This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.
PUBLIC OFFICERS AND EMPLOYEES -- Restitution Agency (deposit of unclaimed funds)
MUNICIPAL FUNDS -- Unclaimed restitution payments (transfer to general fund not permissible)
CIVIL PRACTICE LAW AND RULES, §213; CRIMINAL PROCEDURE LAW, §420.10: All undisbursed restitution payments, as defined by statute, regardless of when collected by the designated restitution agency, must be used for the purposes set forth in section 420.10(7) of the Criminal Procedure Law. A county whose probation department is a designated restitution agency may not deposit into its general fund unclaimed restitution payments collected by the county probation department prior to November 1, 1984.
You ask whether unclaimed restitution payments which were collected prior to November 1, 1984, may be transferred to a county's general fund. For the reasons set forth below, we believe that such money may not be transferred to a county's general fund.
Beginning in 1980, the courts were authorized to consider restitution to the victim of a crime and to require restitution as part of the sentence imposed on a person convicted of an offense (Penal Law, §60.27; Criminal Procedure Law [CPL], Article 420). County probation departments are often designated as the agency responsible for the collection and administration of restitution and reparation payments and for the payment of such money to crime victims (see, CPL §420.10).
Until 1984, there were no statutory provisions expressly relating to unclaimed restitution payments. Effective November 1, 1984, a new subdivision was added to CPL, §420.10 which provides as follows:
7. Undisbursed restitution payments. Where a court requires that restitution or reparation be made by a defendant, the official or organization to whom payments are to be remitted pursuant to subdivision one of this section may place such payments in an interest-bearing account. The interest accrued and any undisbursed payments shall be designated for the payment of restitution orders that have remained unsatisfied for the longest period of time. For the purposes of this subdivision, the term 'undisbursed restitution payments' shall mean those payments which have been remitted by a defendant but not disbursed to the intended beneficiary and such payment has gone unclaimed for a period of one year and the location of the intended beneficiary cannot be ascertained by such official or organization after using reasonable efforts.
Obviously, restitution payments collected by county probation departments on or after November 1, 1984, are governed by the provisions of subdivision 7. Accordingly, any such undisbursed restitution payments, as defined by subdivision 7, may be used only for the payment of restitution orders that have remained unsatisfied for the longest period of time. The question remains, however, whether restitution payments collected by a county probation department prior to November 1, 1984 that have not been disbursed to the intended beneficiary and that have remained unclaimed for a period of one year are also subject to the provisions of subdivision 7.
In our opinion, a claim by a person to recover money being held on his behalf is generally governed by the State's general six year statute of limitations (CPLR, §213; see 1980 Opns St Comp No. 80-515, p 147). As a result, prior to the amendment to section 420.10 adding a new subdivision 7, any claim by a crime victim against a county probation department would have been governed, in all likelihood, by a six year statute of limitations.1 At the expiration of that six year period the crime victim would have no enforceable claim against the county probation department and the county could transfer the undisbursed restitution payment to its general fund.
Subdivision 7, however, was added only four years after the enactment of the statutes which authorized the imposition of restitution payments. Accordingly, as of November 1, 1984, there could have been no undisbursed restitution payments upon which the six year statute of limitations had run. Therefore, because none of the restitution payments collected by a county probation department prior to November 1, 1984 should have been transferred to the county general fund, we believe that subdivision 7 governs the disposition of these moneys as well.
We note that subdivision 7 is not limited by its terms to restitution payments collected on or after November 1, 1984. Rather, subdivision 7 provides that any restitution money in the hands of a restitution agency, such as a county probation department, on or after November 1, 1984, which constitutes undisbursed restitution payments for purposes of that statute, "shall be designated for the payment of restitution orders that have remained unsatisfied for the longest period of time." We also note that "[i]t is a policy of this state to encourage restitution by a person convicted of a criminal offense to the victims of his or her criminal activities in appropriate cases and to the extent that the defendant is reasonably able to do so" (Laws of 1984, chapter 965, section 1). Permitting a county to divert unclaimed restitution payments to general county purposes appears to be inconsistent with this state policy.
Therefore, we conclude that all undisbursed restitution payments, as defined by statute, regardless of when collected by the designated restitution agency, must be used for the purposes set forth in CPL, §420.10(7). A county whose probation department is a designated restitution agency may not deposit into its general fund unclaimed restitution payments collected by the county probation department prior to November 1, 1984.
August 21, 1990
Linda J. Valenti, Counsel
New York State Division of Probation and Correctional Alternatives
1 Where restitution is ordered, the district attorney is required to file the restitution order in the county clerk's office and that order has the effect of a money judgment. As a result, any victim presumably could commence an action against the defendant to obtain restitution for a period of up to twenty years after the entry of the restitution order in the county clerk's office, pursuant to the twenty year statute of limitation established by CPLR, §211. An argument could be made that this same twenty year period would be available to the victim with respect to recovering money held by the county on his behalf, although it is unlikely such an argument could prevail since the victim would not have a "judgment" against the county. It is not necessary, however, to determine whether the twenty year limitation or the six year limitation is applicable in the present context, since, as noted in the text, the statute dealing with undisbursed restitution payments was enacted only four years after the enactment of the statute providing for the imposition of restitution payments. Therefore, whichever limitation applied, the statute of limitation could not have run prior to the effective date of subdivision 7 relating to undisbursed restitution payments.