This amendment was initially adopted as an emergency measure because time was of the essence. The effective date of the underlying Chapter law of 2018 which made this amendment necessary was June 26, 2019. To ensure consistent and fair claim determinations, and not delay the processing of crime victim claims, these rules were needed to be in place by that date and not lapse.

(b) A request for an emergency award may be approved if it appears to the office that such claim is one with respect to which an award probably will be made and undue hardship will result to the claimant if immediate payment is not made. The determination by the office of an emergency award request shall include, at a minimum, the consideration of: (1) whether a crime did in fact occur, (2) the eligibility of the person to receive an award pursuant to section 624 of the Executive Law, (3) whether ,if the crime upon which the claim is based did not result in the death of such person, the person contributed to their injuries because of their conduct pursuant to subdivision 5 of section 631 of the Executive Law, (4) the office as payer of last resort, pursuant to subdivision 4 of section 631 of the Executive Law, (5) whether the claimant and/or victim failed to cooperate with the reasonable requests of law enforcement authorities, including prosecutors, and (6) the out-of-pocket loss, as defined in section 626 of the Executive law, upon which the request for an emergency award is made.

Paragraph (iv) of subdivision (m) of section 525.12 amended to read as follows:

(iv) 25 percent reduction of award. All other conduct on part of the victim, not considered in subparagraph (i), (ii) or (iii) of this paragraph, as indicated in the investigation of the claim pursuant to subdivision (b) of section 52[2]5.5 of this Part.

Paragraph (2) of Subdivision (m) of section 525.12 is renumbered paragraph (3).

Subdivision (m) of section 525.12 is amended to add a new paragraph (2) to read as follows:

(2) Notwithstanding the provisions paragraph (1) of this subdivision, if the crime upon which the claim is based resulted in the death of the victim, awards made pursuant to Executive Law article 22 and this Part shall be reduced for conduct contributing in the following manner:

(i) 50 percent denial of award. Any conduct on part of the victim, as indicated by law enforcement in the investigation of the claim pursuant to subdivision (b) of section 525.5 of this Part, constituting felonies or misdemeanors involving violence. For the purpose of this subparagraph, the term "violence" shall include, but not be limited to: gang activity, the dealing of illegal drugs, being the initial aggressor, and the use or brandishing of illegal firearms or other dangerous instruments at or near the time of the crime.

(ii) 25 percent reduction of award. Any conduct on part of the victim, as indicated by law enforcement in the investigation of a claim pursuant to subdivision (b) of section 525.5 of this Part, constituting any other felony not considered in subparagraph (i) of this paragraph.

(iii) Any other conduct on part of the victim, not considered in subparagraph (i) or (ii) of this paragraph, as indicated in the investigation of the claim pursuant to subdivision (b) of section 525.5 of this Part, shall not be considered a reason to reduce an award.

1. Statutory authority: New York State Executive Law, section 623(3) grants the Office of Victim Services (OVS or Office) the authority to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of Article 22 of the Executive Law. Executive Law, section 631(5)(g) provides that in determining the amount of an award, if the crime upon which the claim is based resulted in the death of the victim, the Office shall determine whether, because of his or her conduct, the victim contributed to the infliction of his or her injury and that the Office shall reduce the amount of the award by no more than 50%, in accordance with such determination.

2. Legislative objectives: The legislative intent is clear that the purpose of OVS is to assist innocent victims of crime. By enacting the New York State Executive Law, section 631(5)(g) provides that in determining the amount of an award, if the crime upon which the claim is based resulted in the death of the victim, the Office shall determine whether, because of his or her conduct, the victim contributed to the infliction of his or her injury, the Legislature limited the Office to reducing the amount of the award by no more than 50%, in accordance with such determination.

3. Needs and benefits: It is clear from the OVS’ legislative intent and the other provisions in the Executive Law that the awards made by the agency are meant for the benefit of innocent victims of crime. By enacting the New York State Executive Law, section 631(5), the Legislature sought to ensure that the Office would reduce the amount of an award or reject a claim altogether based upon the victim’s own conduct. Under current regulations, “conduct contributing” is defined as, “. . . culpable conduct logically and rationally related to the crime by which the victim was victimized and contributing to the injury suffered by the victim.” [9NYCRR525.3(b)] The regulations further provide that both the investigation of, and decision on a claim consider the victim’s conduct contributing. [9NYCRR525.5(b) and 9NYCRR525.6(b)] The current regulations surrounding this provision provide standards when determining how a victim’s conduct contributed to their injury or death and how such conduct should impact their award. [9NYCRR525.12(m)]

