NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2358
SPONSOR: Lavine TITLE OF BILL:
An act to amend the tax law, the penal law and the state finance law, in
relation to establishing the child victim foundation fund and implement-
ing a supplemental child victim fee
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to establish a fund to assist victims of
childhood sexual assault with civil legal services and fees.
SUMMARY OF PROVISIONS:
Section One amends the tax law by adding a new section 209-N, entitled
"Gift for the Child Victim Foundation Fund". This section allows a busi-
ness corporation to contribute their tax refund to the support of the
Child Victim Foundation Fund.
Section Two amends the tax law by adding a new section 630-h, also enti-
tled "Gift for the Child Victim Foundation Fund". This section allows
individuals to donate their tax refund directly to the Child Victim
Foundation Fund.
Section Three amends section 60.35 of the penal law to establish a
Supplemental Child Victim Fee to be assessed against any criminal
defendant found guilty, or who has pled guilty, to an enumerated crime
against an individual under the age of eighteen. The Supplemental. Child
Victim Fee will be assessed in the same manner as the Supplemental Sex
Offender Victim Fee.
Section Four amends section 60.35 of the penal law, providing that
revenues from the fee established pursuant to section three will be
dedicated to the Child Victim Foundation Fund.
Section Five amends section 60.02 of the penal law to provide an excep-
tion to the Supplemental Child Victim Fee for persons whose convictions
have been substituted with a youthful offender finding.
Section Six amends the state finance law, by adding a new section 99-h
establishing the Child Victim Foundation Fund, within the joint custody
of the Commissioner of Tax, the Comptroller, and the Commissioner of the
Division of Criminal Justice_ Services. Monies in the fund are to be
kept separate from other funds and are to be allocated exclusively to
not-for-profit entities providing civil legal services to victims of
childhood sexual abuse.
Section Seven provides for an immediate effective date.
JUSTIFICATION:
This legislation builds upon the historic passage of the Child Victims
Act in the 2019 Legislative Session, which opened the statute of limita-
tions for victims of childhood sexual abuse to initiate civil claims
against those responsible for the abuse. Unfortunately, victims of
childhood sex abuse who fought so courageously for the passage of this
law are facing another obstacle in their pursuit of justice. A lack of
resources exists in assisting these victims in filing and litigating
their claims. Expenses associated with civil litigation can be exorbi-
tant, and some private law firms are reluctant to take on these cases
unless they occurred in institutional settings where defendants have
greater assets that can be recouped in the form of damages through civil
litigation.
The intent of the Child Victims Act was to give survivors their day in
court, regardless of who their abuser was. This legislation establishes
a fund to assist not-for-profits who are providing civil legal services
on behalf of these victims, and those victims who will come forward in
the future. The Child Victim Foundation Fund, comprised of monies
donated by taxpayers, and fines assessed against persons convicted of
enumerated offenses against children, will help to ensure that all those
who seek justice can have their day in court.
PRIOR LEGISLATIVE HISTORY:
2019-20: S6847 (Gaughran) / A9009 (Lavine) - Budget and Revenue / ways
and means
2020-21: S1088-A (Gaughran) / A1210-A (Lavine) - Budget and Revenue /
ways and means
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None to the state.
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to taxable years
commencing on or after January 1, 2023, provided that the amendments to
subdivision 5 of section 60.35 of the penal law shall be subject to
reversion of such subdivision pursuant to section 74 of chapter 3 of the
laws of 1995, as amended, when upon such date the provisions of section
four of this act shall take effect.
STATE OF NEW YORK
________________________________________________________________________
2358
2023-2024 Regular Sessions
IN ASSEMBLY
January 25, 2023
___________
Introduced by M. of A. LAVINE -- read once and referred to the Committee
on Ways and Means
AN ACT to amend the tax law, the penal law and the state finance law, in
relation to establishing the child victim foundation fund and imple-
menting a supplemental child victim fee
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The tax law is amended by adding a new section 209-q to
2 read as follows:
3 § 209-q. Gift for the child victim foundation fund. Effective for any
4 tax year commencing on or after January first, two thousand twenty-four,
5 a taxpayer in any taxable year may elect to contribute to the support of
6 the child victim foundation fund. Such contribution shall be in any
7 whole dollar amount and shall not reduce the amount of the state tax
8 owed by such taxpayer. The commissioner shall include space on the
9 corporate income tax return to enable a taxpayer to make such contrib-
10 ution. Notwithstanding any other provision of law, all revenues
11 collected pursuant to this section shall be credited to the child victim
12 foundation fund and shall be used only for the purposes enumerated in
13 section ninety-nine-r of the state finance law.
