Relates to preventing defendants from making any profit from their crimes; includes instances where defendant pleads not responsible by reason of mental disease or defect.
STATE OF NEW YORK
________________________________________________________________________
4393--A
2011-2012 Regular Sessions
IN SENATE
April 4, 2011
___________
Introduced by Sens. FLANAGAN, DeFRANCISCO, GOLDEN, LARKIN, MAZIARZ,
RANZENHOFER -- read twice and ordered printed, and when printed to be
committed to the Committee on Crime Victims, Crime and Correction --
recommitted to the Committee on Crime Victims, Crime and Correction in
accordance with Senate Rule 6, sec. 8 -- reported favorably from said
committee and committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the executive law, in relation to a defendant profiting
from his or her crime
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 1 and 2 of section 632-a of the executive law,
2 as amended by section 24 of part A-1 of chapter 56 of the laws of 2010,
3 paragraph (c) of subdivision 1 as amended by section 100 and the opening
4 paragraph of paragraph (b) of subdivision 2 as amended by section 101 of
5 subpart B of part C of chapter 62 of the laws of 2011, are amended to
6 read as follows:
7 1. For the purposes of this section:
8 (a) "Crime" means (i) any felony defined in the laws of the state; or
9 (ii) an offense in any jurisdiction which includes all of the essential
10 elements of any felony defined in the laws of this state and: (A) the
11 crime victim, as defined in subparagraph (i) of paragraph (d) of this
12 subdivision, was a resident of this state at the time of the commission
13 of the offense; or (B) the act or acts constituting the offense occurred
14 in whole or in part in this state.
15 (b) "Profits from a crime" means (i) any property obtained through or
16 income generated from the commission of a crime of which the defendant
17 was convicted or found, or the court accepts a plea of, not responsible
18 by reason of mental disease or defect; (ii) any property obtained by or
19 income generated from the sale, conversion or exchange of proceeds of a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10480-06-2
S. 4393--A 2
1 crime, including any gain realized by such sale, conversion or exchange;
2 and (iii) any property which the defendant obtained or income generated
3 as a result of having committed the crime, including any assets obtained
4 through the use of unique knowledge obtained during the commission of,
5 or in preparation for the commission of, a crime, as well as any proper-
6 ty obtained by or income generated from the sale, conversion or exchange
7 of such property and any gain realized by such sale, conversion or
8 exchange.
9 (c) "Funds of a convicted person" means all funds and property
10 received from any source by a person convicted of a specified crime, or
11 found, or the court accepts a plea of, not responsible by reason of
12 mental disease or defect or by the representative of such person as
13 defined in subdivision six of section six hundred twenty-one of this
14 article excluding child support and earned income, where such person:
15 (i) is an inmate serving a sentence with the department of corrections
16 and community supervision or a prisoner confined at a local correctional
17 facility or federal correctional institute, and includes funds that a
18 superintendent, sheriff or municipal official receives on behalf of an
19 inmate or prisoner and deposits in an inmate account to the credit of
20 the inmate pursuant to section one hundred sixteen of the correction law
21 or deposits in a prisoner account to the credit of the prisoner pursuant
22 to section five hundred-c of the correction law; or
23 (ii) is not an inmate or prisoner but who is serving a sentence of
24 probation or conditional discharge or is presently subject to an undisc-
25 harged indeterminate, determinate or definite term of imprisonment or
26 period of post-release supervision or term of supervised release, but
27 shall include earned income earned during a period in which such person
28 was not in compliance with the conditions of his or her probation,
29 parole, conditional release, period of post-release supervision by the
30 department of corrections and community supervision or term of super-
31 vised release with the United States probation office or United States
32 parole commission. For purposes of this subparagraph, such period of
33 non-compliance shall be measured, as applicable, from the earliest date
34 of delinquency determined by the department of corrections and community
35 supervision, or from the earliest date on which a declaration of delin-
36 quency is filed pursuant to section 410.30 of the criminal procedure law
37 and thereafter sustained, or from the earliest date of delinquency
38 determined in accordance with applicable federal law, rules or regu-
39 lations, and shall continue until a final determination sustaining the
40 violation has been made by the trial court, the department of
41 corrections and community supervision, or appropriate federal authority;
42 or
43 (iii) is no longer subject to a sentence of probation or conditional
44 discharge or indeterminate, determinate or definite term of imprisonment
45 or period of post-release supervision or term of supervised release, and
46 where within the previous three years: the full or maximum term or peri-
47 od terminated or expired or such person was granted a discharge by the
48 state board of parole or the department of corrections and community
49 supervision pursuant to applicable law, or granted a discharge or termi-
50 nation from probation pursuant to applicable law or granted a discharge
51 or termination under applicable federal or state law, rules or regu-
52 lations prior to the expiration of such full or maximum term or period;
53 and includes only: (A) those funds paid to such person as a result of
54 any interest, right, right of action, asset, share, claim, recovery or
55 benefit of any kind that the person obtained, or that accrued in favor
56 of such person, prior to the expiration of such sentence, term or peri-
S. 4393--A 3
1 od; (B) any recovery or award collected in a lawsuit after expiration of
2 such sentence where the right or cause of action accrued prior to the
3 expiration or service of such sentence; and (C) earned income earned
4 during a period in which such person was not in compliance with the
5 conditions of his or her probation, parole, conditional release, period
6 of post-release supervision by the department of corrections and commu-
7 nity supervision or term of supervised release with the United States
8 probation office or United States parole commission. For purposes of
9 this subparagraph, such period of non-compliance shall be measured, as
10 applicable, from the earliest date of delinquency determined by the
11 department of corrections and community supervision, or from the earli-
12 est date on which a declaration of delinquency is filed pursuant to
13 section 410.30 of the criminal procedure law and thereafter sustained,
14 or from the earliest date of delinquency determined in accordance with
15 applicable federal law, rules or regulations, and shall continue until a
16 final determination sustaining the violation has been made by the trial
17 court, the department of corrections and community supervision, or
18 appropriate federal authority; or
19 (iv) is committed to a secure facility designated by the commissioner
20 of mental health or subject to treatment which may include conditional
21 or unconditional release.
