Bill Text: NY A02358 | 2023-2024 | General Assembly | Introduced
Bill Title: Establishes the child victim foundation fund; implements a supplemental child victim fee.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - referred to ways and means [A02358 Detail]
Download: New_York-2023-A02358-Introduced.html
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. LBD02705-02-3A. 2358 2 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 theA. 2358 3 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 feeA. 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 theA. 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],A. 2358 6 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 foundationA. 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.
