Amd §§80.00, 80.05 & 60.35, Pen L; add §94-c, St Fin L
Increases the mandatory surcharge and the crime victim's assistance fee which is levied upon any person convicted of a crime or violation in this state; creates a crime victim's lien which allows such recovery against a convicted offender in the amount of the unpaid portion of the mandatory surcharge or the crime victim's assistance fee; creates a crime victim's assistance account.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5318
SPONSOR: DiPietro TITLE OF BILL: An act to amend the penal law and the state finance
law, in relation to increasing the crime victim's assistance fee, creat-
ing a crime victim's lien and creating a crime victim's assistance
account
PURPOSE OR GENERAL IDEA OF BILL:
This bill would increase the mandatory surcharge and the crime victims'
assistance fee which is levied upon any persons convicted of a crime or
violation in New York State. It would also authorize the State to
recover any unpaid portion of such a surcharge and/or fee from monies
awarded to inmates pursuant to litigation or settlement of litigation.
Such recovery would be obtained through the execution of a crime
victim's lien, against a convicted offender, in the amount of the unpaid
portion of the mandatory surcharge or crime victim's assistance fee.
SUMMARY OF SPECIFIC PROVISIONS:
Sections 1 and 2: This bill would add a new subdivision 7 to articles
80.00 and 80.05 of the penal law, to provide that the term "fine", as
defined in article 80.00 and 80.05, does not include a mandatory
surcharge or a crime victim's assistance fee, as defined in section
60.35.
Section 3: This bill would also amend subdivision 1 of article 60.35 of
the penal law, to increase the amount of the mandatory surcharge and the
crime victim's assistance fee as follows:
CRIME OLD NEW OLD CRIME VICTIM'S NEW CRIME
MANDATORY MANDATORY ASSISTANCE FEE VICTIM'S
SURCHARGE SURCHARGE ASSISTANCE FEE
Homicide $150.00 $500.00 $5.00 $2,500.00 for
every month
of which such
convicted
person is
sentenced to
serve time in
a correctional
facility.
Violent $150.00 $250.00 $5.00 $1,000.00 for
Felony every month
of
which such
person is
sentenced to
serve time
in a
correctional
facility.
Any Other $150.00 $250.00 $5.00 $500.00
Felony
Misde- $85.00 $150.00 $5.00 $250.00
meanor
Violation $40.00 $50.00 $5.00 $100.00
Subdivision 2: Subdivision 2 of section 60.35 of the penal law would
remain unchanged by this bill and would still provide that when a person
is convicted of two or more crimes or violations committed through a
single act or omission, the court shall impose a mandatory surcharge and
crime victim's assistance fee for the crime or violation which carries
the highest classification, and no other or additional sentence to pay a
mandatory surcharge or crime victim's assistance shall be imposed.
Subdivisions 3 and 4: This bill would amend subdivision 3 and would add
a new subdivision 4 to article 60.35 of the penal law, to establish
procedures for payment of the mandatory surcharge and the crime victim's
assistance fee, respectively. These procedures would provide for a fee
calculation by, and payment to, the court clerk; the collection by the
court; and the payment of the mandatory surcharge or crime victim's
assistance fee to the State Comptroller or the State Commissioner of
Taxation and Finance, depending on the court. In the case of a mandatory
surcharge, the monies so collected would be credited to the Criminal
Justice Improvement Account. While in the case of the crime victim's
assistance fee, the monies so collected would be credited to the Crime
Victim's Assistance Account.
Subdivision 5: A new subdivision 5 would be added to article 60.35 of
the penal law by this bill, to enumerate who is to be considered a crime
victim and to provide for the creation of a crime victim's list by the
court clerk. Such list would include:
1) The convicted offender's name;
2) The offenses for which he or she was convicted; and
3) The name and address of every individual who the court deems to have
been a victim of the crime or crimes for which the convicted offender
was convicted.
This subdivision would also require that the court must file the list
with the Attorney General and that such list would be sealed from public
inspection so as to protect the identities of the crime victims.
Subdivision 6: Under this bill, the present subdivision 4 of article
60.35 of the penal law would be renumbered as subdivision 6. Such subdi-
vision provides for refund procedures for those who have their
conviction subsequently reversed, or who unnecessarily have paid the
mandatory surcharge or crime victim's assistance fee.
Subdivision 7: This bill would also renumber the present subdivision 5
of article 60.35 of the penal law to subdivision 7. This subdivision
would thereupon establish procedures to be followed in the event that a
person convicted of a crime or violation, and sentenced to a term of
imprisonment, has failed to pay the mandatory surcharge or crime
victim's assistance fee. This subdivision would also be amended by this
bill to provide for a new source for collection of an unpaid mandatory
surcharge or crime victim's assistance fee by including awards made to
inmates pursuant to litigation or settlement of litigation.
