rights of crime victims and the existence of programs designed to assist crime victims.
2. In establishing a victims assistance notification procedure, consideration shall be given to (a) developing a uniform method of informing victims of crime of their rights and services available, (b) including notification as part of a routine task performed in the course of law enforcement duties, and (c) documenting a victim's receipt of such notice.
3. All state or municipal printed forms for a police primary investigation report shall include a space to indicate that the victim did or did not receive information on victim's rights, office of victim services assistance and relevant local assistance pursuant to subdivision one of section six hundred twenty-five-a of this article.
§ 626. Out-of-pocket loss; definition. 1. Out-of-pocket loss shall mean unreimbursed and unreimbursable expenses or indebtedness reasonably incurred for medical care or other services necessary as a result of the injury upon which such claim is based, including such expenses incurred as a result of the exacerbation of a pre-existing disability or condition directly resulting from the crime or causally related to the crime. Such expenses or indebtedness shall include the cost of counseling for the eligible spouse, domestic partner, grandparents, parents, stepparents, guardians, brothers, sisters, stepbrothers, stepsisters, children, stepchildren or grandchildren of a homicide victim, and crime victims who have sustained a personal physical injury as the direct result of a crime and the spouse, children or stepchildren of such physically injured victim. For the purposes of this subdivision, the victim of a sex offense as defined in article one hundred thirty of the penal law is presumed to have suffered physical injury. Such counseling may be provided by local victim service programs, where available. It shall also include the cost of residing at or utilizing services provided by shelters for battered spouses and children who are eligible pursuant to subdivision two of section six hundred twenty-four of this article, and the cost of reasonable attorneys' fees for representation before the office and/or before the appellate division upon judicial review not to exceed one thousand dollars.
2. Out-of-pocket loss shall also include the cost of counseling for a child victim and the parent, stepparent, grandparent, guardian, brother, sister, stepbrother or stepsister of such victim, pursuant to regulations promulgated to carry out the provisions and purposes of this article.
3. Notwithstanding any inconsistent provision of this article, and without regard to the financial difficulty of the claimant, out-of-pocket loss also shall include the cost of unreimbursed and unreimbursable counseling expense or indebtedness reasonably incurred by relief workers who worked at the World Trade Center site in the immediate aftermath of the September eleventh, two thousand one terrorist attacks, or incurred by individuals who personally witnessed such attacks, where such counseling expense or indebtedness is incurred as a direct result of such work or of the witnessing of such attacks, and is incurred on or before December thirty-first, two thousand seven.
§ 627. Determination of claims. 1. The office shall determine claims in accordance with rules and regulations promulgated by the director. Such rules and regulations must provide for:
(a) written notification to an applying victim of their right to representation by counsel, as well as their potential eligibility for an award of attorney's fees pursuant to subdivision one of section six hundred twenty-six of this article;
(b) administrative procedures regarding the intake and initial processing of claims, including mandatory timelines for the initiation of investigation of a properly filed claim;
(c) the investigation and determination of claims regardless of whether the alleged criminal has been apprehended or prosecuted for or convicted of any crime based upon the same incident, or has been acquitted, or found not guilty of the crime in question owing to criminal irresponsibility or other legal exemption;
(d) the rebuttable presumption that a child reported missing for a time period exceeding seven days is a victim of a crime;
(e) the generation of a written decision for each properly filed claim, and written notice to the claimant of the written decision and their right to a copy of such a decision, as well as any rights to appeal that the claimant may have of the decision and a projected date of payment in the case of an award to the claimant;
(f) expedited determination of claims with respect to a livery operator within thirty days of the date upon which the claim was accepted for filing, as well as standards for awards of loss of earnings or support granted pursuant to rules and regulations promulgated in accordance with the provisions of this subdivision and subdivision three of section six hundred thirty-one of this article. Each award for loss of earnings pursuant to rules and regulations promulgated in accordance with this subdivision made with respect to a claim involving a livery operator assault victim shall be for such period of time as the office determines that the livery operator assault victim is unable to work and has lost earnings as a result of such assault, in an amount not to exceed twenty thousand dollars. Such award shall be distributed in increments of five hundred dollars per week. Each award for loss of support pursuant to rules and regulations promulgated in accordance with this subdivision made with respect to a claim involving a livery operator homicide victim shall be in the amount of twenty thousand dollars, distributed in increments of five hundred dollars per week; and
(g) provisions for any claimant to submit an additional claim for any loss of earnings or support in excess of the amount awarded pursuant to rules and regulations in accordance with paragraph (f) of this subdivision, or an additional claim for any other award pursuant to rules and regulations promulgated in accordance with this article, in each case pursuant to and in accordance with the other provisions of this article or any rules and regulations promulgated in accordance thereof and subject to any applicable maximum award limitations contained in this article.
2. The claimant may, within thirty days after receipt of the decision of the office regarding a claim, make an application in writing to the director of the office for reconsideration of such decision. The director, or his or her designee, shall consider such applications in accordance with rules and regulations promulgated by the director and may affirm or modify the decision. The decision of the director, or his or her designee, shall become the final determination of the office regarding the claim.
§ 629. Judicial review. 1. Within fifteen days after receipt of the copy of the report containing the final decision of the office, the comptroller shall, if in his judgment the award is illegal or excessive, notify the office of his conclusion, state the reasons for that conclusion, and provide specific recommendations for modification. Upon receiving such notification, the office shall have fifteen days within which to review and either modify or re-affirm its award. If after such modification or reaffirmation the comptroller continues to adjudge the award to be illegal or excessive, he may within fifteen days after receipt of such modification or reaffirmation, commence a proceeding in the appellate division of the supreme court, third department, to review the decision of the office. Such proceeding shall be heard in a summary manner and shall have precedence over all other civil cases in such court. Any claimant aggrieved by a final decision of the office may commence a proceeding to review that decision pursuant to article seventy-eight of the civil practice law and rules.
2. Any such proceeding shall be commenced in accordance with the civil practice law and rules.
§ 630. Emergency awards. 1. Notwithstanding the provisions of section six hundred twenty-seven of this article, if it appears to the office, that such claim is one with respect to which an award probably will be made, and undue hardship will result to the claimant if immediate payment is not made, the office may make one or more emergency awards to the claimant pending a final decision of the office or payment of an award in the case, provided, however, that the total amount of such emergency awards shall not exceed twenty-five hundred dollars. The amount of such emergency awards shall be deducted from any final award made to the claimant, and the excess of the amount of any such emergency award over the amount of the final award, or the full amount of any emergency awards if no final award is made, shall be repaid by the claimant to the office.
2. Notwithstanding the provisions of subdivision one of this section, if the crime upon which the claim is based resulted in the death of the victim, and it appears to the office that such claim is one with respect to which an award probably will be made, and undue hardship will result to the claimant if immediate payment is not made, the office may make one or more emergency awards to the claimant for reasonable burial expenses pending a final decision of the office or payment of an award in the case; provided, however, that the total amount of an emergency award or awards for reasonable burial expenses shall not exceed three thousand dollars. The amount of such emergency award or awards shall be deducted from any final award made to the claimant, and the excess of the amount of any such award or awards over the amount of the final award, of the full amount of an emergency award or awards if no final award is made, shall be repaid by the claimant to the office.
§ 631. Awards. 1. No award shall be made unless the office finds that (a) a crime was committed, (b) such crime directly resulted in personal physical injury to or the exacerbation of a preexisting disability, or condition, or death of, the victim, and (c) criminal justice agency records show that such crime was promptly reported to the proper authorities; and in no case may an award be made where the criminal justice agency records show that such report was made more than one week after the occurrence of such crime unless the office, for good cause shown, finds the delay to have been justified. Notwithstanding the foregoing provisions of this subdivision, in cases involving an alleged sex offense as contained in article one hundred thirty of the penal law or incest as defined in section 255.25, 255.26 or 255.27 of the penal law or labor trafficking as defined in section 135.35 of the penal law or sex trafficking as defined in sections 230.34 and 230.34-a of the penal law or an offense chargeable as a family offense as described in section eight hundred twelve of the family court act or section 530.11 of the criminal procedure law, the criminal justice agency report need only be made within a reasonable time considering all the circumstances, including the victim's physical, emotional and mental condition and family situation. For the purposes of this subdivision, "criminal justice agency" shall include, but not be limited to, a police department, a district attorney's office, and any other governmental agency having responsibility for the enforcement of the criminal laws of the state provided, however, that in cases involving such sex offense or family offense a criminal justice agency shall also mean a family court, a governmental agency responsible for child and/or adult protective services pursuant to title six of article six of the social services law and/or title one of article nine-B of the social services law, and any medical facility established under the laws of the state that provides a forensic physical examination for victims of rape and sexual assault.
1-a. No award shall be made for a frivolous lawsuit unless the office finds that the victim has been awarded costs pursuant to section eighty-three hundred three-a of the civil practice law and rules and the individual responsible for the payment of costs is unable to pay such costs provided, however, that in no event shall the amount of such costs exceed two thousand five hundred dollars.
2. Any award made pursuant to this article shall be in an amount not exceeding out-of-pocket expenses, including indebtedness reasonably incurred for medical or other services necessary as a result of the injury upon which the claim is based; loss of earnings or support resulting from such injury not to exceed thirty thousand dollars; loss of savings not to exceed thirty thousand dollars; burial expenses not exceeding six thousand dollars of a victim who died on or after November first, nineteen ninety-six as a direct result of a crime; the costs of crime scene cleanup and securing of a crime scene not exceeding twenty-five hundred dollars; reasonable relocation expenses not exceeding twenty-five hundred dollars; reasonable employment-related transportation expenses, not exceeding twenty-five hundred dollars and the unreimbursed cost of repair or replacement of articles of essential personal property lost, damaged or destroyed as a direct result of the crime. An award for loss of earnings shall include earnings lost by a parent or guardian as a result of the hospitalization of a child victim under age eighteen for injuries sustained as a direct result of a crime. In addition to the medical or other services necessary as a result of the injury upon which the claim is based, an award may be made for rehabilitative occupational training for the purpose of job retraining or similar employment-oriented rehabilitative services based upon the claimant's medical and employment history. For the purpose of this subdivision, rehabilitative occupational training shall include but not be limited to educational training and expenses. An award for rehabilitative occupational training may be made to a victim, or to a family member of a victim where necessary as a direct result of a crime. An award for employment-related transportation expenses shall be limited to the time period necessary due to the personal physical injuries sustained as a direct result of the crime upon which the claim is based, as determined by the medical information collected during the investigation of the claim.
3. Any award made for loss of earnings or support shall, unless reduced pursuant to other provisions of this article, be in an amount equal to the actual loss sustained, provided, however, that no such award shall exceed six hundred dollars for each week of lost earnings or support. Awards with respect to livery operator victims pursuant to paragraphs (f) and (g) of subdivision one of section six hundred twenty-seven of this article shall be granted in the amount and in the manner provided therein. The aggregate award for all such losses pursuant to this subdivision, including any awards made pursuant to paragraphs (f) and (g) of subdivision one of section six hundred twenty-seven of this article, shall not exceed thirty thousand dollars. If there are two or more persons entitled to an award as a result of the death of a person which is the direct result of a crime, the award shall be apportioned by the office among the claimants.
3-a. Any award made for loss of savings shall, unless reduced pursuant to other provisions of this article, be in an amount equal to the actual loss sustained.
4. Any award made pursuant to this article shall be reduced by the amount of any payments received or to be received by the claimant as a result of the injury (a) from or on behalf of the person who committed the crime, (b) under insurance programs mandated by law, (c) from public funds, (d) under any contract of insurance wherein the claimant is the insured or beneficiary, (e) as an emergency award pursuant to section six hundred thirty of this article. Notwithstanding the foregoing, where the person injured is a livery operator victim, because undue hardship may result to the claimant if immediate payment is not made, any award pursuant to paragraphs (f) and (g) of subdivision one of section six hundred twenty-seven of this article shall be granted without reduction for workers' compensation benefits to be received, if any.
5. (a) In determining the amount of an award, the office shall determine whether, because of his conduct, the victim of such crime contributed to the infliction of his injury, and the office shall reduce the amount of the award or reject the claim altogether, in accordance with such determination.
(b) Notwithstanding the provisions of paragraph (a) of this subdivision, the office shall disregard for this purpose the responsibility of the victim for his own injury where the record shows that the person injured was acting as a good samaritan, as defined in this article.
(c) Notwithstanding any inconsistent provision of this article, where the person injured acted as a good samaritan, the office may, without regard to the financial difficulty of the claimant, make an award for out-of-pocket losses. Such award may also include compensation for any loss of property up to five thousand dollars suffered by the victim during the course of his actions as a good samaritan.
(d) Notwithstanding any inconsistent provision of this article, where a person acted as a good samaritan, and was killed as a direct result of the crime, the office may, without regard to the financial difficulty of the claimant, make a lump sum award to such claimant for actual loss of support not to exceed thirty thousand dollars.
(e) Notwithstanding any inconsistent provision of this article, where a police officer or firefighter, both paid and volunteer, dies from injuries received in the line of duty as a direct result of a crime, the office may, without regard to the financial difficulty of the claimant, make an award for the unreimbursed counseling expenses of the eligible spouse, domestic partner, parents, brothers, sisters or children of such victim, and/or the reasonable burial expenses incurred by the claimant.
(f) Notwithstanding the provisions of paragraph (a) of this subdivision, the office shall disregard for this purpose the responsibility of the victim for his or her own loss of savings.
(g) Notwithstanding the provisions of paragraph (a) of this subdivision, if the crime upon which the claim is based resulted in the death of the victim, the office shall determine whether, because of his or her conduct, the victim of such crime contributed to the infliction of his or her injury, and the office may reduce the amount of the award by no more than fifty percent, in accordance with such determination.
6. (a) Claims may be approved only if the office finds that unless the claimant's award is approved he or she will suffer financial difficulty. However, no finding of financial difficulty is required for a claim for an emergency award or an award less than ten thousand dollars. In determining financial difficulty, the office shall consider all relevant factors, including but not limited to:
(1) the number of claimant's dependents;
(2) reasonable living expenses of the claimant and his family;
(3) any special health, rehabilitative or educational needs of the claimant and his dependents;
(4) the claimant's employment situation including income and potential earning capacity;
(5) the claimant's net financial resources after authorized deduction as provided in paragraphs (b) and (c) of this subdivision;
(6) whether claimant's financial resources will become exhausted during his lifetime; and
(7) the nature and the amount of claimant's total debt and liabilities, including the amount of debt incurred or to be incurred to pay for losses and expenses of the crime, and the extent to which claimant's essential assets will have to be liquidated.
(b) Claimant's net financial resources do not include the present value of future earnings, and shall be determined by the office by deducting from his total financial resources the value, within reasonable limits, of the following items:
(1) a homestead, not exceeding five hundred thousand dollars, or a total of ten years' rent for a renter;
(2) personal property consisting of clothing and strictly personal effects;
(3) household furniture, appliances and equipment;
(4) tools and equipment necessary for the claimant's trade, occupation or business;
(5) a family automobile;
(6) life insurance, except in death claims; and
(7) retirement, education and health plans or contributions to a retirement or pension program including but not limited to contributions to: (i) employee profit sharing plans, (ii) employee money purchase plans, (iii) 401 (k) plans, (iv) simplified employee pensions (SEP), (v) individual retirement accounts (IRA), (vi) 403 (b) plans, (vii) 457 plans, (viii) Keogh plans, (self employed), and (ix) any other plan or account for which contributions are made primarily for retirement purposes.
(c) The office, after taking into consideration the claimant's financial resources, may exempt that portion of the victim's or claimant's annual income required to meet reasonable living expenses and the value of inventory or other property necessary for the claimant's business or occupation or the production of income required to meet reasonable living expenses. In no event shall the aggregate value of exemptions under this paragraph exceed one hundred thousand dollars.
(d) Nothing contained in this subdivision shall be construed to mean that the office must maintain the same standard of living enjoyed by the claimant prior to the death or injury.
(e) The director shall promulgate such rules and regulations as are necessary for the implementation of this section.