14 § 2. The tax law is amended by adding a new section 630-l to read as
15 follows:
16 § 630-l. Gift for the child victim foundation fund. Effective for any
17 tax year commencing on or after January first, two thousand twenty-four,
18 a taxpayer in any taxable year may elect to contribute to the support of
19 the child victim foundation fund. Such contribution shall be in any
20 whole dollar amount and shall not reduce the amount of the state tax
21 owed by such taxpayer. The commissioner shall include space on the
22 personal income tax return to enable a taxpayer to make such contrib-
23 ution. Notwithstanding any other provision of law, all revenues
24 collected pursuant to this section shall be credited to the child victim
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02705-02-3
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1 foundation fund and shall be used only for the purposes enumerated in
2 section ninety-nine-r of the state finance law.
3 § 3. Section 60.35 of the penal law, as amended by section 1 of part E
4 of chapter 56 of the laws of 2004, subparagraphs (i), (ii) and (iii) of
5 paragraph (a) of subdivision 1 as amended by section 1 of part DD of
6 chapter 56 of the laws of 2008, paragraph (b) of subdivision 1 as
7 amended by chapter 320 of the laws of 2006, subdivision 4 as amended by
8 chapter 525 of the laws of 2013, paragraph (a) of subdivision 5 as
9 amended by section 103 of chapter 322 of the laws of 2021, and subdivi-
10 sion 8 as amended by section 121 of subpart B of part C of chapter 62 of
11 the laws of 2011, is amended to read as follows:
12 § 60.35 Mandatory surcharge, sex offender registration fee, DNA databank
13 fee, supplemental sex offender victim fee, supplemental child
14 victim fee and crime victim assistance fee required in certain
15 cases.
16 1. (a) Except as provided in section eighteen hundred nine of the
17 vehicle and traffic law and section 27.12 of the parks, recreation and
18 historic preservation law, whenever proceedings in an administrative
19 tribunal or a court of this state result in a conviction for a felony, a
20 misdemeanor, or a violation, as these terms are defined in section 10.00
21 of this chapter, there shall be levied at sentencing a mandatory
22 surcharge, sex offender registration fee, DNA databank fee and a crime
23 victim assistance fee in addition to any sentence required or permitted
24 by law, in accordance with the following schedule:
25 (i) a person convicted of a felony shall pay a mandatory surcharge of
26 three hundred dollars and a crime victim assistance fee of twenty-five
27 dollars;
28 (ii) a person convicted of a misdemeanor shall pay a mandatory
29 surcharge of one hundred seventy-five dollars and a crime victim assist-
30 ance fee of twenty-five dollars;
31 (iii) a person convicted of a violation shall pay a mandatory
32 surcharge of ninety-five dollars and a crime victim assistance fee of
33 twenty-five dollars;
34 (iv) a person convicted of a sex offense as defined by subdivision two
35 of section one hundred sixty-eight-a of the correction law or a sexually
36 violent offense as defined by subdivision three of section one hundred
37 sixty-eight-a of the correction law shall, in addition to a mandatory
38 surcharge and crime victim assistance fee, pay a sex offender registra-
39 tion fee of fifty dollars.
40 (v) a person convicted of a designated offense as defined by subdivi-
41 sion seven of section nine hundred ninety-five of the executive law
42 shall, in addition to a mandatory surcharge and crime victim assistance
43 fee, pay a DNA databank fee of fifty dollars.
