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.
                                                                   LBD02705-02-3

        A. 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  the

        A. 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 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],

        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  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.
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