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

                                  5506

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 28, 2013
                               ___________

Introduced  by  M.  of A. GABRYSZAK, CASTRO, BROOK-KRASNY -- Multi-Spon-
  sored by -- M. of A.   SWEENEY, TITUS, WEISENBERG  --  read  once  and
  referred to the Committee on Codes

AN  ACT to amend the penal law, the criminal procedure law and the civil
  practice law and rules, in relation to requiring restitution or  repa-
  ration for all crimes and providing additional methods of enforcement

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

  Section 1. Subdivision 1 of section 60.27 of the penal law, as amended
by chapter 279 of the laws of 2008, is amended to read as follows:
  1. In addition to any of the dispositions authorized by this  article,
the court shall [consider restitution or reparation to the victim of the
crime and may] require restitution or reparation as part of the sentence
imposed  upon  a person convicted of an offense, and after providing the
district attorney with an opportunity to be heard in accordance with the
provisions of this subdivision, require the defendant to  make  restitu-
tion  of  the  fruits of his or her offense or reparation for the actual
out-of-pocket loss caused thereby and, in the case  of  a  violation  of
section  190.78,  190.79,  190.80, 190.82 or 190.83 of this chapter, any
costs or losses incurred due to any adverse  action  taken  against  the
victim.  The district attorney shall where appropriate, advise the court
at or before the time of sentencing that the victim seeks restitution or
reparation, the extent of injury or  economic  loss  or  damage  of  the
victim, and the amount of restitution or reparation sought by the victim
in  accordance with his or her responsibilities under subdivision two of
section 390.50 of the criminal procedure law and article twenty-three of
the executive law. The court shall hear  and  consider  the  information
presented  by  the  district  attorney in this regard. In that event, or
when the victim impact statement reports that the victim seeks  restitu-
tion  or  reparation,  the court shall require[, unless the interests of
justice dictate otherwise], in  addition  to  any  of  the  dispositions

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09173-01-3
              

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authorized  by  this  article that the defendant make restitution of the
fruits of the offense and reparation for the actual  out-of-pocket  loss
and,  in  the  case  of  a  violation of section 190.78, 190.79, 190.80,
190.82  or  190.83  of this chapter, any costs or losses incurred due to
any adverse action, caused thereby to the victim.  [In  the  event  that
restitution or reparation are not ordered, the court shall clearly state
its  reasons  on the record.] Adverse action as used in this subdivision
shall mean and include actual loss incurred by the victim, including  an
amount  equal  to  the  value of the time reasonably spent by the victim
attempting to remediate  the  harm  incurred  by  the  victim  from  the
offense, and the consequential financial losses from such action.
  S  2.  Subdivision  2 of section 60.27 of the penal law, as amended by
chapter 618 of the laws of 1992, is amended to read as follows:
  2. [Whenever the court requires restitution or reparation to be  made,
the]  FOR  EVERY  OFFENSE THE court must make a finding as to the dollar
amount of the fruits of the offense and the actual out-of-pocket loss to
the victim caused by the offense. In making this finding, the court must
consider any victim impact statement  provided  to  the  court.  If  the
record  does  not contain sufficient evidence to support such finding or
upon request by the defendant, the court must conduct a hearing upon the
issue in accordance with the procedure set forth in  section  400.30  of
the criminal procedure law.
  S 3. Paragraph (b) of subdivision 4 of section 60.27 of the penal law,
as  amended  by  chapter  313 of the laws of 2011, is amended to read as
follows:
  (b) the term "victim" shall include the victim  of  the  offense,  the
representative  of  a  crime  victim  as  defined  in subdivision six of
section six hundred twenty-one of the executive law, an individual whose
identity was assumed or whose personal identifying information was  used
in  violation  of  section 190.78, 190.79 or 190.80 of this chapter, THE
PARENT OR PARENTS OF A VICTIM OF A HOMICIDE OFFENSE, or any  person  who
has  suffered  a  financial  loss  as  a  direct result of the acts of a
defendant in violation of section  190.78,  190.79,  190.80,  190.82  or
190.83  of  this  chapter,  a  good  samaritan as defined in section six
hundred twenty-one of  the  executive  law  and  the  office  of  victim
services  or  other governmental agency that has received an application
for or has provided financial assistance or compensation to the  victim.
A  victim  shall  also  mean  any  owner  or lawful producer of a master
recording, or a trade association that represents such owner  or  lawful
producer,  that has suffered injury as a result of an offense as defined
in article two hundred seventy-five of this chapter.
  S 4. Paragraph (b) of subdivision 6 of section 420.10 of the  criminal
procedure law, as amended by chapter 618 of the laws of 1992, is amended
to read as follows:
  (b)  The  district attorney [may, in his or her discretion, and must],
upon order of the court, SHALL institute  proceedings  to  collect  such
fine,  restitution  or  reparation  INCLUDING,  BUT  NOT LIMITED TO, THE
RETENTION OF A COLLECTION AGENCY PREVIOUSLY APPROVED  BY  THE  COURT  IN
ACCORDANCE WITH THE GUIDELINES ESTABLISHED BY THE OFFICE OF COURT ADMIN-
ISTRATION.
  S  5. Subdivision 6 of section 420.10 of the criminal procedure law is
amended by adding a new paragraph (c) to read as follows:
  (C) THE COURT MAY MAKE AN INCOME DEDUCTION ORDER  FOR  RESTITUTION  OR
REPARATION  ENFORCEMENT UNDER SECTION FIFTY-TWO HUNDRED FORTY-TWO OF THE
CIVIL PRACTICE LAW AND RULES.