44 (b) When the felony or misdemeanor conviction in subparagraphs (i),
45 (ii) or (iv) of paragraph (a) of this subdivision results from an
46 offense contained in article one hundred thirty of this chapter, incest
47 in the third, second or first degree as defined in sections 255.25,
48 255.26 and 255.27 of this chapter or an offense contained in article two
49 hundred sixty-three of this chapter, the person convicted shall pay a
50 supplemental sex offender victim fee of one thousand dollars in addition
51 to the mandatory surcharge and any other fee.
52 (c) When the felony or misdemeanor conviction in subparagraphs (i),
53 (ii) or (iv) of paragraph (a) of this subdivision results from an
54 offense defined by subdivision two of section one hundred sixty-eight-a
55 of the correction law, a sexually motivated violent offense as defined
56 by subdivision three of section one hundred sixty-eight-a of the
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1 correction law, any offense contained in article one hundred thirty of
2 this chapter, incest in the third, second or first degree as defined in
3 sections 255.25, 255.26 and 255.27 of this chapter, or an offense
4 contained in article two hundred sixty-three of this chapter, and the
5 person against whom the crime was committed was under the age of eigh-
6 teen at the time of the criminal act, the person convicted shall pay a
7 supplemental child victim fee of one thousand dollars in addition to the
8 mandatory surcharge and any other fee or supplemental fee.
9 2. Where a person is convicted of two or more crimes or violations
10 committed through a single act or omission, or through an act or omis-
11 sion which in itself constituted one of the crimes or violations and
12 also was a material element of the other, the court shall impose a
13 mandatory surcharge and a crime victim assistance fee, and where appro-
14 priate a supplemental sex offender victim fee and a supplemental child
15 victim fee, in accordance with the provisions of this section for the
16 crime or violation which carries the highest classification, and no
17 other sentence to pay a mandatory surcharge, crime victim assistance fee
18 [or], supplemental sex offender victim fee or a supplemental child
19 victim fee required by this section shall be imposed. Where a person is
20 convicted of two or more sex offenses or sexually violent offenses, as
21 defined by subdivisions two and three of section one hundred sixty-
22 eight-a of the correction law, committed through a single act or omis-
23 sion, or through an act or omission which in itself constituted one of
24 the offenses and also was a material element of the other, the court
25 shall impose only one sex offender registration fee, and only one
26 supplemental child victim fee. Where a person is convicted of two or
27 more designated offenses, as defined by subdivision seven of section
28 nine hundred ninety-five of the executive law, committed through a
29 single act or omission, or through an act or omission which in itself
30 constituted one of the offenses and also was a material element of the
31 other, the court shall impose only one DNA databank fee.
32 3. The mandatory surcharge, sex offender registration fee, DNA data-
33 bank fee, crime victim assistance fee, [and] supplemental sex offender
34 victim fee, and supplemental child victim fee provided for in subdivi-
35 sion one of this section shall be paid to the clerk of the court or
36 administrative tribunal that rendered the conviction. Within the first
37 ten days of the month following collection of the mandatory surcharge,
38 crime victim assistance fee, [and] supplemental sex offender victim fee,
39 and supplemental child victim fee, the collecting authority shall deter-
40 mine the amount of mandatory surcharge, crime victim assistance fee, and
41 supplemental sex offender victim fee collected and, if it is an adminis-
42 trative tribunal, or a town or village justice court, it shall then pay
43 such money to the state comptroller who shall deposit such money in the
44 state treasury pursuant to section one hundred twenty-one of the state
45 finance law to the credit of the criminal justice improvement account
46 established by section ninety-seven-bb of the state finance law. Within
47 the first ten days of the month following collection of the sex offender
48 registration fee and DNA databank fee, the collecting authority shall
49 determine the amount of the sex offender registration fee and DNA data-
50 bank fee collected and, if it is an administrative tribunal, or a town
51 or village justice court, it shall then pay such money to the state
52 comptroller who shall deposit such money in the state treasury pursuant
53 to section one hundred twenty-one of the state finance law to the credit
54 of the general fund. If such collecting authority is any other court of
55 the unified court system, it shall, within such period, pay such money
56 attributable to the mandatory surcharge or crime victim assistance fee
A. 2358 4
1 to the state commissioner of taxation and finance to the credit of the
2 criminal justice improvement account established by section ninety-sev-
3 en-bb of the state finance law. If such collecting authority is any
4 other court of the unified court system, it shall, within such period,
5 pay such money attributable to the sex offender registration fee and the
6 DNA databank fee to the state commissioner of taxation and finance to
7 the credit of the general fund.