7. Notwithstanding the provisions of subdivision six of this section, an award shall include out-of-pocket expenses, including indebtedness reasonably incurred by the victim of a sex offense or the person responsible for the victim of such sex offense, as such sex offense is defined in article one hundred thirty of the penal law, for a hospital or medical examination in connection with the investigation or prosecution of any such offense.
8. Notwithstanding the provisions of subdivisions one, two and three of this section, an elderly or disabled victim who has not been physically injured as a direct result of a crime, shall only be eligible for an award that includes the unreimbursed cost of repair or replacement of essential personal property that has been lost, damaged or destroyed as a direct result of a crime, transportation expenses incurred for necessary court appearances in connection with the prosecution of such crimes and the unreimbursed cost of counselling provided to the elderly or disabled victim on account of mental or emotional stress or financial counselling provided to the elderly or disabled victim on account of financial difficulty resulting from the incident in which the crime occurred if such counselling or financial counselling is commenced within one year from the date of the incident. For purposes of this subdivision, "necessary court appearances" shall include, but not be limited to, any part of trial from arraignment through sentencing, pre and post trial hearings and grand jury hearings.
8-a. Notwithstanding the provisions of subdivision one of this section, a vulnerable elderly person or an incompetent or physically disabled person, as defined in section 260.31 of the penal law, who has not been physically injured as a direct result of a crime, shall be eligible for an award that includes loss of savings.
9. Any award made for the cost of repair or replacement of essential personal property, including cash losses of essential personal property, shall be limited to an amount of twenty-five hundred dollars, except that all cash losses of essential personal property shall be limited to the amount of one hundred dollars. In the case of medically necessary life-sustaining equipment which was lost or damaged as the direct result of a crime, the award shall be limited to the amount of ten thousand dollars.
10. Notwithstanding any contrary provision of law, an award shall include reasonable transportation expenses incurred for necessary court appearances in connection with the prosecution of such crimes upon which the claim is based. For purposes of this subdivision, "necessary court appearances" shall include but not be limited to any part of a proceeding from arraignment through sentencing, pre and post trial hearings and grand jury hearings.
11. Notwithstanding the provisions of subdivisions one, two and three of this section, an individual who was a victim of either the crime of: menacing in the second degree as defined in subdivision one of section 120.14 of the penal law; menacing in the third degree as defined in section 120.15 of the penal law; reckless endangerment in the second degree as defined in section 120.20 of the penal law; reckless endangerment in the first degree as defined in section 120.25 of the penal law; unlawful imprisonment in the first degree as defined in section 135.10 of the penal law; kidnapping in the second degree as defined in section 135.20 of the penal law; kidnapping in the first degree as defined in section 135.25 of the penal law; criminal mischief in the fourth degree as defined in subdivision four of section 145.00 of the penal law; robbery in the third degree as defined in section 160.05 of the penal law; robbery in the second degree as defined in subdivision one, paragraph (b) of subdivision two or subdivision three of section 160.10 of the penal law; robbery in the first degree as defined in subdivisions two, three and four of section 160.15 of the penal law; unlawful surveillance in the second degree as defined in section 250.45 of the penal law; or unlawful surveillance in the first degree as defined in section 250.50 of the penal law who has not been physically injured as a direct result of such crime shall only be eligible for an award that includes loss of earnings, the unreimbursed cost of crime scene cleanup and securing a crime scene, and the unreimbursed costs of counseling provided to such victim on account of mental or emotional stress resulting from the incident in which the crime occurred.
12. Notwithstanding the provisions of subdivisions one, two and three of this section, an individual who was a victim of either the crime of menacing in the second degree as defined in subdivision two or three of section 120.14 of the penal law, menacing in the first degree as defined in section 120.13 of the penal law, criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, harassment in the second degree as defined in section 240.26 of the penal law, harassment in the first degree as defined in section 240.25 of the penal law, aggravated harassment in the second degree as defined in subdivision three or five of section 240.30 of the penal law, aggravated harassment in the first degree as defined in subdivision two of section 240.31 of the penal law, criminal contempt in the first degree as defined in subdivision (b) or subdivision (c) of section 215.51 of the penal law, or stalking in the fourth, third, second or first degree as defined in sections 120.45, 120.50, 120.55 and 120.60 of the penal law, respectively, or unlawful dissemination or publication of an intimate image as defined in section 245.15 of the penal law, or dissemination of an unlawful surveillance image in the second or first degree as defined in sections 250.55 and 250.60 of the penal law, respectively, or a hate crime as defined in section 485.05 of the penal law who has not been physically injured as a direct result of such crime shall only be eligible for an award that includes loss of earning or support, the unreimbursed cost of repair or replacement of essential personal property that has been lost, damaged or destroyed as a direct result of such crime, the unreimbursed cost for security devices to enhance the personal protection of such victim, the cost of residing at or utilizing services provided by shelters for battered spouses and children as provided in subdivision one of section six hundred twenty-six of this article, transportation expenses incurred for necessary court appearances in connection with the prosecution of such crime, the unreimbursed costs of counseling provided to such victim on account of mental or emotional stress resulting from the incident in which the crime occurred, the unreimbursed cost of crime scene cleanup and securing a crime scene, reasonable relocation expenses, and for occupational or job training. For purposes of this subdivision, "necessary court appearances" shall include, but not be limited to, any part of trial from arraignment through sentencing, pre and post trial hearings and grand jury hearings.
13. (a) Notwithstanding any other provision of law, rule, or regulation to the contrary, when any New York state accredited hospital, accredited sexual assault examiner program, or licensed health care provider furnishes services to any sexual assault survivor, including but not limited to a health care forensic examination in accordance with the sex offense evidence collection protocol and standards established by the department of health, such hospital, sexual assault examiner program, or licensed healthcare provider shall provide such services to the person without charge and shall bill the office directly. The office, in consultation with the department of health, shall define the specific services to be covered by the sexual assault forensic exam reimbursement fee, which must include at a minimum forensic examiner services, hospital or healthcare facility services related to the exam, and any necessary related laboratory tests or pharmaceuticals; including but not limited to HIV post-exposure prophylaxis provided by a hospital emergency room at the time of the forensic rape examination pursuant to paragraph (c) of subdivision one of section twenty-eight hundred five-i of the public health law. For a person eighteen years of age or older, follow-up HIV post-exposure prophylaxis costs shall continue to be reimbursed according to established office procedure. The office, in consultation with the department of health, shall also generate the necessary regulations and forms for the direct reimbursement procedure.
(b) The rate for reimbursement shall be the amount of itemized charges, to be reimbursed at the Medicaid rate and which shall cumulatively not exceed (1) eight hundred dollars for an exam of a sexual assault survivor where no sexual offense evidence collection kit is used; (2) one thousand two hundred dollars for an exam of a sexual assault survivor where a sexual offense evidence collection kit is used; (3) one thousand five hundred dollars for an exam of a sexual assault survivor who is eighteen years of age or older, with or without the use of a sexual offense evidence collection kit, and with the provision of a necessary HIV post-exposure prophylaxis seven day starter pack; and (4) two thousand five hundred dollars for an exam of a sexual assault survivor who is less than eighteen years of age, with or without the use of a sexual offense evidence collection kit, and with the provision of the full regimen of necessary HIV post-exposure prophylaxis. The hospital, sexual assault examiner program, or licensed health care provider must accept this fee as payment in full for these specified services. No additional billing of the survivor for said services is permissible. A sexual assault survivor may voluntarily assign any private insurance benefits to which she or he is entitled for the healthcare forensic examination, in which case the hospital or healthcare provider may not charge the office; provided, however, in the event the sexual assault survivor assigns any private health insurance benefit, such coverage shall not be subject to annual deductibles or coinsurance or balance billing by the hospital, sexual assault examiner program or licensed health care provider. A hospital, sexual assault examiner program or licensed health care provider shall, at the time of the initial visit, request assignment of any private health insurance benefits to which the sexual assault survivor is entitled on a form prescribed by the office; provided, however, such sexual assault survivor shall be advised orally and in writing that he or she may decline to provide such information regarding private health insurance benefits if he or she believes that the provision of such information would substantially interfere with his or her personal privacy or safety and in such event, the sexual assault forensic exam fee shall be paid by the office. Such sexual assault survivor shall also be advised that providing such information may provide additional resources to pay for services to other sexual assault victims. Such sexual assault survivor shall also be advised that the direct reimbursement program established by this subdivision does not automatically make them eligible for any other compensation benefits available from the office including, but not limited to, reimbursement for mental health counseling expenses, relocation expenses, and loss of earnings, and that such compensation benefits may only be made available to them should the sexual assault survivor or other person eligible to file pursuant to section six hundred twenty-four of this article, file a compensation application with the office. If he or she declines to provide such health insurance information, he or she shall indicate such decision on the form provided by the hospital, sexual assault examiner program or licensed health care provider, which form shall be prescribed by the office.
14. Notwithstanding any inconsistent provision of this article, where a victim dies from injuries received as a direct result of the World Trade Center terrorist attacks on September eleventh, two thousand one, the office may make an award for the unreimbursed and unreimbursable expense or indebtedness reasonably incurred for the cost of counseling for the eligible spouse, grandparents, parents, stepparents, guardians, brothers, sisters, stepbrothers, stepsisters, children, or stepchildren of such victim. Any award for such expense incurred on or before December thirty-first, two thousand seven, shall be made without regard to the financial difficulty of the claimant.
15. Notwithstanding any inconsistent provision of this article, where a victim is injured as a direct result of the World Trade Center terrorist attacks on September eleventh, two thousand one, the office may make an award for the unreimbursed and unreimbursable expense or indebtedness reasonably incurred by the claimant for medical care or counseling services necessary as a result of such injury. Any award for such expense or indebtedness incurred on or before December thirty-first, two thousand seven, shall be made without regard to the financial difficulty of the claimant.
16. Notwithstanding any inconsistent provision of this article, and without regard to the financial difficulty of the claimant, where a victim dies from injuries received as a direct result of the World Trade Center terrorist attacks on September eleventh, two thousand one, the office may make an award of reasonable burial expenses for such victim.
17. Notwithstanding the provisions of subdivision one of this section, where a child victim has not been physically injured as a direct result of a crime or any violation listed in subdivision twelve of this section, or has witnessed a crime or any violation listed in subdivision twelve of this section in which no physical injury occurred, the claimant shall only be eligible for an award that includes the unreimbursed cost of repair or replacement of essential personal property of the child victim that has been lost, damaged or destroyed as a direct result of a crime or any violation listed in subdivision twelve of this section, transportation expenses incurred by the claimant for necessary court appearances of the child victim in connection with the prosecution of such crimes, and, if counseling is commenced within one year from the date of the incident or its discovery, (1) the unreimbursed cost of counseling provided to the child victim on account of mental or emotional stress resulting from the incident in which the crime or any violation listed in subdivision twelve of this section occurred, and/or (2) the unreimbursed cost of counseling provided to the claimant eligible under paragraph (h) of subdivision one of section six hundred twenty-four of this article and resulting from the incident in which the crime or any violation listed in subdivision twelve of this section occurred.
18. Notwithstanding any inconsistent provision of this article and subject to any applicable maximum award limitations contained in this section, where a victim has died as a direct result of the crime upon which the claim is based and the crime occurred in the residence of a person eligible pursuant to paragraph (k) of subdivision one of section six hundred twenty-four of this article, the office may make no more than one award for crime scene clean-up related to such residence.
§ 631-a. Crime victim service programs. 1. The office shall make grants, within amounts appropriated for that purpose, for crime victim service programs to provide services to crime victims and witnesses. These programs shall be operated at the community level by not-for-profit organizations, by agencies of local government or by any combination thereof. Crime victim service programs may be designed to serve crime victims and witnesses in general in a particular community, or may be designed to serve a category of persons with special needs relating to a particular kind of crime.
2. The director shall promulgate regulations, relating to these grants, including guidelines for its determinations.
(a) These regulations shall be designed to promote:
(i) alternative funding sources other than the state, including local government and private sources;
(ii) coordination of public and private efforts to aid crime victims; and
(iii) long range development of services to all victims of crime in the community and to all victims and witnesses involved in criminal prosecutions.
(b) These regulations shall also provide for services including, but not limited to:
(i) assistance to claimants seeking crime victims compensation benefits;
(ii) referrals, crisis intervention and other counseling services;
(iii) services to elderly victims and to child victims and their families;
(iv) transportation and household assistance; and
(v) outreach to the community and education and training of law enforcement and other criminal justice officials to the needs of crime victims.
§ 632. Manner of payment. 1. The award shall be paid in a lump sum, except that in the case of death or protracted disability the award shall provide for periodic payments to compensate for loss of earnings or support. No award made pursuant to this article shall be subject to execution or attachment other than for expenses resulting from the injury which is the basis for the claim.
2. Where a person entitled to receive an award is a person under the age of eighteen years, an incompetent, or a conservatee, the award may be paid to a relative, guardian, committee, conservator, or attorney of such person on behalf of and for the benefit of such person. In such case the payee shall be required to file a periodic accounting of the award with the office and to take such other action as the office shall determine is necessary and appropriate for the benefit of the person under the age of eighteen years, incompetent or conservatee.
§ 632-a. Crime victims. 1. For the purposes of this section:
(a) "Crime" means (i) any felony defined in the laws of the state; or (ii) an offense in any jurisdiction which includes all of the essential elements of any felony defined in the laws of this state and: (A) the crime victim, as defined in subparagraph (i) of paragraph (d) of this subdivision, was a resident of this state at the time of the commission of the offense; or (B) the act or acts constituting the offense occurred in whole or in part in this state.
(b) "Profits from a crime" means (i) any property obtained through or income generated from the commission of a crime of which the defendant was convicted; (ii) any property obtained by or income generated from the sale, conversion or exchange of proceeds of a crime, including any gain realized by such sale, conversion or exchange; and (iii) any property which the defendant obtained or income generated as a result of having committed the crime, including any assets obtained through the use of unique knowledge obtained during the commission of, or in preparation for the commission of, a crime, as well as any property obtained by or income generated from the sale, conversion or exchange of such property and any gain realized by such sale, conversion or exchange.
(c) "Funds of a convicted person" means all funds and property received from any source by a person convicted of a specified crime, or by the representative of such person as defined in subdivision six of section six hundred twenty-one of this article excluding child support and earned income, where such person:
(i) is an incarcerated individual serving a sentence with the department of corrections and community supervision or a prisoner confined at a local correctional facility or federal correctional institute, and includes funds that a superintendent, sheriff or municipal official receives on behalf of an incarcerated individual or prisoner and deposits in an incarcerated individual account to the credit of the incarcerated individual pursuant to section one hundred sixteen of the correction law or deposits in a prisoner account to the credit of the prisoner pursuant to section five hundred-c of the correction law; or
(ii) is not an incarcerated individual or prisoner but who is serving a sentence of probation or conditional discharge or is presently subject to an undischarged indeterminate, determinate or definite term of imprisonment or period of post-release supervision or term of supervised release, but shall include earned income earned during a period in which such person was not in compliance with the conditions of his or her probation, parole, conditional release, period of post-release supervision by the department of corrections and community supervision or term of supervised release with the United States probation office or United States parole commission. For purposes of this subparagraph, such period of non-compliance shall be measured, as applicable, from the earliest date of delinquency determined by the department of corrections and community supervision, or from the earliest date on which a declaration of delinquency is filed pursuant to section 410.30 of the criminal procedure law and thereafter sustained, or from the earliest date of delinquency determined in accordance with applicable federal law, rules or regulations, and shall continue until a final determination sustaining the violation has been made by the trial court, the department of corrections and community supervision, or appropriate federal authority; or
(iii) is no longer subject to a sentence of probation or conditional discharge or indeterminate, determinate or definite term of imprisonment or period of post-release supervision or term of supervised release, and where within the previous three years: the full or maximum term or period terminated or expired or such person was granted a discharge by the state board of parole or the department of corrections and community supervision pursuant to applicable law, or granted a discharge or termination from probation pursuant to applicable law or granted a discharge or termination under applicable federal or state law, rules or regulations prior to the expiration of such full or maximum term or period; and includes only: (A) those funds paid to such person as a result of any interest, right, right of action, asset, share, claim, recovery or benefit of any kind that the person obtained, or that accrued in favor of such person, prior to the expiration of such sentence, term or period; (B) any recovery or award collected in a lawsuit after expiration of such sentence where the right or cause of action accrued prior to the expiration or service of such sentence; and (C) earned income earned during a period in which such person was not in compliance with the conditions of his or her probation, parole, conditional release, period of post-release supervision by the department of corrections and community supervision or term of supervised release with the United States probation office or United States parole commission. For purposes of this subparagraph, such period of non-compliance shall be measured, as applicable, from the earliest date of delinquency determined by the department of corrections and community supervision, or from the earliest date on which a declaration of delinquency is filed pursuant to section 410.30 of the criminal procedure law and thereafter sustained, or from the earliest date of delinquency determined in accordance with applicable federal law, rules or regulations, and shall continue until a final determination sustaining the violation has been made by the trial court, the department of corrections and community supervision, or appropriate federal authority.
