In some criminal cases, a prosecutor will seek restitution from a criminal defendant. Restitution is money the prosecutor claims the victim lost as a result of the crime. Here, we’ll discuss precisely what restitution is and how the amount of restitution is determined in New York.
What is Restitution?
Restitution is money paid by a defendant to a victim for losses incurred by the victim due to the crime. This is is different from any fines or surcharges that may be imposed by the court. It is also different from forfeiture of the criminal defendant’s illegal gains from his or her crime.
In general, any losses incurred by the victim can be considered in determining whether restitution is warranted. In New York, this can be for a variety of things. This most often includes:
- Repairs for damaged property
- Replacement of stolen property
- Medical expenses
- Insurance deductibles
- Lost wages or income
How Is the Amount of Restitution Determined?
A prosecutor will speak with the victim about what losses he or she may have incurred. The victim’s losses must be related to the crime. A prosecutor will look at receipts and bills to determine what amount to request.
If the defendant believes that the restitution amount is inaccurate, he or she can request a hearing to resolve the dispute. This hearing is separate and apart from the criminal action. The prosecution must prove by a preponderance of the evidence the amount of restitution due to the victim.
Often times, restitution is included as part of a plea deal. A prosecutor may request it “upfront,” meaning the defendant can only take the plea deal if he or she pays the money at or before sentencing. A restitution schedule or judgment can also be ordered by a judge. When the judge does so, the defendant will pay the amount after he or she has been sentenced.
In setting the amount, the judge must consider a defendant’s ability to pay. The judge must also consider, among other factors, the defendant’s financial obligations, his or her employment status, and his or her family situation.
Sometimes, restitution doesn’t equal what the victim’s actual losses were. A victim may be able to recover additional funds with the help of the NYS Office of Victim Services.
What If I Can’t Or Refuse to Pay Restitution?
For those who are paying per a restitution schedule, it can be difficult to keep up with payments. If the defendant is on probation, the willful refusal to make payments could constitute a violation of probation (“VOP”).
If a defendant can’t make payments, he or she should talk to a probation officer or an experienced criminal attorney. It is possible to revise a restitution schedule, rather than face a VOP and jail or prison time.
- Criminal Procedure Law § 60.27
- Criminal Procedure Law § 400.30