8 4. Any person who has paid a mandatory surcharge, sex offender regis-
9 tration fee, DNA databank fee, a crime victim assistance fee or a
10 supplemental sex offender victim fee under the authority of this section
11 based upon a conviction that is subsequently reversed or who paid a
12 mandatory surcharge, sex offender registration fee, DNA databank fee, a
13 crime victim assistance fee or supplemental sex offender victim fee
14 under the authority of this section which is ultimately determined not
15 to be required by this section shall be entitled to a refund of such
16 mandatory surcharge, sex offender registration fee, DNA databank fee,
17 crime victim assistance fee or supplemental sex offender victim fee upon
18 application, in the case of a town or village court, to the state comp-
19 troller. The state comptroller shall require such proof as is necessary
20 in order to determine whether a refund is required by law. In all other
21 cases, such application shall be made to the department, agency or court
22 that collected such surcharge or fee. Such department, agency or court
23 shall initiate the refund process and the state comptroller shall pay
24 the refund pursuant to subdivision fifteen of section eight of the state
25 finance law.
26 5. (a) When a person who is convicted of a crime or violation and
27 sentenced to a term of imprisonment has failed to pay the mandatory
28 surcharge, sex offender registration fee, DNA databank fee, crime victim
29 assistance fee [or], supplemental sex offender victim fee or supple-
30 mental child victim fee required by this section, the clerk of the court
31 that rendered the conviction shall notify the superintendent or the
32 municipal official of the facility where the person is confined. The
33 superintendent or the municipal official shall cause any amount owing to
34 be collected from such person during his or her term of imprisonment
35 from moneys to the credit of an incarcerated individuals' fund or such
36 moneys as may be earned by a person in a work release program pursuant
37 to section eight hundred sixty of the correction law. Such moneys
38 attributable to the mandatory surcharge or crime victim assistance fee
39 shall be paid over to the state comptroller to the credit of the crimi-
40 nal justice improvement account established by section ninety-seven-bb
41 of the state finance law, such moneys attributable to the supplemental
42 child victim fee shall be paid over to the state comptroller to the
43 credit of the child victim foundation fund established by section nine-
44 ty-nine-r of the state finance law and such moneys attributable to the
45 sex offender registration fee or DNA databank fee shall be paid over to
46 the state comptroller to the credit of the general fund, except that any
47 such moneys collected which are surcharges, sex offender registration
48 fees, DNA databank fees, crime victim assistance fees or supplemental
49 sex offender victim fees levied in relation to convictions obtained in a
50 town or village justice court shall be paid within thirty days after the
51 receipt thereof by the superintendent or municipal official of the
52 facility to the justice of the court in which the conviction was
53 obtained. For the purposes of collecting such mandatory surcharge, sex
54 offender registration fee, DNA databank fee, crime victim assistance
55 fee, [and] supplemental sex offender victim fee, and supplemental child
56 victim fee, the state shall be legally entitled to the money to the
A. 2358 5
1 credit of an incarcerated individuals' fund or money which is earned by
2 an incarcerated individual in a work release program. For purposes of
3 this subdivision, the term "incarcerated individuals' fund" shall mean
4 moneys in the possession of an incarcerated individual at the time of
5 his or her admission into such facility, funds earned by him or her as
6 provided for in section one hundred eighty-seven of the correction law
7 and any other funds received by him or her or on his or her behalf and
8 deposited with such superintendent or municipal official.