(d) "Crime victim" means (i) the victim of a crime; (ii) the representative of a crime victim as defined in subdivision six of section six hundred twenty-one of this article; (iii) a good samaritan as defined in subdivision seven of section six hundred twenty-one of this article; (iv) the office of victim services or other governmental agency that has received an application for or provided financial assistance or compensation to the victim.
(e) (i) "Specified crime" means:
(A) a violent felony offense as defined in subdivision one of section 70.02 of the penal law;
(B) a class B felony offense defined in the penal law;
(C) an offense for which a merit time allowance may not be received against the sentence pursuant to paragraph (d) of subdivision one of section eight hundred three of the correction law;
(D) an offense defined in the penal law that is titled in such law as a felony in the first degree;
(E) grand larceny in the fourth degree as defined in subdivision six of section 155.30 or grand larceny in the second degree as defined in section 155.40 of the penal law;
(F) criminal possession of stolen property in the second degree as defined in section 165.52 of the penal law; or
(G) an offense in any jurisdiction which includes all of the essential elements of any of the crimes specified in clauses (A) through (F) of this subparagraph and either the crime victim as defined in subparagraph (i) of paragraph (d) of this subdivision was a resident of this state at the time of the commission of the offense or the act or acts constituting the crime occurred in whole or in part in this state.
(ii) Notwithstanding the provisions of subparagraph (i) of this paragraph a "specified crime" shall not mean or include an offense defined in any of the following articles of the penal law: articles one hundred fifty-eight, one hundred seventy-eight, two hundred twenty, two hundred twenty-one, two hundred twenty-five, and two hundred thirty.
(f) "Earned income" means income derived from one's own labor or through active participation in a business as distinguished from income from, for example, dividends or investments.
2. (a) Every person, firm, corporation, partnership, association or other legal entity, or representative of such person, firm, corporation, partnership, association or entity, which knowingly contracts for, pays, or agrees to pay: (i) any profits from a crime as defined in paragraph (b) of subdivision one of this section, to a person charged with or convicted of that crime, or to the representative of such person as defined in subdivision six of section six hundred twenty-one of this article; or (ii) any funds of a convicted person, as defined in paragraph (c) of subdivision one of this section, where such conviction is for a specified crime and the value, combined value or aggregate value of the payment or payments of such funds exceeds or will exceed ten thousand dollars, shall give written notice to the office of the payment or obligation to pay as soon as practicable after discovering that the payment or intended payment constitutes profits from a crime or funds of a convicted person.
(b) Notwithstanding subparagraph (ii) of paragraph (a) of this subdivision, whenever the payment or obligation to pay involves funds of a convicted person that a superintendent, sheriff or municipal official receives or will receive on behalf of an incarcerated individual serving a sentence with the department of corrections and community supervision or prisoner confined at a local correctional facility and deposits or will deposit in an incarcerated individual account to the credit of the incarcerated individual or in a prisoner account to the credit of the prisoner, and the value, combined value or aggregate value of such funds exceeds or will exceed ten thousand dollars, the superintendent, sheriff or municipal official shall also give written notice to the office.
Further, whenever the state or subdivision of the state makes payment or has an obligation to pay funds of a convicted person, as defined in subparagraph (ii) or (iii) of paragraph (c) of subdivision one of this section, and the value, combined value or aggregate value of such funds exceeds or will exceed ten thousand dollars, the state or subdivision of the state shall also give written notice to the office.
In all other instances where the payment or obligation to pay involves funds of a convicted person, as defined in subparagraph (ii) or (iii) of paragraph (c) of subdivision one of this section, and the value, combined value or aggregate value of such funds exceeds or will exceed ten thousand dollars, the convicted person who receives or will receive such funds, or the representative of such person as defined in subdivision six of section six hundred twenty-one of this article, shall give written notice to the office.
(c) The office, upon receipt of notice of a contract, an agreement to pay or payment of profits from a crime or funds of a convicted person pursuant to paragraph (a) or (b) of this subdivision, or upon receipt of notice of funds of a convicted person from the superintendent, sheriff or municipal official of the facility where the incarcerated individual or prisoner is confined pursuant to section one hundred sixteen or five hundred-c of the correction law, shall notify all known crime victims of the existence of such profits or funds at their last known address.
3. Notwithstanding any inconsistent provision of the estates, powers and trusts law or the civil practice law and rules with respect to the timely bringing of an action, any crime victim shall have the right to bring a civil action in a court of competent jurisdiction to recover money damages from a person convicted of a crime of which the crime victim is a victim, or the representative of that convicted person, within three years of the discovery of any profits from a crime or funds of a convicted person, as those terms are defined in this section. Notwithstanding any other provision of law to the contrary, a judgment obtained pursuant to this section shall not be subject to execution or enforcement against the first one thousand dollars deposited in an incarcerated individual account to the credit of the incarcerated individual pursuant to section one hundred sixteen of the correction law or in a prisoner account to the credit of the prisoner pursuant to section five hundred-c of the correction law. In addition, where the civil action involves funds of a convicted person and such funds were recovered by the convicted person pursuant to a judgment obtained in a civil action, a judgment obtained pursuant to this section may not be subject to execution or enforcement against a portion thereof in accordance with subdivision (k) of section fifty-two hundred five of the civil practice law and rules. If an action is filed pursuant to this subdivision after the expiration of all other applicable statutes of limitation, any other crime victims must file any action for damages as a result of the crime within three years of the actual discovery of such profits or funds, or within three years of actual notice received from or notice published by the office of such discovery, whichever is later.
4. Upon filing an action pursuant to subdivision three of this section, the crime victim shall give notice to the office of the filing by delivering a copy of the summons and complaint to the office. The crime victim may also give such notice to the office prior to filing the action so as to allow the office to apply for any appropriate provisional remedies which are otherwise authorized to be invoked prior to the commencement of an action.
5. Upon receipt of a copy of a summons and complaint, or upon receipt of notice from the crime victim prior to filing the action as provided in subdivision four of this section, the office shall immediately take such actions as are necessary to:
(a) notify all other known crime victims of the alleged existence of profits from a crime or funds of a convicted person by certified mail, return receipt requested, where the victims' names and addresses are known by the office;
(b) publish, at least once every six months for three years from the date it is initially notified by a victim, pursuant to subdivision four of this section, a legal notice in newspapers of general circulation in the county wherein the crime was committed and in counties contiguous to such county advising any crime victims of the existence of profits from a crime or funds of a convicted person. For crimes committed in a county located within a city having a population of one million or more, the notice shall be published in newspapers having general circulation in such city. The office may, in its discretion, provide for such additional notice as it deems necessary;
(c) avoid the wasting of the assets identified in the complaint as the newly discovered profits from a crime or as funds of a convicted person, in any manner consistent with subdivision six of this section.
6. The office, acting on behalf of the plaintiff and all other victims, shall have the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff.
(a) The provisional remedies of attachment, injunction, receivership and notice of pendency available to the plaintiff under the civil practice law and rules, shall also be available to the office in all actions under this section.
(b) On a motion for a provisional remedy, the moving party shall state whether any other provisional remedy has previously been sought in the same action against the same defendant. The court may require the moving party to elect between those remedies to which it would otherwise be entitled.
7. (a) (i) Whenever it appears that a person or entity has knowingly and willfully failed to give notice in violation of paragraph (a) or (b) of subdivision two of this section, other than the state, a subdivision of the state, or a person who is a superintendent, sheriff or municipal official required to give notice pursuant to this section or section one hundred sixteen or section five hundred-c of the correction law, the office shall be authorized to serve a notice of hearing upon the person or entity by personal service or by registered or certified mail. The notice shall contain the time, place and purpose of the hearing. In addition, the notice shall be accompanied by a petition alleging facts of an evidentiary character that support or tend to support that the person or entity, who shall be named therein as a respondent, knowingly and willfully failed to give notice in violation of paragraph (a) or (b) of subdivision two of this section. Service of the notice and petition shall take place at least fifteen days prior to the date of the hearing.
(ii) The director or any individual designated by the director, shall preside over the hearing, shall administer oaths, may issue subpoenas and shall not be bound by the rules of evidence or civil procedure, but his or her determination shall be based on a preponderance of the evidence. At the hearing, the burden of proof shall be on the office. The office shall produce witnesses and present evidence in support of the alleged violation, which may include relevant hearsay evidence. The respondent, who may appear personally at the hearing, shall have the right of counsel and may cross-examine witnesses and produce evidence and witnesses in his or her behalf, which may include relevant hearsay evidence. The issue of whether the person who received an alleged payment or obligation to pay committed the underlying crime shall not be re-litigated at the hearing. Where the alleged violation is the failure to give notice of a payment amount involving two or more payments the combined value or aggregate value of which exceeds ten thousand dollars, no violation shall be found unless it is shown that such payments were intentionally structured to conceal their character as funds of a convicted person, as defined in this section.
(iii) At the conclusion of the hearing, if the director or designated individual is not satisfied that there is a preponderance of evidence in support of a violation, the director or designated individual shall dismiss the petition. If the director or designated individual is satisfied that there is a preponderance of the evidence that the respondent committed one or more violations, the director or designated individual shall so find. Upon such a finding, the director or designated individual shall prepare a written statement, to be made available to the respondent and respondent's counsel, indicating the evidence relied on and the reasons for finding the violation.
(iv) The director shall adopt, promulgate, amend and repeal administrative rules and regulations governing the procedures to be followed with respect to hearings, including rules and regulations for the administrative appeal of a decision made pursuant to this paragraph, provided such rules and regulations are consistent with the provisions of this subdivision.
(b)(i) Whenever it is found pursuant to paragraph (a) of this subdivision that a respondent knowingly and willfully failed to give notice in violation of paragraph (a) or (b) of subdivision two of this section, the office shall impose an assessment of up to the amount of the payment or obligation to pay and a civil penalty of up to one thousand dollars or ten percent of the payment or obligation to pay, whichever is greater. If a respondent fails to pay the assessment and civil penalty imposed pursuant to this paragraph, the assessment and civil penalty may be recovered from the respondent by an action brought by the attorney general, upon the request of the office, in any court of competent jurisdiction. The office shall deposit the assessment in an escrow account pending the expiration of the three year statute of limitations authorized by subdivision three of this section to preserve such funds to satisfy a civil judgment in favor of a person who is a victim of a crime committed by the convicted person to whom such failure to give notice relates. The office shall pay the civil penalty to the state comptroller who shall deposit the money in the state treasury pursuant to section one hundred twenty-one of the state finance law to the credit of the criminal justice improvement account established by section ninety-seven-bb of the state finance law.
(ii) The office shall then notify any crime victim or crime victims, who may have a claim against the convicted person, of the existence of such moneys. Such notice shall instruct such person or persons that they may have a right to commence a civil action against the convicted person, as well as any other information deemed necessary by the office.
(iii) Upon a crime victim's presentation to the office of a civil judgment for damages incurred as a result of the crime, the office shall satisfy up to one hundred percent of that judgment, including costs and disbursements as taxed by the clerk of the court, with the escrowed fund obtained pursuant to this paragraph, but in no event shall the amount of all judgments, costs and disbursements satisfied from such escrowed funds exceed the amount in escrow. If more than one such crime victim indicates to the office that they intend to commence or have commenced a civil action against the convicted person, the office shall delay satisfying any judgment, costs and disbursements until the claims of all such crime victims are reduced to judgment. If the aggregate of all judgments, costs and disbursement obtained exceeds the amount of escrowed funds, the amount used to partially satisfy each judgment shall be reduced to a pro rata share.
(iv) After expiration of the three year statute of limitations period established in subdivision three of this section, the office shall review all judgments that have been satisfied from such escrowed funds. In the event no claim was filed or judgment obtained prior to the expiration of the three year statute of limitations, the office shall return the escrowed amount to the respondent. In the event a claim or claims are pending at the expiration of the statute of limitations, such funds shall remain escrowed until the final determination of all such claims to allow the office to satisfy any judgment which may be obtained by the crime victim. Upon the final determination of all such claims and the satisfaction of up to one hundred percent of such claims by the office, the office shall be authorized to impose an additional civil penalty of up to one thousand dollars or ten percent of the payment or obligation to pay, whichever is greater. Prior to imposing any such penalty, the office shall serve a notice upon the respondent by personal service or by registered or certified mail of the intent of the office to impose such penalty thirty days after the date of the notice and of the opportunity to submit documentation concerning the office's determination. After imposing and deducting any such additional civil penalty, the office shall distribute such remaining escrowed funds, if any, as follows: fifty percent to the state comptroller, who shall deposit the money in the state treasury pursuant to section one hundred twenty-one of the state finance law to the credit of the criminal justice improvement account established by section ninety-seven-bb of the state finance law; and fifty percent to the respondent.
(v) Notwithstanding any provision of law, an alleged failure by a convicted person to give notice under this section may not result in proceedings for an alleged violation of the conditions of probation, parole, conditional release, post release supervision or supervised release unless: one or more claims were made by a crime victim against the convicted person pursuant to this section, and the office imposes an assessment and/or penalty upon the convicted person pursuant to this section, and the convicted person fails to pay the total amount of the assessment and/or penalty within sixty days of the imposition of such assessment and/or penalty.
(vi) Records maintained by the office and proceedings by the office based thereon regarding a claim submitted by a victim or a claimant shall be deemed confidential, subject to the exceptions that appear in subdivision one of section six hundred thirty-three of this article.
§ 633. Confidentiality of records. 1. Records maintained by the office and proceedings by the office based thereon regarding a claim submitted by a victim or a claimant shall be deemed confidential with the following exceptions:
(a) requests for information based upon legitimate criminal justice purposes;
(b) judicial subpoenas;
(c) requests for information by the victim or claimant or his or her authorized representative;
(d) for purposes necessary and proper for the administration of this article.
2. All other records, including but not limited to, records maintained pursuant to sections six hundred thirty-one-a and six hundred thirty-two-a of this article and proceedings by the office based thereon shall be public record.
3. Any report or record obtained by the office, the confidentiality of which is protected by any other law or regulation, shall remain confidential subject to such law or regulation.
§ 634. Subrogation. 1. (a) Acceptance of an award made pursuant to this article shall subrogate the state, to the extent of such award, to any right or right of action accruing to the claimant or the victim to recover payments on account of losses resulting from the crime with respect to which the award is made. Upon the payment of an award, the office may, by writing, notify the claimant that such claimant has ninety days, or thirty days prior to the date of expiration of the applicable statute of limitations, whichever period is shorter, within which to commence an action against his assailant or any third party who, as a result of the crime, may be liable in damages to the claimant. If the claimant fails to commence an action within the time provided herein, such failure shall, after written notification by the office to the claimant, operate as an assignment of the claimant's cause of action against the assailant or such other third party to the state; provided, however, that should the claimant's cause of action be in an amount in excess of the office's award, such assignment shall be for only that portion of the cause of action which equals the amount of the award.
(b) The office of victim services shall review those claims that have been approved by the office and that have resulted in an award in excess of one thousand dollars for the purpose of identifying those causes of action that are likely to result in recovery of the state's payment to the victim. The office shall submit a list of these claims on a monthly basis to the attorney general with all necessary information relating to the case including whether the claimant's cause of action has been assigned to the office.