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  S 6. The section heading of section 5241 of the civil practice law and
rules, as added by chapter 809 of the laws of 1985, is amended  to  read
as follows:
  Income execution for support, RESTITUTION OR REPARATION enforcement.
  S  7.  Subdivision  (a)  of section 5241 of the civil practice law and
rules is amended by adding a new paragraph 1-a to read as follows:
  1-A. "ORDER OF RESTITUTION OR REPARATION" MEANS ANY ORDER OF  A  COURT
REQUIRING,  AS  PART OF A SENTENCE IMPOSED UPON A PERSON CONVICTED OF AN
OFFENSE, A DEFENDANT TO MAKE RESTITUTION OF THE FRUITS OF HIS OFFENSE OR
REPARATION FOR THE LOSS OR DAMAGE CAUSED THEREBY.
  S 8. Paragraphs 2, 3, 7 and 8 of subdivision (a) of  section  5241  of
the civil practice law and rules, as added by chapter 809 of the laws of
1985, are amended to read as follows:
  2.  "Debtor" means any person directed to make payments by an order of
support, RESTITUTION OR REPARATION.
  3. "Creditor" means  any  person  entitled  to  enforce  an  order  of
support,  including a support collection unit OR AN ORDER OF RESTITUTION
OR REPARATION.
  7. "Default" means the failure of a debtor  to  remit  to  a  creditor
three  payments  on the date due in the full amount directed by [the] AN
order of support, RESTITUTION  OR  REPARATION  or  the  accumulation  of
arrears  equal to or greater than the amount directed to be paid for one
month, whichever first occurs.
  8. "Mistake of fact" means an error in the amount of current  support,
RESTITUTION OR REPARATION or arrears or in the identity of the debtor or
that  the  order of support, RESTITUTION OR REPARATION does not exist or
has been vacated.
  S 9. Paragraph 1 of subdivision (b) of section 5241 of the civil prac-
tice law and rules, as amended by chapter 59 of the  laws  of  1993,  is
amended to read as follows:
  (1)  When a debtor is in default, an execution for support enforcement
may be issued by the support collection unit, or  by  the  sheriff,  the
clerk of THE court or the attorney for the creditor as an officer of the
court.    WHEN  A  DEBTOR IS IN DEFAULT, AN EXECUTION FOR RESTITUTION OR
REPARATION ENFORCEMENT MAY BE ISSUED BY THE SHERIFF, THE  CLERK  OF  THE
COURT OR THE ATTORNEY FOR THE CREDITOR AS AN OFFICER OF THE COURT. Where
a  debtor  is  receiving  or  will  receive  income,  an  execution  for
deductions therefrom in amounts not to exceed the limits  set  forth  in
subdivision (g) of this section may be served upon an employer or income
payor  after  notice  to  the debtor. The amount of the deductions to be
withheld shall be sufficient to ensure compliance with the direction  in
the  order  of  support,  RESTITUTION OR REPARATION and shall include an
additional amount to be applied to the reduction of arrears. The  credi-
tor may amend the execution before or after service upon the employer or
income  payor  to  reflect  additional  arrears  or payments made by the
debtor after notice pursuant to subdivision (d) of this section,  or  to
conform  the  execution  to  the  facts  found upon a determination made
pursuant to subdivision (e) of this section.
  S 10. The subdivision heading, the opening paragraph and  subparagraph
(ii)  of  paragraph  1  of  subdivision (c) of section 5241 of the civil
practice law and rules, the subdivision heading as amended by chapter 59
of the laws of 1993 and the opening paragraph and subparagraph  (ii)  of
paragraph  1  as amended by chapter 214 of the laws of 1998, are amended
to read as follows:
  Execution for support, RESTITUTION OR REPARATION enforcement; form.