22 (d) "Crime victim" means (i) the victim of a crime; (ii) the represen-
23 tative of a crime victim as defined in subdivision six of section six
24 hundred twenty-one of this article; (iii) a good samaritan as defined in
25 subdivision seven of section six hundred twenty-one of this article;
26 (iv) the office of victim services or other governmental agency that has
27 received an application for or provided financial assistance or compen-
28 sation to the victim.
29 (e) (i) "Specified crime" means:
30 (A) a violent felony offense as defined in subdivision one of section
31 70.02 of the penal law;
32 (B) a class B felony offense defined in the penal law;
33 (C) an offense for which a merit time allowance may not be received
34 against the sentence pursuant to paragraph (d) of subdivision one of
35 section eight hundred three of the correction law;
36 (D) an offense defined in the penal law that is titled in such law as
37 a felony in the first degree;
38 (E) grand larceny in the fourth degree as defined in subdivision six
39 of section 155.30 or grand larceny in the second degree as defined in
40 section 155.40 of the penal law;
41 (F) criminal possession of stolen property in the second degree as
42 defined in section 165.52 of the penal law; or
43 (G) an offense in any jurisdiction which includes all of the essential
44 elements of any of the crimes specified in clauses (A) through (F) of
45 this subparagraph and either the crime victim as defined in subparagraph
46 (i) of paragraph (d) of this subdivision was a resident of this state at
47 the time of the commission of the offense or the act or acts constitut-
48 ing the crime occurred in whole or in part in this state.
49 (ii) Notwithstanding the provisions of subparagraph (i) of this para-
50 graph a "specified crime" shall not mean or include an offense defined
51 in any of the following articles of the penal law: articles one hundred
52 fifty-eight, one hundred seventy-eight, two hundred twenty, two hundred
53 twenty-one, two hundred twenty-five, and two hundred thirty.
54 (f) "Earned income" means income derived from one's own labor or
55 through active participation in a business as distinguished from income
56 from, for example, dividends or investments.
S. 4393--A 4
1 2. (a) Every person, firm, corporation, partnership, association or
2 other legal entity, or representative of such person, firm, corporation,
3 partnership, association or entity, which knowingly contracts for, pays,
4 or agrees to pay: (i) any profits from a crime as defined in paragraph
5 (b) of subdivision one of this section, to a person charged with or
6 convicted or found, or the court accepts a plea of, not responsible by
7 reason of mental disease or defect, of that crime, or to the represen-
8 tative of such person as defined in subdivision six of section six
9 hundred twenty-one of this article; or (ii) any funds of a convicted
10 person, as defined in paragraph (c) of subdivision one of this section,
11 where such conviction is for a specified crime and the value, combined
12 value or aggregate value of the payment or payments of such funds
13 exceeds or will exceed ten thousand dollars, shall give written notice
14 to the office of the payment or obligation to pay as soon as practicable
15 after discovering that the payment or intended payment constitutes
16 profits from a crime or funds of a convicted person.
17 (b) Notwithstanding subparagraph (ii) of paragraph (a) of this subdi-
18 vision, whenever the payment or obligation to pay involves funds of a
19 convicted person that a superintendent, sheriff or municipal official
20 receives or will receive on behalf of an inmate serving a sentence with
21 the department of corrections and community supervision or prisoner
22 confined at a local correctional facility and deposits or will deposit
23 in an inmate account to the credit of the inmate or in a prisoner
24 account to the credit of the prisoner, and the value, combined value or
25 aggregate value of such funds exceeds or will exceed ten thousand
26 dollars, the superintendent, sheriff or municipal official shall also
27 give written notice to the office.
28 Further, whenever the state or subdivision of the state makes payment
29 or has an obligation to pay funds of a convicted person, as defined in
30 subparagraph (ii) [or] , (iii) or (iv) of paragraph (c) of subdivision
31 one of this section, and the value, combined value or aggregate value of
32 such funds exceeds or will exceed ten thousand dollars, the state or
33 subdivision of the state shall also give written notice to the office.
34 In all other instances where the payment or obligation to pay involves
35 funds of a convicted person, as defined in subparagraph (ii) [or], (iii)
36 or (iv) of paragraph (c) of subdivision one of this section, and the
37 value, combined value or aggregate value of such funds exceeds or will
38 exceed ten thousand dollars, the convicted person who receives or will
39 receive such funds, or the representative of such person as defined in
40 subdivision six of section six hundred twenty-one of this article, shall
41 give written notice to the office.
42 (c) The office, upon receipt of notice of a contract, an agreement to
43 pay or payment of profits from a crime or funds of a convicted person
44 pursuant to paragraph (a) or (b) of this subdivision, or upon receipt of
45 notice of funds of a convicted person from the superintendent, sheriff
46 or municipal official of the facility where the inmate or prisoner is
47 confined pursuant to section one hundred sixteen or five hundred-c of
48 the correction law, shall notify all known crime victims of the exist-
49 ence of such profits or funds at their last known address.
50 § 2. This act shall take effect immediately.