(c) The attorney general may commence an action against the defendant convicted of the crime or third party for money damages to the extent of the award paid, and the claimant shall retain a right of action, subject to defenses, to recover damages for the full amount of loss incurred by him as a result of the crime less the amount assigned to the state by operation of this subdivision. Notwithstanding any other provision of law, an action brought by the attorney general pursuant to this paragraph against the defendant convicted of the crime must be commenced within seven years of the crime or pursuant to the time frames authorized in subdivision three of section six hundred thirty-two-a of this article. A claimant who retains such right of action shall be permitted to intervene in any action brought pursuant to this subdivision by the attorney general. Any action brought by the attorney general may be compromised or settled provided the attorney general and the office find that such action is in the best interests of the state.
2. Acceptance of an award made pursuant to this article shall create a lien in favor of the state on the proceeds of any recovery from the person or persons liable for the injury or death giving rise to the award by the office, whether by judgment, settlement or otherwise, after the deduction of the reasonable and necessary expenditures, including attorney's fees, incurred in effecting such recovery, to the total amount of the award made by the office. Such lien shall attach to any moneys received or to be received by the claimant or victim on account of losses resulting from the crime. Should the claimant or victim secure a recovery from the person or persons liable for the injury or death giving rise to the award by the office, whether by judgment, settlement or otherwise, such claimant may, upon notice to the office, apply to the court in which the action was instituted, or to any court of competent jurisdiction if no action was instituted, for an order apportioning the reasonable and necessary expenditures, including attorney's fees, incurred in effecting such recovery. Such expenditures shall be equitably apportioned by the court between the claimant and the office. A copy of such lien shall be mailed to the clerk of the county within which the crime occurred and such clerk will file the copy in accordance with the duties of such clerk as set forth in section five hundred twenty-five of the county law. The amount of such lien may be compromised or settled by the office provided the office finds that such action is in the best interests of the state, or payment of the full amount of the lien to the state would cause undue hardship for the victim.
2-a. To the extent the office has made an award pursuant to this article for burial expenses, such amount shall be considered among reasonable funeral expenses of the decedent pursuant to subdivision one of section eighteen hundred eleven of the surrogate's court procedure act, to be recovered by the office, provided, however, that if a beneficiary of the victim's estate is also a person eligible to receive an award pursuant to section six hundred twenty-four of this article, the office shall recover such amounts pursuant to subdivision two of this section to the extent an award has been made to such person, prior to pursuing recovery from the victim's estate. Any recovery from a victim's estate under this subdivision shall reduce the state's lien under this section to the extent of the recovery by the office.
3. Any claimant who has received an award under this article, or his guardian, judicially appointed personal representative, or his estate, who brings an action for damages against the person or persons liable for the injury or death giving rise to an award by the office under this article shall give written notice to the office of the commencement of such action at the time such action is commenced. Such notice shall be served personally or by certified mail, return receipt requested.
4. The attorney general may intervene, as of right, in any such action on behalf of the state of New York for the purpose of recovering the subrogated interest due the state of New York under the provisions of this article.
5. The director shall adopt rules and regulations to carry out the provisions and purposes of this section.
6. The office shall compile information on the number of cases submitted to the attorney general, the number of actions instituted by the attorney general to recover payments made to crime victims, the dollar amount of recoveries made in such actions both on behalf of the state and any awards made to victims who intervene in such actions. The office shall include this information, and any recommendations to the governor and legislature to improve the collection of awards, in its annual report.
§ 635. Severability of provisions. If any provision of this article or the application thereof to any person or circumstances is held invalid, the remainder of this article and the application of such provision to other persons or circumstances shall not be affected thereby.
§ 636. Community violence intervention act. 1. Legislative findings. The legislature hereby finds and declares that gun violence and other forms of violence constitute a crisis that poses a serious threat to the health and quality of life of all residents of the state of New York. An epidemic of violence is tearing at the fabric of life in many urban areas. The legislature further finds that funds from the Victims of Crime Act should be used to support hospital based violence intervention programs and community based violence intervention programs.
2. Community violence intervention grants. The office shall dedicate ten percent or more of the total funding received per award cycle pursuant to the federal Victims of Crime Act of 1984 to support:
(a) "community-based violence intervention programs" which shall mean a violence intervention program that is: (i) a nonprofit organization; and (ii) provides intensive counseling, case management, and social services to individuals who are recovering from injuries resulting from violence or who were witness to acts of violence;
(b) "hospital-based violence intervention programs" which shall mean a violence intervention program that is: (i) operated by: (A) a public hospital; or (B) a nonprofit or government entity in collaboration with a public or not-for-profit hospital; and (ii) provides intensive counseling, case management, and social services to individuals who are recovering from injuries resulting from violence or who were witness to acts of violence.
3. The office shall promulgate guidance relating to community violence intervention for hospital-based violence intervention programs and community-based violence intervention programs.
(a) This guidance shall be designed to promote:
(i) alternative funding sources other than the state, including local government and private sources as well as funding from the federal Victims of Crime Act of 1984;
(ii) coordination of public and private efforts to aid individuals who are recovering from injuries resulting from violence or who were witnesses to acts of violence; and
(iii) long range development of services to victims of violent crimes in the community.
(b) This guidance shall also provide for:
(i) clearly defined and measurable objectives intended to demonstrate that a program is developed and evaluated through scientific research and data collection with measurable evidence of positive outcomes related to violence intervention;
(ii) a description of how the nonprofit organization proposes to use the funding to:
(A) establish or enhance community-based violence intervention programs;
(B) enhance coordination of existing violence intervention programs, if any, to minimize duplication of services; and
(C) plan for the collection of relevant data; and
(iii) outreach to the community and education and training of law enforcement and other criminal justice officials to the needs of victims of violent crimes in the community, to perpetrators of violent crimes and to witnesses of violent crimes involved in criminal prosecutions.
4. To the extent practicable, the office shall make efforts to inform community-based violence intervention programs and hospital-based intervention programs about anticipated awards.
Section 620. Declaration of policy and legislative intent.
621. Definitions.
622. Office of victim services.
623. Powers and duties of the office.
624. Eligibility.
625. Filing of claims.
625-a. Information relative to claims; application forms.
625-b. Standardized victim notification and verification procedures for police officers.
626. Out-of-pocket loss; definition.
627. Determination of claims.
629. Judicial review.
630. Emergency awards.
631. Awards.
631-a. Crime victim service programs.
632. Manner of payment.
632-a. Crime victims.
633. Confidentiality of records.
634. Subrogation.
635. Severability of provisions.
636. Community violence intervention act.
§ 620. Declaration of policy and legislative intent. The legislature recognizes that many innocent persons suffer personal physical injury or death as a result of criminal acts. Such persons or their dependents may thereby suffer disability, incur financial hardships, or become dependent upon public assistance. The legislature finds and determines that there is a need for government financial assistance for such victims of crime. Accordingly, it is the legislature's intent that aid, care and support be provided by the state, as a matter of grace, for such victims of crime.
§ 621. Definitions. For the purposes of this article:
1. "Office" shall mean the office of victim services.
2. "Claimant" shall mean the person filing a claim pursuant to this article.
3. "Crime" shall mean (a) an act committed in New York state which would, if committed by a mentally competent criminally responsible adult, who has no legal exemption or defense, constitute a crime as defined in and proscribed by law; or
(b) an act committed outside the state of New York against a resident of the state of New York which would be compensable had it occurred within the state of New York and which occurred in a state which does not have an eligible crime victim compensation program as such term is defined in the federal victims of crime act of 1984; or
(c) an act of terrorism, as defined in section 2331 of title 18, United States Code, committed outside of the United States against a resident of New York state.
4. "Family", when used with reference to a person, shall mean (a) any person related to such person within the third degree of consanguinity or affinity, (b) any person maintaining a sexual relationship with such person, or (c) any person residing in the same household with such person.
5. "Victim" shall mean (a) a person who suffers personal physical injury as a direct result of a crime; (b) a person who is the victim of either the crime of (1) unlawful imprisonment in the first degree as defined in section 135.10 of the penal law, (2) kidnapping in the second degree as defined in section 135.20 of the penal law, (3) kidnapping in the first degree as defined in section 135.25 of the penal law, (4) menacing in the first degree as defined in section 120.13 of the penal law, (5) criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, (6) harassment in the second degree as defined in section 240.26 of the penal law, (7) harassment in the first degree as defined in section 240.25 of the penal law, (8) aggravated harassment in the second degree as defined in subdivision three or five of section 240.30 of the penal law, (9) aggravated harassment in the first degree as defined in subdivision two of section 240.31 of the penal law, (10) criminal contempt in the first degree as defined in subdivision (b) or subdivision (c) of section 215.51 of the penal law, (11) stalking in the fourth, third, second or first degree as defined in sections 120.45, 120.50, 120.55 and 120.60 of the penal law, (12) labor trafficking as defined in section 135.35 of the penal law, (13) sex trafficking as defined in section 230.34 of the penal law; or (14) sex trafficking of a child as defined in section 230.34-a of the penal law; a vulnerable elderly person or an incompetent or physically disabled person as defined in section 260.31 of the penal law who incurs a loss of savings as defined in subdivision twenty-four of this section; or a person who has had a frivolous lawsuit filed against them.
6. "Representative" shall mean one who represents or stands in the place of another person, including but not limited to an agent, an assignee, an attorney, a guardian, a committee, a conservator, a partner, a receiver, an administrator, an executor or an heir of another person, or a parent of a minor.
7. "Good samaritan" shall mean a person who, other than a law enforcement officer, acts in good faith (a) to apprehend a person who has committed a crime in his presence or who has in fact committed a felony, (b) to prevent a crime or an attempted crime from occurring, or (c) to aid a law enforcement officer in effecting an arrest.
8. "Essential personal property" shall mean articles of personal property necessary and essential to the health, welfare or safety of the victim.
9. "Elderly victim" shall mean a person sixty years of age or older who suffers loss, or damage as a direct result of a crime.
10. "Disabled victim" shall mean a person who has (a) physical, mental or medical impairment from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment.
11. For purposes of this article "child victim" shall mean a person less than eighteen years of age who suffers physical, mental or emotional injury, or loss or damage, as a direct result of a crime or any violation listed in subdivision twelve of section six hundred thirty-one of this article, or as a result of witnessing a crime or any violation listed in subdivision twelve of section six hundred thirty-one of this article.
12. "Frivolous lawsuit" shall mean a lawsuit brought by the individual who committed a crime against the victim of the crime, found to be frivolous, meritless and commenced to harass, intimidate or menace the victim by a court and costs were imposed upon the plaintiff pursuant to section eighty-three hundred three-a of the civil practice law and rules.
13. "Crime scene cleanup" shall mean removing, or attempting to remove from the crime scene, blood, dirt, stains, debris, odors, or other impurities caused by the crime or the processing of the crime scene and the repair or replacement of permanent fixtures and floor coverings, soiled, damaged, or rendered unusable or uncleanable by the crime, the processing of the crime scene, or by being taken into evidence.
14. "Securing a crime scene" shall mean taking immediate, emergency steps to return the residence where the crime occurred to the level of safety present prior to the crime. It shall include, but not be limited to, the repair or replacement of doors, windows, screens and locks or other points of entry damaged or rendered unusable by the crime.
15. "Livery" shall mean a for-hire vehicle duly licensed by the appropriate local licensing authority, designed to carry no more than five passengers for direct cash payment by such passenger and which is affiliated with a livery car base. The term "livery" shall not include a vehicle driven by a "black car operator", as defined in section one hundred sixty-cc of this chapter.
16. "Livery car base" shall mean a central facility, wherever located, that dispatches the livery operator to both pick-up and discharge passengers in the state.
17. "Livery operator" shall mean the registered owner of a livery, or a driver designated by such registered owner to operate the registered owner's livery as the registered owner's authorized designee, whose status as a livery operator victim arose out of and in the course of providing services while affiliated with a livery car base. The term "livery operator" shall not include a "black car operator", as defined in section one hundred sixty-cc of this chapter.
18. "Livery operator victim" shall mean a livery operator homicide victim or a livery operator assault victim.
19. "Livery operator assault victim" shall mean a livery operator who is the victim of a violent felony offense, as defined in subdivision one of section 70.02 of the penal law, which offense directly results in a serious physical injury, as defined in subdivision ten of section 10.00 of the penal law.
20. "Livery operator homicide victim" shall mean a livery operator who is the victim of a homicide, as defined in article one hundred twenty-five of the penal law.
21. "Local licensing authority" shall mean the governmental agency in the state, if any, that is authorized to license a livery and/or a livery car base.
22. "Financial counselling" shall mean financial services provided by an experienced financial counsellor or adviser which may include, but are not limited to: analysis of a victim's financial situation such as income producing capacity and crime related financial obligations, assistance with restructuring budget and debt, assistance in accessing insurance, public assistance and other benefits, assistance in completing the financial aspects of victim impact statements, and assistance in settling estates and handling guardianship matters.
23. "Relocation expenses" shall mean the cost of relocating a crime victim, when relocation is necessary for the health or safety of the victim. An award for relocation expenses of a victim shall include the reasonable cost of moving and transportation expenses for (a) the victim, which may include the relocation expenses of their spouse and any other person dependent for his or her principal support upon the victim or spouse who lives in the same residence as the victim, or (b) if the victim is a child victim eligible for such an award pursuant to this article, the child victim, which may include the relocation expenses of their parent, stepparent, guardian and any other person dependent for his or her principal support upon such parent, stepparent, and guardian who lives in the same residence as the child victim.
24. "Loss of savings" shall mean the result of any act or series of acts of larceny as defined in article one hundred fifty-five of the penal law, indicated by a criminal justice agency as defined in subdivision one of section six hundred thirty-one of this article, in which cash is stolen from a vulnerable elderly person or an incompetent or physically disabled person as defined in section 260.31 of the penal law.
* 25. "Domestic partner" shall mean a person who, with respect to another person:
(a) is formally a party in a domestic partnership or similar relationship with the other person, entered into pursuant to the laws of the United States or of any state, local or foreign jurisdiction, or registered as the domestic partner of the other person with any registry maintained by the employer of either party or any state, municipality, or foreign jurisdiction; or
(b) is formally recognized as a beneficiary or covered person under the other person's employment benefits or health insurance; or
(c) is dependent or mutually interdependent on the other person for support, as evidenced by the totality of the circumstances indicating a mutual intent to be a domestic partner including but not limited to: common ownership or joint leasing of real or personal property; common householding, shared income or shared expenses; children in common; signs of intent to marry or become a domestic partner under paragraph (a) or (b) of this subdivision; or the length of the personal relationship of the persons.
Each party to a domestic partnership shall be considered to be the domestic partner of the other party. "Domestic partner" shall not include a person who is related to the other person by blood in a manner that would bar marriage to the other person in New York state. "Domestic partner" also shall not include any person who is less than eighteen years of age or who is the adopted child of the other person or who is related by blood in a manner that would bar marriage in New York state to a person who is the lawful spouse of the other person.
* NB There are 2 sb 25's
* 25. "Employment-related transportation expenses" shall mean the costs in excess of those normally expended by a victim to get to and from their places of employment, due to the personal physical injuries sustained as a direct result of the crime upon which the claim is based. If required by law, such places of employment shall be reported to the appropriate taxing authority. Such costs shall not include the purchase, lease or rental of a vehicle.
* NB There are 2 sb 25's
§ 622. Office of victim services. There is hereby created in the executive department the office of victim services, hereinafter in this article referred to as the "office". The office shall be headed by a director, who shall be appointed by the governor for a term of three years. The director shall coordinate and recommend policy relating to the provision of services to crime victims. The director shall appoint staff and perform such other functions to ensure the efficient operation of the office within the amounts made available therefor by appropriation.
§ 623. Powers and duties of the office. The office shall have the following powers and duties:
1. To establish and maintain a principal office and such other offices within the state as it may deem necessary.
2. To appoint a secretary, counsel, clerks and such other employees and agents as it may deem necessary, fix their compensation within the limitations provided by law, and prescribe their duties.