9 (b) The incarceration fee provided for in subdivision two of section
10 one hundred eighty-nine of the correction law shall not be assessed or
11 collected if any order of restitution or reparation, fine, mandatory
12 surcharge, sex offender registration fee, DNA databank fee, crime victim
13 assistance fee [or], supplemental sex offender victim fee or supple-
14 mental child victim fee remains unpaid. In such circumstances, any
15 monies which may lawfully be withheld from the compensation paid to a
16 prisoner for work performed while housed in a general confinement facil-
17 ity in satisfaction of such an obligation shall first be applied toward
18 satisfaction of such obligation.
19 6. Notwithstanding any other provision of this section, where a person
20 has made restitution or reparation pursuant to section 60.27 of this
21 article, such person shall not be required to pay a mandatory surcharge
22 or a crime victim assistance fee.
23 7. Notwithstanding the provisions of subdivision one of section 60.00
24 of this article, the provisions of subdivision one of this section shall
25 not apply to a violation under any law other than this chapter.
26 8. Subdivision one of section 130.10 of the criminal procedure law
27 notwithstanding, at the time that the mandatory surcharge, sex offender
28 registration fee or DNA databank fee, crime victim assistance fee [or],
29 supplemental sex offender victim fee or supplemental child victim fee is
30 imposed a town or village court may, and all other courts shall, issue
31 and cause to be served upon the person required to pay the mandatory
32 surcharge, sex offender registration fee or DNA databank fee, crime
33 victim assistance fee [or], supplemental sex offender victim fee or
34 supplemental child victim fee, a summons directing that such person
35 appear before the court regarding the payment of the mandatory
36 surcharge, sex offender registration fee or DNA databank fee, crime
37 victim assistance fee [or], supplemental sex offender victim fee or
38 supplemental child victim fee, if after sixty days from the date it was
39 imposed it remains unpaid. The designated date of appearance on the
40 summons shall be set for the first day court is in session falling after
41 the sixtieth day from the imposition of the mandatory surcharge, sex
42 offender registration fee or DNA databank fee, crime victim assistance
43 fee [or], supplemental sex offender victim fee or supplemental child
44 victim fee. The summons shall contain the information required by
45 subdivision two of section 130.10 of the criminal procedure law except
46 that in substitution for the requirement of paragraph (c) of such subdi-
47 vision the summons shall state that the person served must appear at a
48 date, time and specific location specified in the summons if after sixty
49 days from the date of issuance the mandatory surcharge, sex offender
50 registration fee or DNA databank fee, crime victim assistance fee [or],
51 supplemental sex offender victim fee or supplemental child victim fee
52 remains unpaid. The court shall not issue a summons under this subdivi-
53 sion to a person who is being sentenced to a term of confinement in
54 excess of sixty days in jail or in the department of corrections and
55 community supervision. The mandatory surcharges, sex offender registra-
56 tion fee and DNA databank fees, crime victim assistance fees [and],
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1 supplemental sex offender victim fees and supplemental child victim fees
2 for those persons shall be governed by the provisions of section 60.30
3 of this article.
4 9. Notwithstanding the provisions of subdivision one of this section,
5 in the event a proceeding is in a town or village court, such court
6 shall add an additional five dollars to the surcharges imposed by such
7 subdivision one.
