Section 71-2723. Procedure for determining the amount of the cost of disposing of wastes or of restoring an area to its original state following a defendant's conviction under sections 27-0914, 71-2707, 71-2709, 71-2710, 71-2711, 71-2712, 71-2713, 71-2714, 71-2715 and 71-2717 of this chapter

1. Order directing a hearing. In any case where the court  is  of  the
  opinion that the sentence should consist of or include the amount of the
  cost  of  legally  disposing  of  a  hazardous  waste when such waste is
  unlawfully possessed or restoring to its original state the area where a
  substance was unlawfully released  in  violation  of  sections  27-0914,
  71-2710,  71-2711,  71-2712,  71-2713  and  71-2714 of this chapter, the
  court shall order a hearing to determine the amount of the cost of  such
  disposal or restoration. For the purposes of this section, the "original
  state  of the area" shall mean the reasonably ascertainable condition of
  the  property  immediately  prior  to  the  unlawful  disposal   or   if
  impracticable  to  determine  such  condition,  then  it  shall  be  the
  reasonable environmentally sound condition of the  property.  The  order
  must  be  filed  with the clerk of the court and must specify a date for
  the hearing not less than ten days after the filing of the order.
    2. Notice of hearing. Upon receipt of the  order,  the  clerk  of  the
  court  must  send  a notice of the hearing to the defendant, his counsel
  and the people. Such notice must specify  the  time  and  place  of  the
  hearing and the fact that the purpose thereof is to determine the amount
  of the cost of legally disposing of a hazardous waste when such waste is
  unlawfully possessed or restoring to its original state the area where a
  substance  was  released  unlawfully  in  violation of sections 27-0914,
  71-2710, 71-2711, 71-2712, 71-2713 and 71-2714 of this chapter.
    3. Hearing. When the defendant appears for the hearing the court  must
  ask  him  whether  he wishes to make any statement or offer any evidence
  with respect to the amount of the  cost  of  legally  disposing  of  the
  hazardous  waste when such waste is unlawfully possessed or restoring to
  its original state the area where a substance was released unlawfully in
  violation of sections 27-0914, 71-2710, 71-2711,  71-2712,  71-2713  and
  71-2714 of this chapter.
    4.  Burden  and  standard  of  proof;  evidence.  At  any hearing held
  pursuant to this section the burden of proof rests upon the people.  For
  the purpose of any hearing held pursuant to this section, a finding:
    (a) as to the amount of the cost of legally disposing of the hazardous
  waste when such waste is unlawfully possessed;
    (b)  as to the amount of the cost of legally restoring to its original
  state the area where the substance was released unlawfully in  violation
  of  sections  27-0914, 71-2710, 71-2711, 71-2712, 71-2713 and 71-2714 of
  this chapter must be based upon a preponderance  of  the  evidence.  The
  defendant  shall  be  permitted  to  rebut  any  evidence offered by the
  people.
    5. Conclusion of hearing. At any time during the pendency of a hearing
  pursuant to this section the court may, in its discretion, terminate the
  hearing without making any finding, provided the  court  states  on  the
  record  its  reasons  for  the termination. In all other cases the court
  shall enter its findings and judgment upon the record at the  conclusion
  of the hearing.
    6.  Judgment.  (a)  The  judgment  may require the defendant to pay an
  amount for the disposal of hazardous wastes or the  restoration  of  the
  property  or  to perform duties of disposal or restoration or to perform
  both.
    (b) When the court orders the defendant  to  pay  an  amount  for  the
  disposal  of  hazardous  wastes  or the restoration of the property, the
  provisions of article four hundred twenty of the criminal procedure  law

  shall  govern  the  collection  of the amount which shall be paid to the
  commissioner for deposit to the credit of the hazardous  waste  remedial
  fund established by section ninety-seven-b of the state finance law.
    (c)  Where  the  court  orders  the defendant to perform duties of the
  disposal of hazardous wastes or the  restoration  to  the  property  the
  court  may authorize the department to supervise and report to it on the
  conduct of such duties; provided, however, that, section  eight  of  the
  court  of  claims  act  or  any  other  provision of law to the contrary
  notwithstanding, the state shall be immune  from  liability  and  action
  with  respect  to  any  act  or  omission  done  in  the exercise of the
  department's authority as  so  conferred  by  the  court;  and  provided
  further  that  this  subdivision shall not limit any liability which may
  otherwise exist for unlawful, willful or malicious acts or omissions  on
  the  part  of the state, state agencies, or their officers, employees or
  agents.
    (d) In order to most likely  assure  the  disposal  of  the  hazardous
  wastes  or  the restoration of the property, where there are two or more
  defendants the court may apportion the costs or assign  the  performance
  duties  of  disposal  or  restoration,  or  both,  between  or among the
  defendants as the interests of justice may appear to the court.