3. To adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of this article, including rules for the determination of claims, rules for the approval of attorneys' fees for representation before the office and/or before the appellate division upon judicial review as provided for in section six hundred twenty-nine of this article, rules for the definition and reasonable reimbursement of individual items of essential personal property considered essential and necessary for the victim's welfare pursuant to section six hundred thirty-one of this article, and rules for the authorization of qualified persons to assist claimants in the preparation of claims for presentation to the office.
4. To request from the division of state police, from county or municipal police departments and agencies and from any other state or municipal department or agency, or public authority, and the same are hereby authorized to provide, such assistance and data as will enable the office to carry out its functions and duties.
5. To hear and determine all claims for awards filed with the office pursuant to this article, and to reinvestigate or reopen cases as necessary.
6. To direct medical examination of victims.
7. To hold hearings, administer oaths or affirmations, examine any person under oath or affirmation and to issue subpoenas requiring the attendance and giving of testimony of witnesses and require the production of any books, papers, documentary or other evidence. The powers provided in this subdivision may be delegated by the director to any member or employee of the office. A subpoena issued under this subdivision shall be regulated by the civil practice law and rules.
8. To take or cause to be taken affidavits or depositions within or without the state.
9. To establish and maintain a special investigative unit to expedite processing of claims by senior citizens and special emergency situations, and to promote, in consultation with the office for the aging, the establishment of a volunteer program of home visitation to elderly and invalid victims of violent crime.
10. To advise and assist the governor in developing policies designed to recognize the legitimate rights, needs and interests of crime victims.
11. To coordinate state programs and activities relating to crime victims.
12. To cooperate with and assist political subdivisions of the state and not-for-profit organizations in the development of local programs for crime victims.
13. To study the operation of laws and procedures affecting crime victims and recommend to the governor and legislature proposals to improve the administration and effectiveness of such laws.
14. To establish an advisory council to assist in formulation of policies on the problems of crime victims and to provide recommendations to the director to improve the delivery of services to victims by the office.
15. To work with national associations, statewide coalitions, regional coalitions, victim service providers, and other advocates to address and advance the rights and interests of crime victims of the state.
16. To promote and conduct studies, research, analyses and investigations of matters affecting the interests of crime victims.
17. To coordinate training opportunities for crime victim advocates and service providers.
18. To serve as a clearinghouse for information relating to crime victims' problems and programs.
19. To accept, with the approval of the governor, as agent of the state, any grant including federal grants, any fines or penalties imposed pursuant to section three hundred forty-one or three hundred forty-two-a of the general business law and made payable to the office pursuant to section three hundred forty-seven-a of such law, or any gift for the purposes of this article. Any monies so received may be expended by the office to effectuate any purpose of this article, subject to the applicable provisions of the state finance law.
20. To render each year to the governor and to the legislature, on or before December first of each year, a written report on the office's activities including, but not limited to, specific information on each of the subdivisions of this section. Such report shall also include but not be limited to information regarding crime victim service programs, including:
(1) the programs funded by the office;
(2) other sources of funding for crime victims service programs;
(3) an assessment of the adequacy of the current level of appropriation to the office to meet the reasonable needs of crime victims service programs for funding under section six hundred thirty-one-a of this article; and
(4) an estimate of the reasonable needs of programs in the next fiscal year.
21. To render biennially to the governor and the legislature a written report on the manner in which the rights, needs and interests of crime victims are being addressed by the state's criminal justice system to include, but not be limited to:
(a) Information transmitted by the state office of probation and correctional alternatives under subdivision five of section 390.30 of the criminal procedure law and subdivision seven of section 351.1 of the family court act which the board shall compile, review and make recommendations on how to promote the use of restitution and encourage its enforcement.
(b) Information relating to the implementation of and compliance with article twenty-three of this chapter by the criminal justice agencies and the "crime victim-related agencies" of the state.
22. To make grants to local crime victim service programs and carry out related duties under section six hundred thirty-one-a of this article.
23. To delegate to specified employees of the office the power to disallow claims under circumstances where regulations of the office provide for disallowance without prejudice to the reopening of claims.
§ 624. Eligibility. 1. Except as provided in subdivision two of this section, the following persons shall be eligible for awards pursuant to this article:
(a) a victim of a crime;
(b) a surviving spouse, domestic partner, grandparent, parent, stepparent, guardian, brother, sister, stepbrother, stepsister, child, stepchild or grandchild of a victim of a crime who died as a direct result of such crime;
(c) any other person dependent for his principal support upon a victim of a crime who died as a direct result of such crime;
(d) any person or business represented by a person who has paid for or incurred the burial expenses of a victim who died as a direct result of such crime, except such person shall not be eligible to receive an award for other than burial expenses unless otherwise eligible under paragraph (a), (b) or (c) of this subdivision;
(e) an elderly victim of a crime;
(f) a disabled victim of a crime;
(g) a child victim of a crime;
(h) a parent, stepparent, grandparent, guardian, brother, sister, stepbrother or stepsister of a child victim of a crime;
(i) a surviving spouse of a crime victim who died from causes not directly related to the crime when such victim died prior to filing a claim with the office or subsequent to filing a claim but prior to the rendering of a decision by the office. Such award shall be limited to out-of-pocket loss incurred as a direct result of the crime; and
(j) a spouse, child or stepchild of a victim of a crime who has sustained personal physical injury as a direct result of a crime.
(k) a surviving spouse, grandparent, parent, stepparent, guardian, brother, sister, stepbrother, stepsister, child, stepchild, or grandchild of a victim of a crime who died as a direct result of such crime and where such crime occurred in the residence shared by such family member or members and the victim.
2. A person who is criminally responsible for the crime upon which a claim is based or an accomplice of such person shall not be eligible to receive an award with respect to such claim. A member of the family of a person criminally responsible for the crime upon which a claim is based or a member of the family of an accomplice of such person, shall be eligible to receive an award, unless the office determines pursuant to regulations promulgated to carry out the provisions and purposes of this article, that the person criminally responsible will receive substantial economic benefit or unjust enrichment from the compensation. In such circumstances the award may be reduced or structured in such way as to remove the substantial economic benefit or unjust enrichment to such person or the claim may be denied.
§ 625. Filing of claims. 1. A claim may be filed by a person eligible to receive an award, as provided in section six hundred twenty-four of this article, or, if such person is under the age of eighteen years, an incompetent, or a conservatee, by his relative, guardian, committee, conservator, or attorney.
2. A claim must be filed by the claimant not later than one year after the occurrence or discovery of the crime upon which such claim is based, one year after a court finds a lawsuit to be frivolous, or not later than one year after the death of the victim, provided, however, that upon good cause shown, the office may extend the time for filing. The office shall extend the time for filing where the claimant received no notice pursuant to section six hundred twenty-five-a of this article and had no knowledge of eligibility pursuant to section six hundred twenty-four of this article.
3. Claims shall be filed in person, by mail or electronically, in such manner as the office may prescribe. The office shall accept for filing all claims submitted by persons eligible under subdivision one of this section and alleging the jurisdictional requirements set forth in this article and meeting the requirements as to form in the rules and regulations promulgated to carry out the provisions and purposes of this article.
4. Upon filing of a claim pursuant to this article, the office shall promptly notify the district attorney of the county wherein the crime is alleged to have occurred. If, within ten days after such notification, such district attorney advises the office that a criminal prosecution is pending upon the same alleged crime and requests that action by the office be deferred, the office shall defer all proceedings under this article until such time as such criminal prosecution has been concluded and shall so notify such district attorney and the claimant. When such criminal prosecution has been concluded, such district attorney shall promptly so notify the office. Nothing in this section shall limit the authority of the office to grant emergency awards pursuant to section six hundred thirty of this article.
§ 625-a. Information relative to claims; application forms. 1. Every police station, precinct house, any appropriate location where a crime may be reported and any location required by the rules and regulations of the office shall have available informative booklets, pamphlets and other pertinent written information, including information cards, to be supplied by the office, relating to the availability of crime victims compensation including all necessary application blanks required to be filed with the office and shall display prominently posters giving notification of the existence and general provisions of this article, those provisions of the penal law that prohibit the intimidation of crime victims and the location of the nearest crime victim service program. The office may issue guidelines for the location of such display and shall provide posters, application forms, information cards and general information. Every victim who reports a crime in any manner whatsoever shall be given notice about the rights of crime victims and the existence of all relevant local victim's assistance programs and services pursuant to section six hundred twenty-five-b of this article, and supplied by the person receiving the report with information, application blanks, and information cards which shall clearly state: (a) that crime victims may be eligible for state compensation benefits; (b) the address and phone number of the office; (c) that police and district attorneys can help protect victims against harassment and intimidation; (d) the addresses and phone numbers of local victim service programs, where appropriate, or space for inserting that information; or (e) any other information the office deems appropriate. Such cards shall be designed by the office in consultation with local police, and shall be printed and distributed by the office. The office shall develop a system for distributing a sufficient supply of the information cards referred to in this subdivision, to all the appropriate designated locations, which shall include a schedule for meeting that requirement.
1-a. Every general hospital established under the laws of this state, which maintains facilities for providing out-patient emergency medical care, shall display prominently in its emergency room posters giving notification of the existence and general provisions of this chapter. The board may issue guidelines for the location of such display and shall provide posters, application forms and general information regarding the provision of this chapter to each such hospital.
2. No cause of action of whatever nature or kind arising out of a failure to give or receive the notice required by this section shall accrue to any person against the state or any of its agencies or local subdivisions, or, any police officer or other agent, servant or employee thereof, or any hospital or agents or employees thereof, nor shall any such failure be deemed or construed to affect or alter any time limitation or other requirement contained in this article for the filing or payment of a claim hereunder.
§ 625-b. Standardized victim notification and verification procedures for police officers. 1. The commissioner of the division of criminal justice services in cooperation with the office shall develop and implement a standardized procedure to be used by police officers, county sheriffs' departments and state police officers whereby victims of crime are notified about the rights of crime victims and the existence of programs designed to assist crime victims.
2. In establishing a victims assistance notification procedure, consideration shall be given to (a) developing a uniform method of informing victims of crime of their rights and services available, (b) including notification as part of a routine task performed in the course of law enforcement duties, and (c) documenting a victim's receipt of such notice.
3. All state or municipal printed forms for a police primary investigation report shall include a space to indicate that the victim did or did not receive information on victim's rights, office of victim services assistance and relevant local assistance pursuant to subdivision one of section six hundred twenty-five-a of this article.
§ 626. Out-of-pocket loss; definition. 1. Out-of-pocket loss shall mean unreimbursed and unreimbursable expenses or indebtedness reasonably incurred for medical care or other services necessary as a result of the injury upon which such claim is based, including such expenses incurred as a result of the exacerbation of a pre-existing disability or condition directly resulting from the crime or causally related to the crime. Such expenses or indebtedness shall include the cost of counseling for the eligible spouse, domestic partner, grandparents, parents, stepparents, guardians, brothers, sisters, stepbrothers, stepsisters, children, stepchildren or grandchildren of a homicide victim, and crime victims who have sustained a personal physical injury as the direct result of a crime and the spouse, children or stepchildren of such physically injured victim. For the purposes of this subdivision, the victim of a sex offense as defined in article one hundred thirty of the penal law is presumed to have suffered physical injury. Such counseling may be provided by local victim service programs, where available. It shall also include the cost of residing at or utilizing services provided by shelters for battered spouses and children who are eligible pursuant to subdivision two of section six hundred twenty-four of this article, and the cost of reasonable attorneys' fees for representation before the office and/or before the appellate division upon judicial review not to exceed one thousand dollars.
2. Out-of-pocket loss shall also include the cost of counseling for a child victim and the parent, stepparent, grandparent, guardian, brother, sister, stepbrother or stepsister of such victim, pursuant to regulations promulgated to carry out the provisions and purposes of this article.
3. Notwithstanding any inconsistent provision of this article, and without regard to the financial difficulty of the claimant, out-of-pocket loss also shall include the cost of unreimbursed and unreimbursable counseling expense or indebtedness reasonably incurred by relief workers who worked at the World Trade Center site in the immediate aftermath of the September eleventh, two thousand one terrorist attacks, or incurred by individuals who personally witnessed such attacks, where such counseling expense or indebtedness is incurred as a direct result of such work or of the witnessing of such attacks, and is incurred on or before December thirty-first, two thousand seven.
§ 627. Determination of claims. 1. The office shall determine claims in accordance with rules and regulations promulgated by the director. Such rules and regulations must provide for:
(a) written notification to an applying victim of their right to representation by counsel, as well as their potential eligibility for an award of attorney's fees pursuant to subdivision one of section six hundred twenty-six of this article;
(b) administrative procedures regarding the intake and initial processing of claims, including mandatory timelines for the initiation of investigation of a properly filed claim;
(c) the investigation and determination of claims regardless of whether the alleged criminal has been apprehended or prosecuted for or convicted of any crime based upon the same incident, or has been acquitted, or found not guilty of the crime in question owing to criminal irresponsibility or other legal exemption;
(d) the rebuttable presumption that a child reported missing for a time period exceeding seven days is a victim of a crime;
(e) the generation of a written decision for each properly filed claim, and written notice to the claimant of the written decision and their right to a copy of such a decision, as well as any rights to appeal that the claimant may have of the decision and a projected date of payment in the case of an award to the claimant;
(f) expedited determination of claims with respect to a livery operator within thirty days of the date upon which the claim was accepted for filing, as well as standards for awards of loss of earnings or support granted pursuant to rules and regulations promulgated in accordance with the provisions of this subdivision and subdivision three of section six hundred thirty-one of this article. Each award for loss of earnings pursuant to rules and regulations promulgated in accordance with this subdivision made with respect to a claim involving a livery operator assault victim shall be for such period of time as the office determines that the livery operator assault victim is unable to work and has lost earnings as a result of such assault, in an amount not to exceed twenty thousand dollars. Such award shall be distributed in increments of five hundred dollars per week. Each award for loss of support pursuant to rules and regulations promulgated in accordance with this subdivision made with respect to a claim involving a livery operator homicide victim shall be in the amount of twenty thousand dollars, distributed in increments of five hundred dollars per week; and
(g) provisions for any claimant to submit an additional claim for any loss of earnings or support in excess of the amount awarded pursuant to rules and regulations in accordance with paragraph (f) of this subdivision, or an additional claim for any other award pursuant to rules and regulations promulgated in accordance with this article, in each case pursuant to and in accordance with the other provisions of this article or any rules and regulations promulgated in accordance thereof and subject to any applicable maximum award limitations contained in this article.
2. The claimant may, within thirty days after receipt of the decision of the office regarding a claim, make an application in writing to the director of the office for reconsideration of such decision. The director, or his or her designee, shall consider such applications in accordance with rules and regulations promulgated by the director and may affirm or modify the decision. The decision of the director, or his or her designee, shall become the final determination of the office regarding the claim.
§ 629. Judicial review. 1. Within fifteen days after receipt of the copy of the report containing the final decision of the office, the comptroller shall, if in his judgment the award is illegal or excessive, notify the office of his conclusion, state the reasons for that conclusion, and provide specific recommendations for modification. Upon receiving such notification, the office shall have fifteen days within which to review and either modify or re-affirm its award. If after such modification or reaffirmation the comptroller continues to adjudge the award to be illegal or excessive, he may within fifteen days after receipt of such modification or reaffirmation, commence a proceeding in the appellate division of the supreme court, third department, to review the decision of the office. Such proceeding shall be heard in a summary manner and shall have precedence over all other civil cases in such court. Any claimant aggrieved by a final decision of the office may commence a proceeding to review that decision pursuant to article seventy-eight of the civil practice law and rules.
