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

                                  5825

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 20, 2009
                               ___________

Introduced  by  M.  of A. McKEVITT, WALKER, ERRIGO, FINCH, ALFANO, McDO-
  NOUGH, KOLB -- Multi-Sponsored by -- M. of A. BACALLES, BARRA,  GIGLIO
  -- read once and referred to the Committee on Codes

AN  ACT  to  amend the criminal procedure law and the civil practice law
  and rules, in relation to the enforcement of orders of restitution  or
  reparation

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

  Section 1. 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, 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 ADMINISTRATION.
  S 2. Subdivision 6 of section 420.10 of the criminal procedure law  is
amended by adding a new paragraph (c) to read as follows:
  (C)  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.
  S 3. 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 4. 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09013-01-9
              

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  S  5.  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 6. 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  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  7.  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.
  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;

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  S  8.  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  9.  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
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

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the debtor for personal services, the amount of  the  deductions  to  be
withheld FOR SUPPORT ENFORCEMENT shall not exceed the following:
  S  10.  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 11. 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  12.  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 13. 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.