Relates to creating a civil course of action to recover the value of any benefit received from any retirement system by an elected official convicted of certain felonies; defines proceeds of a violation of the public trust and post conviction forfeiture crime involving an elected official.
STATE OF NEW YORK
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3152
2015-2016 Regular Sessions
IN SENATE
February 3, 2015
___________
Introduced by Sen. CARLUCCI -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the civil practice law and rules, in relation to creat-
ing a civil course of action to recover the value of any benefit
received from any public retirement system or retirement plan by an
elected official who has been convicted of certain felonies
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 1310 of the civil practice law and rules is amended
2 by adding a new subdivision 2-a to read as follows:
3 2-a. "Proceeds of a violation of the public trust" means an amount
4 equivalent to the monetary value of any benefit received from any public
5 retirement system or retirement plan by an elected official who has
6 committed a felony crime as defined in subdivision 5-a of this section.
7 § 2. Section 1310 of the civil practice law and rules is amended by
8 adding a new subdivision 5-a to read as follows:
9 5-a. "Post-conviction forfeiture crime involving an elected official"
10 means:
11 (a) any felony for committing, aiding or abetting a larceny of public
12 funds from the state or a municipality;
13 (b) any felony committed in direct connection with service as an
14 elected official; or
15 (c) any felony committed by such person who, with the intent to
16 defraud, realizes or obtains, or attempts to realize or obtain, a
17 profit, gain or advantage for himself or herself or for some other
18 person, through the use or attempted use of the power, rights, privi-
19 leges or duties of his or her position as an elected official.
20 § 3. The opening paragraph of subdivision 1 of section 1311 of the
21 civil practice law and rules, as amended by chapter 655 of the laws of
22 1990, is amended to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08321-01-5
S. 3152 2
1 A civil action may be commenced by the appropriate claiming authority
2 against a criminal defendant to recover the property which constitutes
3 the proceeds of a crime, the substituted proceeds of a crime, an instru-
4 mentality of a crime or the real property instrumentality of a crime or
5 to recover a money judgment in an amount equivalent in value to the
6 property which constitutes the proceeds of a crime, the substituted
7 proceeds of a crime, an instrumentality of a crime, or the real property
8 instrumentality of a crime. A civil action may be commenced by the
9 appropriate claiming authority against an elected official to recover a
10 money judgment which constitutes the proceeds of a violation of the
11 public trust. A civil action may be commenced against a non-criminal
12 defendant to recover the property which constitutes the proceeds of a
13 crime, the substituted proceeds of a crime, an instrumentality of a
14 crime, or the real property instrumentality of a crime provided, howev-
15 er, that a judgment of forfeiture predicated upon clause (A) of subpara-
16 graph (iv) of paragraph (b) of subdivision three hereof shall be limited
17 to the amount of the proceeds of the crime. Any action under this arti-
18 cle must be commenced within five years of the commission of the crime
19 and shall be civil, remedial, and in personam in nature and shall not be
20 deemed to be a penalty or criminal forfeiture for any purpose. Except as
21 otherwise specially provided by statute, the proceedings under this
22 article shall be governed by this chapter. An action under this article
23 is not a criminal proceeding and may not be deemed to be a previous
24 prosecution under article forty of the criminal procedure law. An action
25 under this article against an elected official who is not subject to the
26 provisions of article 3-B of the retirement and social security law
27 shall not in any way be deemed to impede or impair any rights or privi-
28 leges afforded to such elected official as a member of any public
29 retirement system or retirement plan.
30 § 4. Subdivision 1 of section 1311 of the civil practice law and rules
31 is amended by adding a new paragraph (a-1) to read as follows:
32 (a-1) Actions relating to post-conviction forfeiture crimes involving
33 elected officials. An action relating to a post-conviction forfeiture
34 crime involving an elected official must be grounded upon a conviction
35 of a felony defined in subdivision five-a of section one thousand three
36 hundred ten of this article, or upon criminal activity arising from a
37 common scheme or plan of which such a conviction is a part, or upon a
38 count of an indictment or information alleging a felony which was
39 dismissed at the time of a plea of guilty to a felony in satisfaction of
40 such count. A court may not grant forfeiture until such conviction has
41 occurred. However, an action may be commenced, and a court may grant a
42 provisional remedy provided under this article, prior to such conviction
43 having occurred. An action under this paragraph must be dismissed at any
44 time after sixty days of the commencement of the action unless the
45 conviction upon which the action is grounded has occurred, or an indict-
46 ment or information upon which the asserted conviction is to be based is
47 pending in a superior court. An action under this paragraph shall be
48 stayed during the pendency of a criminal action which is related to it;
49 provided, however, that such stay shall not prevent the granting or
50 continuance of any provisional remedy provided under this article or any
51 other provisions of law.
52 § 5. This act shall take effect immediately.