2. Any such proceeding shall be commenced in accordance with the civil practice law and rules.
§ 630. Emergency awards. 1. Notwithstanding the provisions of section six hundred twenty-seven of this article, if it appears to the office, that such claim is one with respect to which an award probably will be made, and undue hardship will result to the claimant if immediate payment is not made, the office may make one or more emergency awards to the claimant pending a final decision of the office or payment of an award in the case, provided, however, that the total amount of such emergency awards shall not exceed twenty-five hundred dollars. The amount of such emergency awards shall be deducted from any final award made to the claimant, and the excess of the amount of any such emergency award over the amount of the final award, or the full amount of any emergency awards if no final award is made, shall be repaid by the claimant to the office.
2. Notwithstanding the provisions of subdivision one of this section, if the crime upon which the claim is based resulted in the death of the victim, and it appears to the office that such claim is one with respect to which an award probably will be made, and undue hardship will result to the claimant if immediate payment is not made, the office may make one or more emergency awards to the claimant for reasonable burial expenses pending a final decision of the office or payment of an award in the case; provided, however, that the total amount of an emergency award or awards for reasonable burial expenses shall not exceed three thousand dollars. The amount of such emergency award or awards shall be deducted from any final award made to the claimant, and the excess of the amount of any such award or awards over the amount of the final award, of the full amount of an emergency award or awards if no final award is made, shall be repaid by the claimant to the office.
§ 631. Awards. 1. No award shall be made unless the office finds that (a) a crime was committed, (b) such crime directly resulted in personal physical injury to or the exacerbation of a preexisting disability, or condition, or death of, the victim, and (c) criminal justice agency records show that such crime was promptly reported to the proper authorities; and in no case may an award be made where the criminal justice agency records show that such report was made more than one week after the occurrence of such crime unless the office, for good cause shown, finds the delay to have been justified. Notwithstanding the foregoing provisions of this subdivision, in cases involving an alleged sex offense as contained in article one hundred thirty of the penal law or incest as defined in section 255.25, 255.26 or 255.27 of the penal law or labor trafficking as defined in section 135.35 of the penal law or sex trafficking as defined in sections 230.34 and 230.34-a of the penal law or an offense chargeable as a family offense as described in section eight hundred twelve of the family court act or section 530.11 of the criminal procedure law, the criminal justice agency report need only be made within a reasonable time considering all the circumstances, including the victim's physical, emotional and mental condition and family situation. For the purposes of this subdivision, "criminal justice agency" shall include, but not be limited to, a police department, a district attorney's office, and any other governmental agency having responsibility for the enforcement of the criminal laws of the state provided, however, that in cases involving such sex offense or family offense a criminal justice agency shall also mean a family court, a governmental agency responsible for child and/or adult protective services pursuant to title six of article six of the social services law and/or title one of article nine-B of the social services law, and any medical facility established under the laws of the state that provides a forensic physical examination for victims of rape and sexual assault.
1-a. No award shall be made for a frivolous lawsuit unless the office finds that the victim has been awarded costs pursuant to section eighty-three hundred three-a of the civil practice law and rules and the individual responsible for the payment of costs is unable to pay such costs provided, however, that in no event shall the amount of such costs exceed two thousand five hundred dollars.
2. Any award made pursuant to this article shall be in an amount not exceeding out-of-pocket expenses, including indebtedness reasonably incurred for medical or other services necessary as a result of the injury upon which the claim is based; loss of earnings or support resulting from such injury not to exceed thirty thousand dollars; loss of savings not to exceed thirty thousand dollars; burial expenses not exceeding six thousand dollars of a victim who died on or after November first, nineteen ninety-six as a direct result of a crime; the costs of crime scene cleanup and securing of a crime scene not exceeding twenty-five hundred dollars; reasonable relocation expenses not exceeding twenty-five hundred dollars; reasonable employment-related transportation expenses, not exceeding twenty-five hundred dollars and the unreimbursed cost of repair or replacement of articles of essential personal property lost, damaged or destroyed as a direct result of the crime. An award for loss of earnings shall include earnings lost by a parent or guardian as a result of the hospitalization of a child victim under age eighteen for injuries sustained as a direct result of a crime. In addition to the medical or other services necessary as a result of the injury upon which the claim is based, an award may be made for rehabilitative occupational training for the purpose of job retraining or similar employment-oriented rehabilitative services based upon the claimant's medical and employment history. For the purpose of this subdivision, rehabilitative occupational training shall include but not be limited to educational training and expenses. An award for rehabilitative occupational training may be made to a victim, or to a family member of a victim where necessary as a direct result of a crime. An award for employment-related transportation expenses shall be limited to the time period necessary due to the personal physical injuries sustained as a direct result of the crime upon which the claim is based, as determined by the medical information collected during the investigation of the claim.
3. Any award made for loss of earnings or support shall, unless reduced pursuant to other provisions of this article, be in an amount equal to the actual loss sustained, provided, however, that no such award shall exceed six hundred dollars for each week of lost earnings or support. Awards with respect to livery operator victims pursuant to paragraphs (f) and (g) of subdivision one of section six hundred twenty-seven of this article shall be granted in the amount and in the manner provided therein. The aggregate award for all such losses pursuant to this subdivision, including any awards made pursuant to paragraphs (f) and (g) of subdivision one of section six hundred twenty-seven of this article, shall not exceed thirty thousand dollars. If there are two or more persons entitled to an award as a result of the death of a person which is the direct result of a crime, the award shall be apportioned by the office among the claimants.
3-a. Any award made for loss of savings shall, unless reduced pursuant to other provisions of this article, be in an amount equal to the actual loss sustained.
4. Any award made pursuant to this article shall be reduced by the amount of any payments received or to be received by the claimant as a result of the injury (a) from or on behalf of the person who committed the crime, (b) under insurance programs mandated by law, (c) from public funds, (d) under any contract of insurance wherein the claimant is the insured or beneficiary, (e) as an emergency award pursuant to section six hundred thirty of this article. Notwithstanding the foregoing, where the person injured is a livery operator victim, because undue hardship may result to the claimant if immediate payment is not made, any award pursuant to paragraphs (f) and (g) of subdivision one of section six hundred twenty-seven of this article shall be granted without reduction for workers' compensation benefits to be received, if any.
5. (a) In determining the amount of an award, the office shall determine whether, because of his conduct, the victim of such crime contributed to the infliction of his injury, and the office shall reduce the amount of the award or reject the claim altogether, in accordance with such determination.
(b) Notwithstanding the provisions of paragraph (a) of this subdivision, the office shall disregard for this purpose the responsibility of the victim for his own injury where the record shows that the person injured was acting as a good samaritan, as defined in this article.
(c) Notwithstanding any inconsistent provision of this article, where the person injured acted as a good samaritan, the office may, without regard to the financial difficulty of the claimant, make an award for out-of-pocket losses. Such award may also include compensation for any loss of property up to five thousand dollars suffered by the victim during the course of his actions as a good samaritan.
(d) Notwithstanding any inconsistent provision of this article, where a person acted as a good samaritan, and was killed as a direct result of the crime, the office may, without regard to the financial difficulty of the claimant, make a lump sum award to such claimant for actual loss of support not to exceed thirty thousand dollars.
(e) Notwithstanding any inconsistent provision of this article, where a police officer or firefighter, both paid and volunteer, dies from injuries received in the line of duty as a direct result of a crime, the office may, without regard to the financial difficulty of the claimant, make an award for the unreimbursed counseling expenses of the eligible spouse, domestic partner, parents, brothers, sisters or children of such victim, and/or the reasonable burial expenses incurred by the claimant.
(f) Notwithstanding the provisions of paragraph (a) of this subdivision, the office shall disregard for this purpose the responsibility of the victim for his or her own loss of savings.
(g) Notwithstanding the provisions of paragraph (a) of this subdivision, if the crime upon which the claim is based resulted in the death of the victim, the office shall determine whether, because of his or her conduct, the victim of such crime contributed to the infliction of his or her injury, and the office may reduce the amount of the award by no more than fifty percent, in accordance with such determination.
6. (a) Claims may be approved only if the office finds that unless the claimant's award is approved he or she will suffer financial difficulty. However, no finding of financial difficulty is required for a claim for an emergency award or an award less than ten thousand dollars. In determining financial difficulty, the office shall consider all relevant factors, including but not limited to:
(1) the number of claimant's dependents;
(2) reasonable living expenses of the claimant and his family;
(3) any special health, rehabilitative or educational needs of the claimant and his dependents;
(4) the claimant's employment situation including income and potential earning capacity;
(5) the claimant's net financial resources after authorized deduction as provided in paragraphs (b) and (c) of this subdivision;
(6) whether claimant's financial resources will become exhausted during his lifetime; and
(7) the nature and the amount of claimant's total debt and liabilities, including the amount of debt incurred or to be incurred to pay for losses and expenses of the crime, and the extent to which claimant's essential assets will have to be liquidated.
(b) Claimant's net financial resources do not include the present value of future earnings, and shall be determined by the office by deducting from his total financial resources the value, within reasonable limits, of the following items:
(1) a homestead, not exceeding five hundred thousand dollars, or a total of ten years' rent for a renter;
(2) personal property consisting of clothing and strictly personal effects;
(3) household furniture, appliances and equipment;
(4) tools and equipment necessary for the claimant's trade, occupation or business;
(5) a family automobile;
(6) life insurance, except in death claims; and
(7) retirement, education and health plans or contributions to a retirement or pension program including but not limited to contributions to: (i) employee profit sharing plans, (ii) employee money purchase plans, (iii) 401 (k) plans, (iv) simplified employee pensions (SEP), (v) individual retirement accounts (IRA), (vi) 403 (b) plans, (vii) 457 plans, (viii) Keogh plans, (self employed), and (ix) any other plan or account for which contributions are made primarily for retirement purposes.
(c) The office, after taking into consideration the claimant's financial resources, may exempt that portion of the victim's or claimant's annual income required to meet reasonable living expenses and the value of inventory or other property necessary for the claimant's business or occupation or the production of income required to meet reasonable living expenses. In no event shall the aggregate value of exemptions under this paragraph exceed one hundred thousand dollars.
(d) Nothing contained in this subdivision shall be construed to mean that the office must maintain the same standard of living enjoyed by the claimant prior to the death or injury.
(e) The director shall promulgate such rules and regulations as are necessary for the implementation of this section.
7. Notwithstanding the provisions of subdivision six of this section, an award shall include out-of-pocket expenses, including indebtedness reasonably incurred by the victim of a sex offense or the person responsible for the victim of such sex offense, as such sex offense is defined in article one hundred thirty of the penal law, for a hospital or medical examination in connection with the investigation or prosecution of any such offense.
8. Notwithstanding the provisions of subdivisions one, two and three of this section, an elderly or disabled victim who has not been physically injured as a direct result of a crime, shall only be eligible for an award that includes the unreimbursed cost of repair or replacement of essential personal property that has been lost, damaged or destroyed as a direct result of a crime, transportation expenses incurred for necessary court appearances in connection with the prosecution of such crimes and the unreimbursed cost of counselling provided to the elderly or disabled victim on account of mental or emotional stress or financial counselling provided to the elderly or disabled victim on account of financial difficulty resulting from the incident in which the crime occurred if such counselling or financial counselling is commenced within one year from the date of the incident. For purposes of this subdivision, "necessary court appearances" shall include, but not be limited to, any part of trial from arraignment through sentencing, pre and post trial hearings and grand jury hearings.
8-a. Notwithstanding the provisions of subdivision one of this section, a vulnerable elderly person or an incompetent or physically disabled person, as defined in section 260.31 of the penal law, who has not been physically injured as a direct result of a crime, shall be eligible for an award that includes loss of savings.
9. Any award made for the cost of repair or replacement of essential personal property, including cash losses of essential personal property, shall be limited to an amount of twenty-five hundred dollars, except that all cash losses of essential personal property shall be limited to the amount of one hundred dollars. In the case of medically necessary life-sustaining equipment which was lost or damaged as the direct result of a crime, the award shall be limited to the amount of ten thousand dollars.
10. Notwithstanding any contrary provision of law, an award shall include reasonable transportation expenses incurred for necessary court appearances in connection with the prosecution of such crimes upon which the claim is based. For purposes of this subdivision, "necessary court appearances" shall include but not be limited to any part of a proceeding from arraignment through sentencing, pre and post trial hearings and grand jury hearings.
11. Notwithstanding the provisions of subdivisions one, two and three of this section, an individual who was a victim of either the crime of: menacing in the second degree as defined in subdivision one of section 120.14 of the penal law; menacing in the third degree as defined in section 120.15 of the penal law; reckless endangerment in the second degree as defined in section 120.20 of the penal law; reckless endangerment in the first degree as defined in section 120.25 of the penal law; unlawful imprisonment in the first degree as defined in section 135.10 of the penal law; kidnapping in the second degree as defined in section 135.20 of the penal law; kidnapping in the first degree as defined in section 135.25 of the penal law; criminal mischief in the fourth degree as defined in subdivision four of section 145.00 of the penal law; robbery in the third degree as defined in section 160.05 of the penal law; robbery in the second degree as defined in subdivision one, paragraph (b) of subdivision two or subdivision three of section 160.10 of the penal law; robbery in the first degree as defined in subdivisions two, three and four of section 160.15 of the penal law; unlawful surveillance in the second degree as defined in section 250.45 of the penal law; or unlawful surveillance in the first degree as defined in section 250.50 of the penal law who has not been physically injured as a direct result of such crime shall only be eligible for an award that includes loss of earnings, the unreimbursed cost of crime scene cleanup and securing a crime scene, and the unreimbursed costs of counseling provided to such victim on account of mental or emotional stress resulting from the incident in which the crime occurred.
12. Notwithstanding the provisions of subdivisions one, two and three of this section, an individual who was a victim of either the crime of menacing in the second degree as defined in subdivision two or three of section 120.14 of the penal law, menacing in the first degree as defined in section 120.13 of the penal law, criminal obstruction of breathing or blood circulation as defined in section 121.11 of the penal law, harassment in the second degree as defined in section 240.26 of the penal law, harassment in the first degree as defined in section 240.25 of the penal law, aggravated harassment in the second degree as defined in subdivision three or five of section 240.30 of the penal law, aggravated harassment in the first degree as defined in subdivision two of section 240.31 of the penal law, criminal contempt in the first degree as defined in subdivision (b) or subdivision (c) of section 215.51 of the penal law, or stalking in the fourth, third, second or first degree as defined in sections 120.45, 120.50, 120.55 and 120.60 of the penal law, respectively, or unlawful dissemination or publication of an intimate image as defined in section 245.15 of the penal law, or dissemination of an unlawful surveillance image in the second or first degree as defined in sections 250.55 and 250.60 of the penal law, respectively, or a hate crime as defined in section 485.05 of the penal law who has not been physically injured as a direct result of such crime shall only be eligible for an award that includes loss of earning or support, the unreimbursed cost of repair or replacement of essential personal property that has been lost, damaged or destroyed as a direct result of such crime, the unreimbursed cost for security devices to enhance the personal protection of such victim, the cost of residing at or utilizing services provided by shelters for battered spouses and children as provided in subdivision one of section six hundred twenty-six of this article, transportation expenses incurred for necessary court appearances in connection with the prosecution of such crime, the unreimbursed costs of counseling provided to such victim on account of mental or emotional stress resulting from the incident in which the crime occurred, the unreimbursed cost of crime scene cleanup and securing a crime scene, reasonable relocation expenses, and for occupational or job training. For purposes of this subdivision, "necessary court appearances" shall include, but not be limited to, any part of trial from arraignment through sentencing, pre and post trial hearings and grand jury hearings.
13. (a) Notwithstanding any other provision of law, rule, or regulation to the contrary, when any New York state accredited hospital, accredited sexual assault examiner program, or licensed health care provider furnishes services to any sexual assault survivor, including but not limited to a health care forensic examination in accordance with the sex offense evidence collection protocol and standards established by the department of health, such hospital, sexual assault examiner program, or licensed healthcare provider shall provide such services to the person without charge and shall bill the office directly. The office, in consultation with the department of health, shall define the specific services to be covered by the sexual assault forensic exam reimbursement fee, which must include at a minimum forensic examiner services, hospital or healthcare facility services related to the exam, and any necessary related laboratory tests or pharmaceuticals; including but not limited to HIV post-exposure prophylaxis provided by a hospital emergency room at the time of the forensic rape examination pursuant to paragraph (c) of subdivision one of section twenty-eight hundred five-i of the public health law. For a person eighteen years of age or older, follow-up HIV post-exposure prophylaxis costs shall continue to be reimbursed according to established office procedure. The office, in consultation with the department of health, shall also generate the necessary regulations and forms for the direct reimbursement procedure.