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  The income execution  shall  contain  the  caption  of  the  order  of
support,  RESTITUTION  OR REPARATION and specify the date that the order
of support, RESTITUTION OR REPARATION was entered, the court in which it
was entered, the amount of the periodic payments directed, the amount of
arrears, the nature of the default and the names of the debtor and cred-
itor. In addition, the income execution shall include:
  (ii)  the  amount of the deductions to be made therefrom on account of
current support, RESTITUTION OR REPARATION and the amount to be  applied
to the reduction of arrears;
  S  11.  Subdivision  (e) of section 5241 of the civil practice law and
rules, as amended by chapter 94 of the laws of 2008, is amended to  read
as follows:
  (e)  Determination  of  mistake  of fact. Where the execution has been
issued by the support collection unit, the debtor may assert  a  mistake
of fact and shall have an opportunity to make a submission in support of
the objection within fifteen days from service of a copy thereof.  Ther-
eafter,  the  agency  shall  determine  the merits of the objection, and
shall notify the debtor of  its  determination  within  forty-five  days
after  notice  to  the  debtor  as  provided  in subdivision (d) of this
section. If the objection is disallowed, the debtor  shall  be  notified
that  the  income  execution  will  be  served on the employer or income
payor, and of the time that deductions  will  begin.  Where  the  income
execution  has been issued by an attorney as officer of the court, or by
the sheriff, or by the clerk of the  court,  the  debtor  may  assert  a
mistake  of  fact  within fifteen days from service of a copy thereof by
application to the supreme court or to the family court having jurisdic-
tion in accordance with section four hundred  sixty-one  of  the  family
court  act. If application is made to the family court, such application
shall be by petition on notice to the creditor and it shall be heard and
determined in accordance with the provisions  of  section  four  hundred
thirty-nine  of  the family court act, and a determination thereof shall
be made, and the debtor notified thereof within forty-five days  of  the
application.  If  application is made to the supreme court such applica-
tion shall be by order to show cause or motion on notice to the creditor
in the action in which the order or judgement sought to be enforced  was
entered  and a determination thereof shall be made, and the debtor noti-
fied thereof within forty-five days  of  the  application.    WHERE  THE
INCOME EXECUTION HAS BEEN ISSUED BY AN ATTORNEY AS OFFICER OF THE COURT,
OR  BY  THE SHERIFF, OR BY THE CLERK OF THE COURT TO ENFORCE AN ORDER OF
RESTITUTION OR REPARATION, THE DEBTOR MAY ASSERT A MISTAKE OF FACT WITH-
IN FIFTEEN DAYS FROM SERVICE OF A COPY THEREOF  BY  APPLICATION  TO  THE
SUPREME  COURT  HAVING  ISSUED  SUCH ORDER. SUCH APPLICATION SHALL BE BY
PETITION ON NOTICE TO THE CREDITOR AND, IT SHALL BE HEARD AND DETERMINED
IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE FOUR OF THIS CHAPTER, AND A
DETERMINATION THEREOF SHALL BE MADE, AND  THE  DEBTOR  NOTIFIED  THEREOF
WITHIN FORTY-FIVE DAYS OF THE APPLICATION.
  S  12.  The  opening  paragraph  of  paragraph 1 of subdivision (g) of
section 5241 of the civil practice law and rules, as amended by  chapter
398 of the laws of 1997, is amended to read as follows:
  An  employer  or  income  payor  served with an income execution shall
commence deductions from income due or thereafter due to the  debtor  no
later  than the first pay period that occurs fourteen days after service
of the execution, and shall remit payments to the creditor within  seven
business  days of the date that the debtor is paid.  Each payment remit-
ted by an employer or income payor shall include,  in  addition  to  the
identity  and  social security number of the debtor, the date and amount