The current regulations establish standards for such determinations to be made in a consistent manner. The standards created under these regulations are also tied to the facts collected during the investigation of the claim, to establish a record-based relationship between the victim’s conduct and the crime upon which the claim is based. These regulations were drafted to codify the type of conduct which the Office would consider as “logically and rationally related to the crime by which the victim was victimized” and how such conduct should impact an award after a 2013, Appellate Division, Second Department decision. [Matter of Cox (110 A.D.3d 797, 973 N.Y.S.2d 242)]

OVS recognized that there is a difference between surviving victims who are claimants themselves, and eligible claimants filing a claim based upon a crime-related death of a victim, and the Legislature agreed. Chapter 494 of the Laws of 2018 added a new paragraph (g) to subdivision 5 of section 631. This new paragraph provides that in determining the amount of an award, if the crime upon which the claim is based resulted in the death of the victim, the Office shall determine whether, because of his or her conduct, the victim contributed to the infliction of his or her injury and that the Office shall reduce the amount of the award by no more than 50%, in accordance with such determination. The proposed regulations are necessary to implement the statutory intent of this new law, while keeping consistent with other claim decisions in which conduct contributing is a factor.

4. Costs: a. Costs to regulated parties. It is not expected that the proposed regulations would impose any additional costs to the agency or State. The implementation of these regulatory changes should prove to create operational efficiencies within the Office and save the State money.

b. Costs to local governments. These proposed regulations do not apply to local governments and would not impose any additional costs on local governments.

c. Costs to private regulated parties. The proposed regulations do not impose any additional costs on private regulated parties.

5. Local government mandates: These proposed regulations do not impose any program, service duty or responsibility upon any local government.

6. Paperwork: These proposed regulations do not require any additional paperwork requirements than are currently required of the Office’s claimants.

7. Duplication: These proposed regulations do not duplicate any other existing state or federal requirements.

8. Alternatives: The current regulations do not take into consideration the statutory changes made by Chapter 494 of the Laws of 2018. The current regulatory scheme creates standards necessary to make consistent determinations when considering conduct contributing. Chapter 494 and the rest of the enacting statute’s provisions are clear that the Office’s awards are meant to take into consideration the conduct of the victim to decrease the benefits awarded by the Office instead of making an outright denial. The new, 50% reduction mirrors the same considerations in the existing 100% denial reasons and the new, 25% reduction mirrors the same considerations in the existing, 75% reduction. The conduct considered for each reduction could have included more or less factors, but it has been determined that the standards by which they are determined, as written, are the fairest to make such determinations – mirroring the existing denial and reduction factors which are considered for surviving crime victims.

9. Federal standards: The OVS is funded, in part by the federal Victims of Crime Act (VOCA). The statute which determines how state crime victim compensation programs may determine awards is enumerated in 42 USCS 10602. This rule change does not contradict any of the federal provisions of section 10602 and is permissible under such provisions.

10. Compliance schedule: The regulations will be effective on June 26, 2019.

The Office of Victim Services projects there will be no adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments in the State of New York as a result of this proposed rule change. This proposed rule change is simply designed to provide standards when determining how a victim’s conduct contributed to their death and how such conduct may impact a claimant’s subsequent award. Since nothing in this proposed rule change will create any adverse impacts on any small businesses or local governments in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Regulatory Flexibility Analysis is not required and therefore one has not been prepared.

The Office of Victim Services projects there will be no adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas in the State of New York as a result of this proposed rule change. This proposed rule change is simply designed to provide standards when determining how a victim’s conduct contributed to their death and how such conduct may impact a claimant’s subsequent award. Since nothing in this proposed rule change will create any adverse impacts on any public or private entities in rural areas in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Rural Area Flexibility Analysis is not required and therefore one has not been prepared.

The Office of Victim Services projects there will be no adverse impact on jobs or employment opportunities in the State of New York as a result of this proposed rule change. This proposed rule change is simply designed to provide standards when determining how a victim’s conduct contributed to their death and how such conduct may impact a claimant’s subsequent award. Since nothing in this proposed rule change will create any adverse impacts on jobs or employment opportunities in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Job Impact Statement is not required and therefore one has not been prepared.

The agency received no public comment.