S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3104
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 26, 2017
                                ___________
 
 Introduced  by M. of A. McKEVITT, GRAF, MONTESANO, KOLB -- 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.
   §  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.
   § 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.
   §  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.
                                                            LBD04653-01-7
              

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   § 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.
   § 6. Paragraph 1 of subdivision (b) of section 5241 of the civil prac-
 tice law and rules, as amended by chapter 270 of the laws  of  2013,  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 issuer
 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.
   § 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, the opening  paragraph  and  subparagraph  (ii)  as
 amended  by  chapter  270  of  the  laws of 2013, are amended to read as
 follows:
   Execution for support, RESTITUTION OR REPARATION enforcement; form.
   The income execution shall be  on  the  form  for  income  withholding
 promulgated  by  the  office  of temporary and disability assistance for
 this purpose and shall include the necessary information and  directions
 to  ensure  its  characterization  as  an  income  withholding notice as
 described and required by subsection (b) of section six  hundred  sixty-
 six  of  title  forty-two  of the United States Code; provided, however,
 that where the court enters an order for spousal support, RESTITUTION OR
 REPARATION only for which income withholding  will  be  ordered  by  the
 sheriff,  the clerk of court or the attorney for the creditor, an alter-
 nate [spousal support] form for income withholding  promulgated  by  the
 office  of  temporary  and  disability assistance may be used but is not

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 required. In addition, the income execution shall specify the  court  in
 which  it was entered, the amount of the periodic payments directed, and
 the names of the debtor and creditor. In addition,  to  the  extent  not
 already provided on the form for income withholding, a separate document
 shall be served with the income execution which 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;
   §  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.
   §  9.  The  opening  paragraph  of  paragraph  1 of subdivision (g) of
 section 5241 of the civil practice law and rules, as amended by  chapter
 270 of the laws of 2013, 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 within seven business days of
 the date that the debtor is paid. Each payment remitted by  an  employer
 or  income  payor  shall  include  the  information as instructed on the
 income execution and shall be payable  to  and  remitted  to  the  state
 disbursement  unit  established in this state in accordance with section

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 six hundred fifty-four-b of title forty-two of the  United  States  Code
 unless  the  income execution is for spousal support only, in which case
 the payments shall be payable to and remitted to the  creditor.  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. An income payor must notify the issuer promptly when
 the debtor no longer receives income and must provide the debtor's  last
 address and the name and address of the debtor's 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:
   §  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").
   § 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.
   §  12.  Subdivision  (g) of section 5242 of the civil practice law and
 rules, as amended by chapter 270 of the laws of 2013, is amended to read
 as follows:
   (g) An order pursuant to this section shall  take  priority  over  any
 other  assignment,  levy  or  process. If an employer or income payor is
 served with  more  than  one  income  deduction  order  FOR  RESTITUTION
 ENFORCEMENT, REPARATION ENFORCEMENT OR SUPPORT ENFORCEMENT pertaining to
 a  single  employee  pursuant  to  this section, or with an order issued
 pursuant to this section and  also  an  execution  pursuant  to  section
 [5241]  FIFTY-TWO HUNDRED FORTY-ONE of this article, and if the combined
 total amount of the income to be withheld exceeds the limits  set  forth
 in  subdivision  (f) of this section, the employer or income payor shall

 A. 3104                             5
 
 withhold the maximum amount permitted thereby and pay to  each  creditor
 that  proportion  thereof  which  such  creditor's  claim  bears  to the
 combined total.
   §  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.