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of each withholding of the debtor's income included in the payment.   If
the  money  due to the debtor consists of salary or wages and his or her
employment is terminated by resignation or dismissal at any  time  after
service  of the execution, the levy shall thereafter be ineffective, and
the execution shall be returned, unless  the  debtor  is  reinstated  or
re-employed within ninety days after such termination.  An employer must
notify  the  issuer  promptly  when the debtor terminates employment and
provide the debtor's last address  and  name  and  address  of  the  new
employer,  if known. Where the income is compensation paid or payable to
the debtor for personal services, the amount of  the  deductions  to  be
withheld FOR SUPPORT ENFORCEMENT shall not exceed the following:
  S  13.  Subdivision  (g) of section 5241 of the civil practice law and
rules is amended by adding a new paragraph 5 to read as follows:
  (5) WHERE THE INCOME IS COMPENSATION PAID OR PAYABLE TO THE DEBTOR FOR
PERSONAL SERVICES, THE AMOUNT OF  THE  DEDUCTIONS  TO  BE  WITHHELD  FOR
RESTITUTION OR REPARATION SHALL NOT EXCEED FIFTY PERCENT OF THE EARNINGS
OF  THE  DEBTOR  REMAINING  AFTER THE DEDUCTION THEREFROM OF ANY AMOUNTS
REQUIRED BY LAW TO BE WITHHELD ("DISPOSABLE EARNINGS").
  S 14. The section heading and subdivisions (a) and (b) of section 5242
of the civil practice law and rules, as amended by chapter  170  of  the
laws of 1994, are amended to read as follows:
  Income deduction order for support, RESTITUTION OR REPARATION enforce-
ment.    (a)  Upon  application of a creditor, for good cause shown, and
upon such terms as justice  may  require,  the  court  may  correct  any
defect,  irregularity,  error  or  omission  in  an income execution for
support,  RESTITUTION  OR  REPARATION  enforcement  issued  pursuant  to
section [5241] FIFTY-TWO HUNDRED FORTY-ONE of this article.
  (b)  Upon  application  of a creditor, for good cause shown, the court
may enter an income deduction order for support, RESTITUTION OR  REPARA-
TION  enforcement.    In determining good cause, the court may take into
consideration evidence of the degree of  such  debtor's  past  financial
responsibility,  credit references, credit history, and any other matter
the court considers relevant in determining the likelihood of payment in
accordance with the order of support, RESTITUTION OR REPARATION.   Proof
of  default establishes a prima facie case against the debtor, which can
be overcome only  by  proof  of  the  debtor's  inability  to  make  the
payments.    Unless  the  prima  facie case is overcome, the court shall
enter an income deduction order for support, RESTITUTION  OR  REPARATION
enforcement pursuant to this section.
  S  15.  Subdivision  (g) of section 5242 of the civil practice law and
rules, as amended by chapter 170 of the laws of 1994, is amended to read
as follows:
  (g) Where the court issues an income deduction order  for  RESTITUTION
ENFORCEMENT,  REPARATION  ENFORCEMENT  OR support enforcement payable to
the support collection unit, as defined in paragraph nine of subdivision
(a) of section [5241] FIFTY-TWO HUNDRED FORTY-ONE of this article,  each
payment  remitted by an employer or income payor shall include, in addi-
tion to the identity and social security number of the debtor, the  date
and  amount  of  each withholding of the debtor's income included in the
payment.
  S 16. This act shall take effect on  the  one  hundred  twentieth  day
after  it  shall have become a law, except that any guidelines necessary
for the timely implementation of this act on its effective date shall be
established on or before such date.