8 § 4. Subdivision 5 of section 60.35 of the penal law, as amended by
9 section 103-a of chapter 322 of the laws of 2021, is amended to read as
10 follows:
11 5. When a person who is convicted of a crime or violation and
12 sentenced to a term of imprisonment has failed to pay the mandatory
13 surcharge, sex offender registration fee, DNA databank fee, crime victim
14 assistance fee [or], supplemental sex offender victim fee or supple-
15 mental child victim fee required by this section, the clerk of the court
16 that rendered the conviction shall notify the superintendent or the
17 municipal official of the facility where the person is confined. The
18 superintendent or the municipal official shall cause any amount owing to
19 be collected from such person during his or her term of imprisonment
20 from moneys to the credit of an incarcerated individuals' fund or such
21 moneys as may be earned by a person in a work release program pursuant
22 to section eight hundred sixty of the correction law. Such moneys
23 attributable to the mandatory surcharge or crime victim assistance fee
24 shall be paid over to the state comptroller to the credit of the crimi-
25 nal justice improvement account established by section ninety-seven-bb
26 of the state finance law, such moneys attributable to the supplemental
27 child victim fee shall be paid over to the state comptroller to the
28 credit of the child victim foundation fund established by section nine-
29 ty-nine-r of the state finance law and such moneys attributable to the
30 sex offender registration fee or DNA databank fee shall be paid over to
31 the state comptroller to the credit of the general fund, except that any
32 such moneys collected which are surcharges, sex offender registration
33 fees, DNA databank fees, crime victim assistance fees or supplemental
34 sex offender victim fees levied in relation to convictions obtained in a
35 town or village justice court shall be paid within thirty days after the
36 receipt thereof by the superintendent or municipal official of the
37 facility to the justice of the court in which the conviction was
38 obtained. For the purposes of collecting such mandatory surcharge, sex
39 offender registration fee, DNA databank fee, crime victim assistance fee
40 [and], supplemental sex offender victim fee and supplemental child
41 victim fee, the state shall be legally entitled to the money to the
42 credit of an incarcerated individuals' fund or money which is earned by
43 an incarcerated individual in a work release program. For purposes of
44 this subdivision, the term "incarcerated individuals' fund" shall mean
45 moneys in the possession of an incarcerated individual at the time of
46 his or her admission into such facility, funds earned by him or her as
47 provided for in section one hundred eighty-seven of the correction law
48 and any other funds received by him or her or on his or her behalf and
49 deposited with such superintendent or municipal official.
50 § 5. The state finance law is amended by adding a new section 99-r to
51 read as follows:
52 § 99-r. Child victim foundation fund. 1. There is hereby established
53 in the joint custody of the commissioner of taxation and finance, the
54 comptroller, and the commissioner of the division of criminal justice
55 services, a special fund to be known as the "child victim foundation
A. 2358 7
1 fund". Monies in the fund shall be kept separate from and not commingled
2 with other funds.
3 2. Such funds shall consist of the revenues received by the department
4 of taxation and finance, pursuant to the provisions of sections two
5 hundred nine-q and six hundred thirty-l of the tax law, revenues
6 received from the supplemental child victim fee pursuant to the
7 provisions of section 60.35 of the penal law, and all other moneys
8 appropriated, credited, or transferred thereto from any other fund or
9 source pursuant to law. Nothing contained in this section shall prevent
10 the state from receiving grants, gifts, or bequests for the purpose of
11 the fund as defined in this section and depositing them into the fund
12 according to law.
13 3. On or before the first day of February each year, the commissioner
14 of the division of criminal justice services shall provide a written
15 report to the temporary president of the senate, the speaker of the
16 assembly, the chair of the senate finance committee, the chair of the
17 assembly ways and means committee, the comptroller, and the public. Such
18 report shall include how the monies of the fund were utilized during the
19 preceding calendar year, and shall include:
20 (i) the amount of money disbursed from the fund and the award process
21 for such disbursement;
22 (ii) recipients of awards from the fund;
23 (iii) the amount awarded to each recipient;
24 (iv) the purpose for which such awards were granted; and
25 (v) a summary financial plan for such monies which shall include esti-
26 mates of all receipts and all disbursements for the current and succeed-
27 ing fiscal years, along with the actual results from the prior fiscal
28 year.
29 4. Monies of the fund shall be expended only to not-for-profit organ-
30 izations providing civil legal services to victims of childhood sexual
31 abuse.
32 5. Monies shall be payable from the fund on the audit and warrant of
33 the comptroller on vouchers approved and certified by the commissioner
34 of the division of criminal justice services.
35 6. To the extent practicable, the commissioner of the division of
36 criminal justice services shall ensure that all monies received during a
37 fiscal year are expended prior to the end of that fiscal year.
38 § 6. This act shall take effect immediately and shall apply to taxable
39 years commencing on or after January 1, 2024, provided that the amend-
40 ments to subdivision 5 of section 60.35 of the penal law made by section
41 three of this act shall be subject to the expiration and reversion of
42 such subdivision pursuant to section 74 of chapter 3 of the laws of
43 1995, as amended, when upon such date the provisions of section four of
44 this act shall take effect.