(b) The rate for reimbursement shall be the amount of itemized charges, to be reimbursed at the Medicaid rate and which shall cumulatively not exceed (1) eight hundred dollars for an exam of a sexual assault survivor where no sexual offense evidence collection kit is used; (2) one thousand two hundred dollars for an exam of a sexual assault survivor where a sexual offense evidence collection kit is used; (3) one thousand five hundred dollars for an exam of a sexual assault survivor who is eighteen years of age or older, with or without the use of a sexual offense evidence collection kit, and with the provision of a necessary HIV post-exposure prophylaxis seven day starter pack; and (4) two thousand five hundred dollars for an exam of a sexual assault survivor who is less than eighteen years of age, with or without the use of a sexual offense evidence collection kit, and with the provision of the full regimen of necessary HIV post-exposure prophylaxis. The hospital, sexual assault examiner program, or licensed health care provider must accept this fee as payment in full for these specified services. No additional billing of the survivor for said services is permissible. A sexual assault survivor may voluntarily assign any private insurance benefits to which she or he is entitled for the healthcare forensic examination, in which case the hospital or healthcare provider may not charge the office; provided, however, in the event the sexual assault survivor assigns any private health insurance benefit, such coverage shall not be subject to annual deductibles or coinsurance or balance billing by the hospital, sexual assault examiner program or licensed health care provider. A hospital, sexual assault examiner program or licensed health care provider shall, at the time of the initial visit, request assignment of any private health insurance benefits to which the sexual assault survivor is entitled on a form prescribed by the office; provided, however, such sexual assault survivor shall be advised orally and in writing that he or she may decline to provide such information regarding private health insurance benefits if he or she believes that the provision of such information would substantially interfere with his or her personal privacy or safety and in such event, the sexual assault forensic exam fee shall be paid by the office. Such sexual assault survivor shall also be advised that providing such information may provide additional resources to pay for services to other sexual assault victims. Such sexual assault survivor shall also be advised that the direct reimbursement program established by this subdivision does not automatically make them eligible for any other compensation benefits available from the office including, but not limited to, reimbursement for mental health counseling expenses, relocation expenses, and loss of earnings, and that such compensation benefits may only be made available to them should the sexual assault survivor or other person eligible to file pursuant to section six hundred twenty-four of this article, file a compensation application with the office. If he or she declines to provide such health insurance information, he or she shall indicate such decision on the form provided by the hospital, sexual assault examiner program or licensed health care provider, which form shall be prescribed by the office.
14. Notwithstanding any inconsistent provision of this article, where a victim dies from injuries received as a direct result of the World Trade Center terrorist attacks on September eleventh, two thousand one, the office may make an award for the unreimbursed and unreimbursable expense or indebtedness reasonably incurred for the cost of counseling for the eligible spouse, grandparents, parents, stepparents, guardians, brothers, sisters, stepbrothers, stepsisters, children, or stepchildren of such victim. Any award for such expense incurred on or before December thirty-first, two thousand seven, shall be made without regard to the financial difficulty of the claimant.
15. Notwithstanding any inconsistent provision of this article, where a victim is injured as a direct result of the World Trade Center terrorist attacks on September eleventh, two thousand one, the office may make an award for the unreimbursed and unreimbursable expense or indebtedness reasonably incurred by the claimant for medical care or counseling services necessary as a result of such injury. Any award for such expense or indebtedness incurred on or before December thirty-first, two thousand seven, shall be made without regard to the financial difficulty of the claimant.
16. Notwithstanding any inconsistent provision of this article, and without regard to the financial difficulty of the claimant, where a victim dies from injuries received as a direct result of the World Trade Center terrorist attacks on September eleventh, two thousand one, the office may make an award of reasonable burial expenses for such victim.
17. Notwithstanding the provisions of subdivision one of this section, where a child victim has not been physically injured as a direct result of a crime or any violation listed in subdivision twelve of this section, or has witnessed a crime or any violation listed in subdivision twelve of this section in which no physical injury occurred, the claimant shall only be eligible for an award that includes the unreimbursed cost of repair or replacement of essential personal property of the child victim that has been lost, damaged or destroyed as a direct result of a crime or any violation listed in subdivision twelve of this section, transportation expenses incurred by the claimant for necessary court appearances of the child victim in connection with the prosecution of such crimes, and, if counseling is commenced within one year from the date of the incident or its discovery, (1) the unreimbursed cost of counseling provided to the child victim on account of mental or emotional stress resulting from the incident in which the crime or any violation listed in subdivision twelve of this section occurred, and/or (2) the unreimbursed cost of counseling provided to the claimant eligible under paragraph (h) of subdivision one of section six hundred twenty-four of this article and resulting from the incident in which the crime or any violation listed in subdivision twelve of this section occurred.
18. Notwithstanding any inconsistent provision of this article and subject to any applicable maximum award limitations contained in this section, where a victim has died as a direct result of the crime upon which the claim is based and the crime occurred in the residence of a person eligible pursuant to paragraph (k) of subdivision one of section six hundred twenty-four of this article, the office may make no more than one award for crime scene clean-up related to such residence.
§ 631-a. Crime victim service programs. 1. The office shall make grants, within amounts appropriated for that purpose, for crime victim service programs to provide services to crime victims and witnesses. These programs shall be operated at the community level by not-for-profit organizations, by agencies of local government or by any combination thereof. Crime victim service programs may be designed to serve crime victims and witnesses in general in a particular community, or may be designed to serve a category of persons with special needs relating to a particular kind of crime.
2. The director shall promulgate regulations, relating to these grants, including guidelines for its determinations.
(a) These regulations shall be designed to promote:
(i) alternative funding sources other than the state, including local government and private sources;
(ii) coordination of public and private efforts to aid crime victims; and
(iii) long range development of services to all victims of crime in the community and to all victims and witnesses involved in criminal prosecutions.
(b) These regulations shall also provide for services including, but not limited to:
(i) assistance to claimants seeking crime victims compensation benefits;
(ii) referrals, crisis intervention and other counseling services;
(iii) services to elderly victims and to child victims and their families;
(iv) transportation and household assistance; and
(v) outreach to the community and education and training of law enforcement and other criminal justice officials to the needs of crime victims.
§ 632. Manner of payment. 1. The award shall be paid in a lump sum, except that in the case of death or protracted disability the award shall provide for periodic payments to compensate for loss of earnings or support. No award made pursuant to this article shall be subject to execution or attachment other than for expenses resulting from the injury which is the basis for the claim.
2. Where a person entitled to receive an award is a person under the age of eighteen years, an incompetent, or a conservatee, the award may be paid to a relative, guardian, committee, conservator, or attorney of such person on behalf of and for the benefit of such person. In such case the payee shall be required to file a periodic accounting of the award with the office and to take such other action as the office shall determine is necessary and appropriate for the benefit of the person under the age of eighteen years, incompetent or conservatee.
§ 632-a. Crime victims. 1. For the purposes of this section:
(a) "Crime" means (i) any felony defined in the laws of the state; or (ii) an offense in any jurisdiction which includes all of the essential elements of any felony defined in the laws of this state and: (A) the crime victim, as defined in subparagraph (i) of paragraph (d) of this subdivision, was a resident of this state at the time of the commission of the offense; or (B) the act or acts constituting the offense occurred in whole or in part in this state.
(b) "Profits from a crime" means (i) any property obtained through or income generated from the commission of a crime of which the defendant was convicted; (ii) any property obtained by or income generated from the sale, conversion or exchange of proceeds of a crime, including any gain realized by such sale, conversion or exchange; and (iii) any property which the defendant obtained or income generated as a result of having committed the crime, including any assets obtained through the use of unique knowledge obtained during the commission of, or in preparation for the commission of, a crime, as well as any property obtained by or income generated from the sale, conversion or exchange of such property and any gain realized by such sale, conversion or exchange.
(c) "Funds of a convicted person" means all funds and property received from any source by a person convicted of a specified crime, or by the representative of such person as defined in subdivision six of section six hundred twenty-one of this article excluding child support and earned income, where such person:
(i) is an incarcerated individual serving a sentence with the department of corrections and community supervision or a prisoner confined at a local correctional facility or federal correctional institute, and includes funds that a superintendent, sheriff or municipal official receives on behalf of an incarcerated individual or prisoner and deposits in an incarcerated individual account to the credit of the incarcerated individual pursuant to section one hundred sixteen of the correction law or deposits in a prisoner account to the credit of the prisoner pursuant to section five hundred-c of the correction law; or
(ii) is not an incarcerated individual or prisoner but who is serving a sentence of probation or conditional discharge or is presently subject to an undischarged indeterminate, determinate or definite term of imprisonment or period of post-release supervision or term of supervised release, but shall include earned income earned during a period in which such person was not in compliance with the conditions of his or her probation, parole, conditional release, period of post-release supervision by the department of corrections and community supervision or term of supervised release with the United States probation office or United States parole commission. For purposes of this subparagraph, such period of non-compliance shall be measured, as applicable, from the earliest date of delinquency determined by the department of corrections and community supervision, or from the earliest date on which a declaration of delinquency is filed pursuant to section 410.30 of the criminal procedure law and thereafter sustained, or from the earliest date of delinquency determined in accordance with applicable federal law, rules or regulations, and shall continue until a final determination sustaining the violation has been made by the trial court, the department of corrections and community supervision, or appropriate federal authority; or
(iii) is no longer subject to a sentence of probation or conditional discharge or indeterminate, determinate or definite term of imprisonment or period of post-release supervision or term of supervised release, and where within the previous three years: the full or maximum term or period terminated or expired or such person was granted a discharge by the state board of parole or the department of corrections and community supervision pursuant to applicable law, or granted a discharge or termination from probation pursuant to applicable law or granted a discharge or termination under applicable federal or state law, rules or regulations prior to the expiration of such full or maximum term or period; and includes only: (A) those funds paid to such person as a result of any interest, right, right of action, asset, share, claim, recovery or benefit of any kind that the person obtained, or that accrued in favor of such person, prior to the expiration of such sentence, term or period; (B) any recovery or award collected in a lawsuit after expiration of such sentence where the right or cause of action accrued prior to the expiration or service of such sentence; and (C) earned income earned during a period in which such person was not in compliance with the conditions of his or her probation, parole, conditional release, period of post-release supervision by the department of corrections and community supervision or term of supervised release with the United States probation office or United States parole commission. For purposes of this subparagraph, such period of non-compliance shall be measured, as applicable, from the earliest date of delinquency determined by the department of corrections and community supervision, or from the earliest date on which a declaration of delinquency is filed pursuant to section 410.30 of the criminal procedure law and thereafter sustained, or from the earliest date of delinquency determined in accordance with applicable federal law, rules or regulations, and shall continue until a final determination sustaining the violation has been made by the trial court, the department of corrections and community supervision, or appropriate federal authority.
(d) "Crime victim" means (i) the victim of a crime; (ii) the representative of a crime victim as defined in subdivision six of section six hundred twenty-one of this article; (iii) a good samaritan as defined in subdivision seven of section six hundred twenty-one of this article; (iv) the office of victim services or other governmental agency that has received an application for or provided financial assistance or compensation to the victim.
(e) (i) "Specified crime" means:
(A) a violent felony offense as defined in subdivision one of section 70.02 of the penal law;
(B) a class B felony offense defined in the penal law;
(C) an offense for which a merit time allowance may not be received against the sentence pursuant to paragraph (d) of subdivision one of section eight hundred three of the correction law;
(D) an offense defined in the penal law that is titled in such law as a felony in the first degree;
(E) grand larceny in the fourth degree as defined in subdivision six of section 155.30 or grand larceny in the second degree as defined in section 155.40 of the penal law;
(F) criminal possession of stolen property in the second degree as defined in section 165.52 of the penal law; or
(G) an offense in any jurisdiction which includes all of the essential elements of any of the crimes specified in clauses (A) through (F) of this subparagraph and either the crime victim as defined in subparagraph (i) of paragraph (d) of this subdivision was a resident of this state at the time of the commission of the offense or the act or acts constituting the crime occurred in whole or in part in this state.
(ii) Notwithstanding the provisions of subparagraph (i) of this paragraph a "specified crime" shall not mean or include an offense defined in any of the following articles of the penal law: articles one hundred fifty-eight, one hundred seventy-eight, two hundred twenty, two hundred twenty-one, two hundred twenty-five, and two hundred thirty.
(f) "Earned income" means income derived from one's own labor or through active participation in a business as distinguished from income from, for example, dividends or investments.
2. (a) Every person, firm, corporation, partnership, association or other legal entity, or representative of such person, firm, corporation, partnership, association or entity, which knowingly contracts for, pays, or agrees to pay: (i) any profits from a crime as defined in paragraph (b) of subdivision one of this section, to a person charged with or convicted of that crime, or to the representative of such person as defined in subdivision six of section six hundred twenty-one of this article; or (ii) any funds of a convicted person, as defined in paragraph (c) of subdivision one of this section, where such conviction is for a specified crime and the value, combined value or aggregate value of the payment or payments of such funds exceeds or will exceed ten thousand dollars, shall give written notice to the office of the payment or obligation to pay as soon as practicable after discovering that the payment or intended payment constitutes profits from a crime or funds of a convicted person.
(b) Notwithstanding subparagraph (ii) of paragraph (a) of this subdivision, whenever the payment or obligation to pay involves funds of a convicted person that a superintendent, sheriff or municipal official receives or will receive on behalf of an incarcerated individual serving a sentence with the department of corrections and community supervision or prisoner confined at a local correctional facility and deposits or will deposit in an incarcerated individual account to the credit of the incarcerated individual or in a prisoner account to the credit of the prisoner, and the value, combined value or aggregate value of such funds exceeds or will exceed ten thousand dollars, the superintendent, sheriff or municipal official shall also give written notice to the office.
Further, whenever the state or subdivision of the state makes payment or has an obligation to pay funds of a convicted person, as defined in subparagraph (ii) or (iii) of paragraph (c) of subdivision one of this section, and the value, combined value or aggregate value of such funds exceeds or will exceed ten thousand dollars, the state or subdivision of the state shall also give written notice to the office.
In all other instances where the payment or obligation to pay involves funds of a convicted person, as defined in subparagraph (ii) or (iii) of paragraph (c) of subdivision one of this section, and the value, combined value or aggregate value of such funds exceeds or will exceed ten thousand dollars, the convicted person who receives or will receive such funds, or the representative of such person as defined in subdivision six of section six hundred twenty-one of this article, shall give written notice to the office.
(c) The office, upon receipt of notice of a contract, an agreement to pay or payment of profits from a crime or funds of a convicted person pursuant to paragraph (a) or (b) of this subdivision, or upon receipt of notice of funds of a convicted person from the superintendent, sheriff or municipal official of the facility where the incarcerated individual or prisoner is confined pursuant to section one hundred sixteen or five hundred-c of the correction law, shall notify all known crime victims of the existence of such profits or funds at their last known address.
3. Notwithstanding any inconsistent provision of the estates, powers and trusts law or the civil practice law and rules with respect to the timely bringing of an action, any crime victim shall have the right to bring a civil action in a court of competent jurisdiction to recover money damages from a person convicted of a crime of which the crime victim is a victim, or the representative of that convicted person, within three years of the discovery of any profits from a crime or funds of a convicted person, as those terms are defined in this section. Notwithstanding any other provision of law to the contrary, a judgment obtained pursuant to this section shall not be subject to execution or enforcement against the first one thousand dollars deposited in an incarcerated individual account to the credit of the incarcerated individual pursuant to section one hundred sixteen of the correction law or in a prisoner account to the credit of the prisoner pursuant to section five hundred-c of the correction law. In addition, where the civil action involves funds of a convicted person and such funds were recovered by the convicted person pursuant to a judgment obtained in a civil action, a judgment obtained pursuant to this section may not be subject to execution or enforcement against a portion thereof in accordance with subdivision (k) of section fifty-two hundred five of the civil practice law and rules. If an action is filed pursuant to this subdivision after the expiration of all other applicable statutes of limitation, any other crime victims must file any action for damages as a result of the crime within three years of the actual discovery of such profits or funds, or within three years of actual notice received from or notice published by the office of such discovery, whichever is later.
