§ 60.27 Restitution and reparation.
1. In addition to any of the dispositions authorized by this article,
the court shall consider restitution or reparation to the victim of the
crime and may require restitution or reparation as part of the sentence
imposed upon a person convicted of an offense, and after providing the
district attorney with an opportunity to be heard in accordance with the
provisions of this subdivision, require the defendant to make restitu-
tion of the fruits of his or her offense or reparation for the actual
out-of-pocket loss caused thereby and, in the case of a violation of
section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any
costs or losses incurred due to any adverse action taken against the
victim. The district attorney shall where appropriate, advise the court
at or before the time of sentencing that the victim seeks restitution or
reparation, the extent of injury or economic loss or damage of the
victim, and the amount of restitution or reparation sought by the victim
in accordance with his or her responsibilities under subdivision two of
section 390.50 of the criminal procedure law and article twenty-three of
the executive law. The court shall hear and consider the information
presented by the district attorney in this regard. In that event, or
when the victim impact statement reports that the victim seeks restitu-
tion or reparation, the court shall require, unless the interests of
justice dictate otherwise, in addition to any of the dispositions
authorized by this article that the defendant make restitution of the
fruits of the offense and reparation for the actual out-of-pocket loss
and, in the case of a violation of section 190.78, 190.79, 190.80,
190.82 or 190.83 of this chapter, any costs or losses incurred due to
any adverse action, caused thereby to the victim. In the event that
restitution or reparation are not ordered, the court shall clearly state
its reasons on the record. Adverse action as used in this subdivision
shall mean and include actual loss incurred by the victim, including an
amount equal to the value of the time reasonably spent by the victim
attempting to remediate the harm incurred by the victim from the
offense, and the consequential financial losses from such action.
2. Whenever the court requires restitution or reparation to be made,
the court must make a finding as to the dollar amount of the fruits of
the offense and the actual out-of-pocket loss to the victim caused by
the offense. In making this finding, the court must consider any victim
impact statement provided to the court. If the record does not contain
sufficient evidence to support such finding or upon request by the
defendant, the court must conduct a hearing upon the issue in accordance
with the procedure set forth in section 400.30 of the criminal procedure
law.
3. The provisions of sections 420.10, 420.20 and 420.30 of the
criminal procedure law shall apply in the collection and remission of
restitution and reparation.
4. For purposes of the imposition, determination and collection of
restitution or reparation, the following definitions shall apply:
(a) the term "offense" shall include the offense for which a defendant
was convicted, as well as any other offense that is part of the same
criminal transaction or that is contained in any other accusatory
instrument disposed of by any plea of guilty by the defendant to an
offense.
(b) the term "victim" shall include the victim of the offense, the
representative of a crime victim as defined in subdivision six of
section six hundred twenty-one of the executive law, an individual whose
identity was assumed or whose personal identifying information was used
in violation of section 190.78, 190.79 or 190.80 of this chapter, or any
person who has suffered a financial loss as a direct result of the acts
of a defendant in violation of section 190.78, 190.79, 190.80, 190.82 or
190.83 of this chapter, a good samaritan as defined in section six
hundred twenty-one of the executive law and the crime victims` board or
other governmental agency that has received an application for or has
provided financial assistance or compensation to the victim.
A victim shall also mean any owner or lawful producer of a master
recording, or a trade association that represents such owner or lawful
producer, that has suffered injury as a result of an offense as defined
in article two hundred seventy-five of this chapter.
5.(a) Except upon consent of the defendant or as provided in paragraph
(b) of this subdivision, or as a condition of probation or conditional
discharge as provided in paragraph (g) of subdivision two of section
65.10 of this chapter, the amount of restitution or reparation required
by the court shall not exceed fifteen thousand dollars in the case of a
conviction for a felony, or ten thousand dollars in the case of a
conviction for any offense other than a felony. Notwithstanding the
provisions of this subdivision, if an officer of a school district is
convicted of violating any section of article one hundred fifty-five of
this chapter where the victim of such crime is such officer's school
district, the court may require an amount of restitution up to the full
amount of the fruits of the offense or reparation up to the full amount
of the actual out-of-pocket loss suffered by the victim, provided
further that in such case the provisions of paragraph (b) of this subdi-
vision shall not apply.
(b) The court in its discretion may impose restitution or reparation
in excess of the amounts specified in paragraph (a) of this subdivision,
provided however that the amount in excess must be limited to the return
of the victim`s property, including money, or the equivalent value
thereof; and reimbursement for medical expenses actually incurred by the
victim prior to sentencing as a result of the offense committed by the
defendant.
6. Any payment made as restitution or reparation pursuant to this
section shall not limit, preclude or impair any liability for damages in
any civil action or proceeding for an amount in excess of such payment.
7. In the event that the court requires restitution or reparation to
be made to a person and that person dies prior to the completion of said
restitution or reparation, the remaining payments shall be made to the
estate of the deceased.