Subdivision 8: This bill would further add a new subdivision 8 to
section 60.35 of the penal law, to establish the State's right to file a
crime victim's lien against a convicted offender for the purposes of
collecting such mandatory surcharge or crime victim's assistance fee.
Specific provisions regarding the creation and execution of a crime
victim's lien are also set forth in this subdivision.
Subdivision 9: A new subdivision 9 would also be added by this bill to
establish the delivery, payment and credit procedures for all moneys
collected pursuant to the enforcement and execution of the State's crime
victim's lien against a convicted offender.
Subdivision 10: The subdivision currently designated as subdivision 6 of
section 60.35 would be renumbered as subdivision 10 under this bill.
Such subdivision would also be amended to provide discretion to a court
to determine whether a mandatory surcharge or crime victim assistance
fee should be imposed if the convicted offender makes restitution to the
crime victim.
Subdivision 11: This bill would additionally renumber subdivision 7 of
section 60.35 of the penal law as subdivision 11, which would otherwise
remain unchanged.
Section 4: This bill would also add a new section 97-xx to the State
Finance Law, to establish and create the Crime Victim's Assistance
Account. This account would be a special revenue fund in the joint
custody of the State Comptroller and the Attorney General, and would
consist of all moneys received by the state pursuant to section 60.35 of
the penal law as well as other funds.
Pursuant to this bill, the moneys in the Crime Victim's Assistance
Account, subject to express allocation limits, could be expended for:
1) Compensation payments to crime victims and their families;
2) State operations expenses and local assistance services to provide
services to crime victims and witnesses; and
3) Grants and expenses to private associations, services and programs
which provide services to crime victims and witnesses.
This bill would further provide that once monies are collected from a
convicted offender for the payment of a crime victim's assistance fee or
mandatory surcharge, and such monies are deposited into the Crime
Victim's Assistance Account by the Comptroller, a crime victim set forth
on the crime victim's list for the convicted offender shall be eligible
to apply to the Attorney General for crime victim's assistance. The
Attorney General, pursuant to this bill, would upon such application
marshal certain information and certify to the Comptroller whether such
applicant is eligible to receive crime victim's assistance. Guidelines
for certification and amounts of payments would also be established
under this bill.
Section 5: This bill would lastly provide that this act shall take
effect on the ninetieth day after it shall have become a law and shall
apply to all convictions occurring on or after such date.
JUSTIFICATION:
The focus of the criminal justice system is too often skewed toward the
rights of the offender, without focusing at all on restitution for the
crime victim. One result of this misplaced emphasis is that once an
offender is convicted and sentenced to imprisonment, the suffering crime
victim gains nothing more than an ephemeral reward. The effect of a
crime is often not just limited to a victim's feelings of vulnerability
or pain, but there is also quite frequently a practical, economic effect
as well.
Under the present law, a crime victim is rarely compensated for losses
incurred as a result of the suffering experienced due to the commission
of the crime. This bill would seek to redress this fact, by retooling a
small part of the criminal justice system, to establish procedures to
recompense crime victims and their families with funds obtained from the
convicted offender.
These payments, which would permit the convicted offender to make real
restitution, would result in a victim receiving a stronger, more inte-
grated and effective response from the criminal justice system and the
state. In addition to direct payments to crime victims, which will be
the majority of payments made from the Crime Victim's Assistance
Account, funds from the Crime Victim's Assistance Account would also be
provided to support programs and services for crime victims and
witnesses.
In light of the vast sums expended upon convicted offenders by the
state, it is just and proper to ensure that convicted offenders also
must expend some of their resources to support programs and services
that assist crime victims and their needs. Thus, some positive effect
may be achieved from these tragedies, as funds obtained from convicted
offenders can now benefit all crime victims, including those who were
victims of crimes for which no one was convicted.
This bill would reestablish the criminal justice system's focus on crime
victims and their needs. It would put society's priorities in the right
perspective and seek to address the myriad costs of crime in our society
in an efficient, fair and equitable manner.
LEGISLATIVE HISTORY:
A3716 of 2015-16
A6493 of 2013-14
A7286 of 2011-12
A6571 of 2009-10
A5014 of 2007-08
A6323 of 2005-06
A3653 of 2003-04
A4473 of 2001-02
A4265 of 1999-00
A6309 of 1997-98
FISCAL IMPLICATIONS:
Moneys collected by the state due to levies of a mandatory surcharge or
a crime victim's assistance fee upon convicted offenders are likely to
increase in the aggregate.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law and shall apply to all convictions occurring on or after
such date.
