S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1201
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 6, 2017
                                ___________
 
 Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the civil practice law and rules, in relation to  creat-
   ing  a  civil  course  of  action  to recover the value of any benefit
   received from any public retirement system or retirement  plan  by  an
   elected official who has been convicted of certain felonies
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 1310 of the civil practice law and rules is amended
 by adding a new subdivision 2-a to read as follows:
   2-A. "PROCEEDS OF A VIOLATION OF THE PUBLIC  TRUST"  MEANS  AN  AMOUNT
 EQUIVALENT TO THE MONETARY VALUE OF ANY BENEFIT RECEIVED FROM ANY PUBLIC
 RETIREMENT  SYSTEM  OR  RETIREMENT  PLAN  BY AN ELECTED OFFICIAL WHO HAS
 COMMITTED A FELONY CRIME  AS  DEFINED  IN  SUBDIVISION  FIVE-A  OF  THIS
 SECTION.
   §  2.  Section  1310 of the civil practice law and rules is amended by
 adding a new subdivision 5-a to read as follows:
   5-A. "POST-CONVICTION FORFEITURE CRIME INVOLVING AN ELECTED  OFFICIAL"
 MEANS:
   (A)  ANY FELONY FOR COMMITTING, AIDING OR ABETTING A LARCENY OF PUBLIC
 FUNDS FROM THE STATE OR A MUNICIPALITY;
   (B) ANY FELONY COMMITTED IN  DIRECT  CONNECTION  WITH  SERVICE  AS  AN
 ELECTED OFFICIAL; OR
   (C)  ANY  FELONY  COMMITTED  BY  SUCH  PERSON  WHO, WITH THE INTENT TO
 DEFRAUD, REALIZES OR OBTAINS,  OR  ATTEMPTS  TO  REALIZE  OR  OBTAIN,  A
 PROFIT,  GAIN  OR  ADVANTAGE  FOR  HIMSELF  OR HERSELF OR FOR SOME OTHER
 PERSON, THROUGH THE USE OR ATTEMPTED USE OF THE  POWER,  RIGHTS,  PRIVI-
 LEGES OR DUTIES OF HIS OR HER POSITION AS AN ELECTED OFFICIAL.
   §  3.  The  opening  paragraph of subdivision 1 of section 1311 of the
 civil practice law and rules, as amended by chapter 655 of the  laws  of
 1990, is amended to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01957-01-7

 S. 1201                             2
 
   A  civil action may be commenced by the appropriate claiming authority
 against a criminal defendant to recover the property  which  constitutes
 the proceeds of a crime, the substituted proceeds of a crime, an instru-
 mentality  of a crime or the real property instrumentality of a crime or
 to  recover  a  money  judgment  in an amount equivalent in value to the
 property which constitutes the proceeds  of  a  crime,  the  substituted
 proceeds of a crime, an instrumentality of a crime, or the real property
 instrumentality  of  a  crime.  A  CIVIL  ACTION MAY BE COMMENCED BY THE
 APPROPRIATE CLAIMING AUTHORITY AGAINST AN ELECTED OFFICIAL TO RECOVER  A
 MONEY  JUDGMENT  WHICH  CONSTITUTES  THE  PROCEEDS OF A VIOLATION OF THE
 PUBLIC TRUST. A civil action may be  commenced  against  a  non-criminal
 defendant  to  recover  the property which constitutes the proceeds of a
 crime, the substituted proceeds of a  crime,  an  instrumentality  of  a
 crime,  or the real property instrumentality of a crime provided, howev-
 er, that a judgment of forfeiture predicated upon clause (A) of subpara-
 graph (iv) of paragraph (b) of subdivision three hereof shall be limited
 to the amount of the proceeds of the crime. Any action under this  arti-
 cle  must  be commenced within five years of the commission of the crime
 and shall be civil, remedial, and in personam in nature and shall not be
 deemed to be a penalty or criminal forfeiture for any purpose. Except as
 otherwise specially provided by  statute,  the  proceedings  under  this
 article  shall be governed by this chapter. An action under this article
 is not a criminal proceeding and may not be  deemed  to  be  a  previous
 prosecution under article forty of the criminal procedure law. AN ACTION
 UNDER THIS ARTICLE AGAINST AN ELECTED OFFICIAL WHO IS NOT SUBJECT TO THE
 PROVISIONS  OF ARTICLE THREE-B OF THE RETIREMENT AND SOCIAL SECURITY LAW
 SHALL NOT IN ANY WAY BE DEEMED TO IMPEDE OR IMPAIR ANY RIGHTS OR  PRIVI-
 LEGES  AFFORDED  TO  SUCH  ELECTED  OFFICIAL  AS  A MEMBER OF ANY PUBLIC
 RETIREMENT SYSTEM OR RETIREMENT PLAN.
   § 4. Subdivision 1 of section 1311 of the civil practice law and rules
 is amended by adding a new paragraph (a-1) to read as follows:
   (A-1) ACTIONS RELATING TO POST-CONVICTION FORFEITURE CRIMES  INVOLVING
 ELECTED  OFFICIALS.  AN  ACTION RELATING TO A POST-CONVICTION FORFEITURE
 CRIME INVOLVING AN ELECTED OFFICIAL MUST BE GROUNDED UPON  A  CONVICTION
 OF  A FELONY DEFINED IN SUBDIVISION FIVE-A OF SECTION ONE THOUSAND THREE
 HUNDRED TEN OF THIS ARTICLE, OR UPON CRIMINAL ACTIVITY  ARISING  FROM  A
 COMMON  SCHEME  OR  PLAN OF WHICH SUCH A CONVICTION IS A PART, OR UPON A
 COUNT OF AN INDICTMENT  OR  INFORMATION  ALLEGING  A  FELONY  WHICH  WAS
 DISMISSED AT THE TIME OF A PLEA OF GUILTY TO A FELONY IN SATISFACTION OF
 SUCH  COUNT.  A COURT MAY NOT GRANT FORFEITURE UNTIL SUCH CONVICTION HAS
 OCCURRED. HOWEVER, AN ACTION MAY BE COMMENCED, AND A COURT MAY  GRANT  A
 PROVISIONAL REMEDY PROVIDED UNDER THIS ARTICLE, PRIOR TO SUCH CONVICTION
 HAVING OCCURRED. AN ACTION UNDER THIS PARAGRAPH MUST BE DISMISSED AT ANY
 TIME  AFTER  SIXTY  DAYS  OF  THE  COMMENCEMENT OF THE ACTION UNLESS THE
 CONVICTION UPON WHICH THE ACTION IS GROUNDED HAS OCCURRED, OR AN INDICT-
 MENT OR INFORMATION UPON WHICH THE ASSERTED CONVICTION IS TO BE BASED IS
 PENDING IN A SUPERIOR COURT. AN ACTION UNDER  THIS  PARAGRAPH  SHALL  BE
 STAYED  DURING THE PENDENCY OF A CRIMINAL ACTION WHICH IS RELATED TO IT;
 PROVIDED, HOWEVER, THAT SUCH STAY SHALL  NOT  PREVENT  THE  GRANTING  OR
 CONTINUANCE OF ANY PROVISIONAL REMEDY PROVIDED UNDER THIS ARTICLE OR ANY
 OTHER PROVISIONS OF LAW.
   § 5. This act shall take effect immediately.