8. The court shall in all cases where restitution or reparation is
imposed direct as part of the disposition that the defendant pay a
designated surcharge of five percent of the entire amount of a
restitution or reparation payment to the official or organization
designated pursuant to subdivision eight of section 420.10 of the
criminal procedure law. The designated surcharge shall not exceed five
percent of the amount actually collected. Upon the filing of an
affidavit of the official or organization designated pursuant to
subdivision eight of section 420.10 of the criminal procedure law
demonstrating that the actual cost of the collection and administration
of restitution or reparation in a particular case exceeds five percent
of the entire amount of the payment or the amount actually collected, as
the case may be, the court shall direct that the defendant pay an
additional surcharge of not more than five percent of the entire amount
of a restitution or reparation payment to such official or organization,
or the actual cost of collection or administration, whichever is less
unless, upon application of the defendant, the court determines that
imposition of such additional surcharge would cause undue hardship to
the defendant, or any other person who is financially supported by the
defendant, or would otherwise not be in the interest of justice. Such
additional surcharge, when added to the initial five percent surcharge,
shall not exceed ten percent of the amount actually collected.
9. If the offense of which a person is convicted is a class A, class
B, class C, or class D felony involving the sale of a controlled
substance, as defined in article two hundred twenty of this chapter, and
no other victim who is a person is seeking restitution in the case, the
term "victim" as used in this section, in addition to its ordinary
meaning, shall mean any law enforcement agency of the state of New York
or of any subdivision thereof which has expended funds in the purchase
of any controlled substance from such person or his agent as part of the
investigation leading to such conviction. Any restitution which may be
required to be made to a law enforcement agency pursuant to this section
shall be limited to the amount of funds expended in the actual purchase
of such controlled substance by such law enforcement agency, less the
amount of any funds which have been or will be recovered from any other
source, and shall not include a designated surcharge pursuant to
subdivision eight of this section. Any law enforcement agency seeking
restitution pursuant to this section shall file with the court and the
district attorney an affidavit stating that funds expended in the actual
purchase of a controlled substance for which restitution is being sought
have not been and will not be recovered from any other source or in any
other civil or criminal proceeding. Any law enforcement agency receiving
restitution pursuant to this section shall promptly transmit to the
commissioner of the division of criminal justice services a report
stating the dollar amount of the restitution received.
10. If the offense of which a person is convicted is defined in
section 150.10, 150.15 or 150.20 of this chapter, and no other victim
who is a person is seeking restitution in the case, the term "victim" as
used in this section, in addition to its ordinary meaning, shall mean
any municipality or volunteer fire company which has expended funds or
will expend funds for the purpose of restoration, rehabilitation or
clean-up of the site of the arson. Any restitution which may be required
to be made to a municipality or volunteer fire company pursuant to this
section shall be limited to the amount of funds reasonably expended or
to be expended for the purpose of restoration, rehabilitation or clean-
up of the site of the arson, less the amount of any funds which have
been or will be recovered from any other source, and shall not include a
designated surcharge pursuant to subdivision eight of this section. Any
municipality or volunteer fire company seeking restitution pursuant to
this section shall file with the court, district attorney and defense
counsel an affidavit stating that the funds reasonably expended or to be
expended for which restitution is being sought have not been and will
not be recovered from any other source or in any other civil or criminal
proceeding. For the purposes of this subdivision, "volunteer fire
company" means a fire company as defined in paragraph a of subdivision
two of section one hundred of the general municipal law.
11. Notwithstanding any other provision of this section to the
contrary, when a person is convicted of harming an animal trained to aid
a person with a disability in the second degree as defined in section
195.11 of this chapter, or harming an animal trained to aid a person
with a disability in the first degree as defined in section 195.12 of
this chapter, the court, in addition to any other sentence, shall order
the payment of restitution to the person with a disability who was aided
by such animal.
12. If the offense of which a person is convicted is defined in
section 155.25, 155.30, 155.35, 155.40 or 155.42 of this chapter, and
the property taken is timber, the court may upon conviction, in addition
to any other sentence, direct the defendant to pay the rightful owner of
such timber an amount equal to treble the stumpage value of the timber
stolen as defined in section 71-0703 of the environmental conservation
law and for any permanent and substantial damage caused to the land or
the improvements thereon as a result of such violation. Such reparations
shall be of such kind, nature and extent as will reasonably restore the
lands affected by the violation to their condition immediately before
the violation and may be made by physical restoration of such lands
and/or by the assessment of monetary payment to make such restoration.
13. If the offense of which a person is convicted is defined in
section 240.50, subdivision one or two of section 240.55, section 240.60,
section 240.61, section 240.62 or section 240.63 of this chapter,
and no other victim who is a person is seeking restitution in the case,
the term "victim" as used in this subdivision, in addition to the ordi-
nary meaning, shall mean any school, municipality, fire district, fire
company, fire corporation, ambulance association, ambulance corporation,
or other legal or public entity engaged in providing emergency services
which has expended funds for the purpose of responding to a false report
of an incident or false bomb as defined in section 240.50, subdivision
one or two of section 240.55, section 240.60 [or], section 240.61,
section 240.62, or section 240.63 of this chapter. Any restitution which
may be required to be made to a victim pursuant to this subdivision
shall be limited to the amount of funds reasonably expended for the
purpose of responding to such false report of incident or false bomb,
less the amount of any funds which have been or will be recovered from
any other source and shall not include a designated surcharge pursuant
to subdivision eight of this section. Any victim seeking restitution
pursuant to this subdivision shall file with the court, district attor-
ney and defense counsel an affidavit stating that the funds reasonably
expended for which restitution is being sought have not been and will
not be recovered from any other source or in any other civil or criminal
proceeding, except as provided for by section 3-112 of the general obli-
gations law.
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