4. Upon filing an action pursuant to subdivision three of this section, the crime victim shall give notice to the office of the filing by delivering a copy of the summons and complaint to the office. The crime victim may also give such notice to the office prior to filing the action so as to allow the office to apply for any appropriate provisional remedies which are otherwise authorized to be invoked prior to the commencement of an action.
5. Upon receipt of a copy of a summons and complaint, or upon receipt of notice from the crime victim prior to filing the action as provided in subdivision four of this section, the office shall immediately take such actions as are necessary to:
(a) notify all other known crime victims of the alleged existence of profits from a crime or funds of a convicted person by certified mail, return receipt requested, where the victims' names and addresses are known by the office;
(b) publish, at least once every six months for three years from the date it is initially notified by a victim, pursuant to subdivision four of this section, a legal notice in newspapers of general circulation in the county wherein the crime was committed and in counties contiguous to such county advising any crime victims of the existence of profits from a crime or funds of a convicted person. For crimes committed in a county located within a city having a population of one million or more, the notice shall be published in newspapers having general circulation in such city. The office may, in its discretion, provide for such additional notice as it deems necessary;
(c) avoid the wasting of the assets identified in the complaint as the newly discovered profits from a crime or as funds of a convicted person, in any manner consistent with subdivision six of this section.
6. The office, acting on behalf of the plaintiff and all other victims, shall have the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff.
(a) The provisional remedies of attachment, injunction, receivership and notice of pendency available to the plaintiff under the civil practice law and rules, shall also be available to the office in all actions under this section.
(b) On a motion for a provisional remedy, the moving party shall state whether any other provisional remedy has previously been sought in the same action against the same defendant. The court may require the moving party to elect between those remedies to which it would otherwise be entitled.
7. (a) (i) Whenever it appears that a person or entity has knowingly and willfully failed to give notice in violation of paragraph (a) or (b) of subdivision two of this section, other than the state, a subdivision of the state, or a person who is a superintendent, sheriff or municipal official required to give notice pursuant to this section or section one hundred sixteen or section five hundred-c of the correction law, the office shall be authorized to serve a notice of hearing upon the person or entity by personal service or by registered or certified mail. The notice shall contain the time, place and purpose of the hearing. In addition, the notice shall be accompanied by a petition alleging facts of an evidentiary character that support or tend to support that the person or entity, who shall be named therein as a respondent, knowingly and willfully failed to give notice in violation of paragraph (a) or (b) of subdivision two of this section. Service of the notice and petition shall take place at least fifteen days prior to the date of the hearing.
(ii) The director or any individual designated by the director, shall preside over the hearing, shall administer oaths, may issue subpoenas and shall not be bound by the rules of evidence or civil procedure, but his or her determination shall be based on a preponderance of the evidence. At the hearing, the burden of proof shall be on the office. The office shall produce witnesses and present evidence in support of the alleged violation, which may include relevant hearsay evidence. The respondent, who may appear personally at the hearing, shall have the right of counsel and may cross-examine witnesses and produce evidence and witnesses in his or her behalf, which may include relevant hearsay evidence. The issue of whether the person who received an alleged payment or obligation to pay committed the underlying crime shall not be re-litigated at the hearing. Where the alleged violation is the failure to give notice of a payment amount involving two or more payments the combined value or aggregate value of which exceeds ten thousand dollars, no violation shall be found unless it is shown that such payments were intentionally structured to conceal their character as funds of a convicted person, as defined in this section.
(iii) At the conclusion of the hearing, if the director or designated individual is not satisfied that there is a preponderance of evidence in support of a violation, the director or designated individual shall dismiss the petition. If the director or designated individual is satisfied that there is a preponderance of the evidence that the respondent committed one or more violations, the director or designated individual shall so find. Upon such a finding, the director or designated individual shall prepare a written statement, to be made available to the respondent and respondent's counsel, indicating the evidence relied on and the reasons for finding the violation.
(iv) The director shall adopt, promulgate, amend and repeal administrative rules and regulations governing the procedures to be followed with respect to hearings, including rules and regulations for the administrative appeal of a decision made pursuant to this paragraph, provided such rules and regulations are consistent with the provisions of this subdivision.
(b)(i) Whenever it is found pursuant to paragraph (a) of this subdivision that a respondent knowingly and willfully failed to give notice in violation of paragraph (a) or (b) of subdivision two of this section, the office shall impose an assessment of up to the amount of the payment or obligation to pay and a civil penalty of up to one thousand dollars or ten percent of the payment or obligation to pay, whichever is greater. If a respondent fails to pay the assessment and civil penalty imposed pursuant to this paragraph, the assessment and civil penalty may be recovered from the respondent by an action brought by the attorney general, upon the request of the office, in any court of competent jurisdiction. The office shall deposit the assessment in an escrow account pending the expiration of the three year statute of limitations authorized by subdivision three of this section to preserve such funds to satisfy a civil judgment in favor of a person who is a victim of a crime committed by the convicted person to whom such failure to give notice relates. The office shall pay the civil penalty to the state comptroller who shall deposit the money in the state treasury pursuant to section one hundred twenty-one of the state finance law to the credit of the criminal justice improvement account established by section ninety-seven-bb of the state finance law.
(ii) The office shall then notify any crime victim or crime victims, who may have a claim against the convicted person, of the existence of such moneys. Such notice shall instruct such person or persons that they may have a right to commence a civil action against the convicted person, as well as any other information deemed necessary by the office.
(iii) Upon a crime victim's presentation to the office of a civil judgment for damages incurred as a result of the crime, the office shall satisfy up to one hundred percent of that judgment, including costs and disbursements as taxed by the clerk of the court, with the escrowed fund obtained pursuant to this paragraph, but in no event shall the amount of all judgments, costs and disbursements satisfied from such escrowed funds exceed the amount in escrow. If more than one such crime victim indicates to the office that they intend to commence or have commenced a civil action against the convicted person, the office shall delay satisfying any judgment, costs and disbursements until the claims of all such crime victims are reduced to judgment. If the aggregate of all judgments, costs and disbursement obtained exceeds the amount of escrowed funds, the amount used to partially satisfy each judgment shall be reduced to a pro rata share.
(iv) After expiration of the three year statute of limitations period established in subdivision three of this section, the office shall review all judgments that have been satisfied from such escrowed funds. In the event no claim was filed or judgment obtained prior to the expiration of the three year statute of limitations, the office shall return the escrowed amount to the respondent. In the event a claim or claims are pending at the expiration of the statute of limitations, such funds shall remain escrowed until the final determination of all such claims to allow the office to satisfy any judgment which may be obtained by the crime victim. Upon the final determination of all such claims and the satisfaction of up to one hundred percent of such claims by the office, the office shall be authorized to impose an additional civil penalty of up to one thousand dollars or ten percent of the payment or obligation to pay, whichever is greater. Prior to imposing any such penalty, the office shall serve a notice upon the respondent by personal service or by registered or certified mail of the intent of the office to impose such penalty thirty days after the date of the notice and of the opportunity to submit documentation concerning the office's determination. After imposing and deducting any such additional civil penalty, the office shall distribute such remaining escrowed funds, if any, as follows: fifty percent to the state comptroller, who shall deposit the money in the state treasury pursuant to section one hundred twenty-one of the state finance law to the credit of the criminal justice improvement account established by section ninety-seven-bb of the state finance law; and fifty percent to the respondent.
(v) Notwithstanding any provision of law, an alleged failure by a convicted person to give notice under this section may not result in proceedings for an alleged violation of the conditions of probation, parole, conditional release, post release supervision or supervised release unless: one or more claims were made by a crime victim against the convicted person pursuant to this section, and the office imposes an assessment and/or penalty upon the convicted person pursuant to this section, and the convicted person fails to pay the total amount of the assessment and/or penalty within sixty days of the imposition of such assessment and/or penalty.
(vi) Records maintained by the office and proceedings by the office based thereon regarding a claim submitted by a victim or a claimant shall be deemed confidential, subject to the exceptions that appear in subdivision one of section six hundred thirty-three of this article.
§ 633. Confidentiality of records. 1. Records maintained by the office and proceedings by the office based thereon regarding a claim submitted by a victim or a claimant shall be deemed confidential with the following exceptions:
(a) requests for information based upon legitimate criminal justice purposes;
(b) judicial subpoenas;
(c) requests for information by the victim or claimant or his or her authorized representative;
(d) for purposes necessary and proper for the administration of this article.
2. All other records, including but not limited to, records maintained pursuant to sections six hundred thirty-one-a and six hundred thirty-two-a of this article and proceedings by the office based thereon shall be public record.
3. Any report or record obtained by the office, the confidentiality of which is protected by any other law or regulation, shall remain confidential subject to such law or regulation.
§ 634. Subrogation. 1. (a) Acceptance of an award made pursuant to this article shall subrogate the state, to the extent of such award, to any right or right of action accruing to the claimant or the victim to recover payments on account of losses resulting from the crime with respect to which the award is made. Upon the payment of an award, the office may, by writing, notify the claimant that such claimant has ninety days, or thirty days prior to the date of expiration of the applicable statute of limitations, whichever period is shorter, within which to commence an action against his assailant or any third party who, as a result of the crime, may be liable in damages to the claimant. If the claimant fails to commence an action within the time provided herein, such failure shall, after written notification by the office to the claimant, operate as an assignment of the claimant's cause of action against the assailant or such other third party to the state; provided, however, that should the claimant's cause of action be in an amount in excess of the office's award, such assignment shall be for only that portion of the cause of action which equals the amount of the award.
(b) The office of victim services shall review those claims that have been approved by the office and that have resulted in an award in excess of one thousand dollars for the purpose of identifying those causes of action that are likely to result in recovery of the state's payment to the victim. The office shall submit a list of these claims on a monthly basis to the attorney general with all necessary information relating to the case including whether the claimant's cause of action has been assigned to the office.
(c) The attorney general may commence an action against the defendant convicted of the crime or third party for money damages to the extent of the award paid, and the claimant shall retain a right of action, subject to defenses, to recover damages for the full amount of loss incurred by him as a result of the crime less the amount assigned to the state by operation of this subdivision. Notwithstanding any other provision of law, an action brought by the attorney general pursuant to this paragraph against the defendant convicted of the crime must be commenced within seven years of the crime or pursuant to the time frames authorized in subdivision three of section six hundred thirty-two-a of this article. A claimant who retains such right of action shall be permitted to intervene in any action brought pursuant to this subdivision by the attorney general. Any action brought by the attorney general may be compromised or settled provided the attorney general and the office find that such action is in the best interests of the state.
2. Acceptance of an award made pursuant to this article shall create a lien in favor of the state on the proceeds of any recovery from the person or persons liable for the injury or death giving rise to the award by the office, whether by judgment, settlement or otherwise, after the deduction of the reasonable and necessary expenditures, including attorney's fees, incurred in effecting such recovery, to the total amount of the award made by the office. Such lien shall attach to any moneys received or to be received by the claimant or victim on account of losses resulting from the crime. Should the claimant or victim secure a recovery from the person or persons liable for the injury or death giving rise to the award by the office, whether by judgment, settlement or otherwise, such claimant may, upon notice to the office, apply to the court in which the action was instituted, or to any court of competent jurisdiction if no action was instituted, for an order apportioning the reasonable and necessary expenditures, including attorney's fees, incurred in effecting such recovery. Such expenditures shall be equitably apportioned by the court between the claimant and the office. A copy of such lien shall be mailed to the clerk of the county within which the crime occurred and such clerk will file the copy in accordance with the duties of such clerk as set forth in section five hundred twenty-five of the county law. The amount of such lien may be compromised or settled by the office provided the office finds that such action is in the best interests of the state, or payment of the full amount of the lien to the state would cause undue hardship for the victim.
2-a. To the extent the office has made an award pursuant to this article for burial expenses, such amount shall be considered among reasonable funeral expenses of the decedent pursuant to subdivision one of section eighteen hundred eleven of the surrogate's court procedure act, to be recovered by the office, provided, however, that if a beneficiary of the victim's estate is also a person eligible to receive an award pursuant to section six hundred twenty-four of this article, the office shall recover such amounts pursuant to subdivision two of this section to the extent an award has been made to such person, prior to pursuing recovery from the victim's estate. Any recovery from a victim's estate under this subdivision shall reduce the state's lien under this section to the extent of the recovery by the office.
3. Any claimant who has received an award under this article, or his guardian, judicially appointed personal representative, or his estate, who brings an action for damages against the person or persons liable for the injury or death giving rise to an award by the office under this article shall give written notice to the office of the commencement of such action at the time such action is commenced. Such notice shall be served personally or by certified mail, return receipt requested.
4. The attorney general may intervene, as of right, in any such action on behalf of the state of New York for the purpose of recovering the subrogated interest due the state of New York under the provisions of this article.
5. The director shall adopt rules and regulations to carry out the provisions and purposes of this section.
6. The office shall compile information on the number of cases submitted to the attorney general, the number of actions instituted by the attorney general to recover payments made to crime victims, the dollar amount of recoveries made in such actions both on behalf of the state and any awards made to victims who intervene in such actions. The office shall include this information, and any recommendations to the governor and legislature to improve the collection of awards, in its annual report.
§ 635. Severability of provisions. If any provision of this article or the application thereof to any person or circumstances is held invalid, the remainder of this article and the application of such provision to other persons or circumstances shall not be affected thereby.
§ 636. Community violence intervention act. 1. Legislative findings. The legislature hereby finds and declares that gun violence and other forms of violence constitute a crisis that poses a serious threat to the health and quality of life of all residents of the state of New York. An epidemic of violence is tearing at the fabric of life in many urban areas. The legislature further finds that funds from the Victims of Crime Act should be used to support hospital based violence intervention programs and community based violence intervention programs.
2. Community violence intervention grants. The office shall dedicate ten percent or more of the total funding received per award cycle pursuant to the federal Victims of Crime Act of 1984 to support:
(a) "community-based violence intervention programs" which shall mean a violence intervention program that is: (i) a nonprofit organization; and (ii) provides intensive counseling, case management, and social services to individuals who are recovering from injuries resulting from violence or who were witness to acts of violence;
(b) "hospital-based violence intervention programs" which shall mean a violence intervention program that is: (i) operated by: (A) a public hospital; or (B) a nonprofit or government entity in collaboration with a public or not-for-profit hospital; and (ii) provides intensive counseling, case management, and social services to individuals who are recovering from injuries resulting from violence or who were witness to acts of violence.
3. The office shall promulgate guidance relating to community violence intervention for hospital-based violence intervention programs and community-based violence intervention programs.
(a) This guidance shall be designed to promote:
(i) alternative funding sources other than the state, including local government and private sources as well as funding from the federal Victims of Crime Act of 1984;
(ii) coordination of public and private efforts to aid individuals who are recovering from injuries resulting from violence or who were witnesses to acts of violence; and
(iii) long range development of services to victims of violent crimes in the community.
(b) This guidance shall also provide for:
(i) clearly defined and measurable objectives intended to demonstrate that a program is developed and evaluated through scientific research and data collection with measurable evidence of positive outcomes related to violence intervention;
(ii) a description of how the nonprofit organization proposes to use the funding to:
(A) establish or enhance community-based violence intervention programs;
(B) enhance coordination of existing violence intervention programs, if any, to minimize duplication of services; and
(C) plan for the collection of relevant data; and
(iii) outreach to the community and education and training of law enforcement and other criminal justice officials to the needs of victims of violent crimes in the community, to perpetrators of violent crimes and to witnesses of violent crimes involved in criminal prosecutions.
4. To the extent practicable, the office shall make efforts to inform community-based violence intervention programs and hospital-based intervention programs about anticipated awards.