Our office represented a young woman who was sexually abused by a neighbor. The young girl's parents had to leave for work in New York City early in the morning before the school bus would arrive to pick up their daughter. A neighbor offered his mother's services to the parents to watch their daughter while she waited for the school bus.

On several occasions while the girl was waiting for the school bus, the neighbor would take the girl to another room in the house to engage in arts and crafts with her and show her his model trains he had set up in the garage—out of sight from his own mother's watchful eye.  When the girl was alone with him, he would fondle her. After years of this abuse, the girl, while in an intoxicated condition, told her older sister about the neighbor's actions.  In this way, the girl's parents became aware of the situation for the first time. The police were notified and the neighbor was arrested and prosecuted.

Our office was referred the civil case from another lawyer. The defendant claimed he had no assets and was unemployable in his profession as a result of his conviction for sexual abuse of a minor. The only asset he had was a house he owned with his wife as "tenants by the entirety."  This meant that we would not be able to collect on any judgment we might obtain against him while his wife was still alive.

A bill was pending in the New York State legislature that would prohibit a sex offender from living within 1500 feet of his victim. Knowing that the bill was pending, the sex offender's wife contracted to purchase a house in the next town, using her own money to purchase the new home along with the proceeds from a bridge loan on the existing home to complete the transaction.  This purchase and sale would have completely divested the defendant of any assets and would have prevented the plaintiff from collecting any money on her intentional tort (abuse) claim against the defendant-husband.

We brought an Order to Show Cause application for a temporary restraining order  to impose a constructive trust on the money received by the defendant and his wife on  the proceeds from the sale of the house under New York's so-called Son Of Sam Law. The Court signed the order.

The Son of Sam law was originally enacted to  prevent a felon from making any profit from his crime and required that any proceeds realized be paid to the crime victim as compensation. This law was passed while David Berkowitz was in the process of publishing a book about his shooting and killing spree during the 1970s. The original law was overturned on First Amendment grounds by the U.S. Supreme Court. After its repeal, a new law was enacted in New York which has been revised and expanded several times.  In its current version all assets of a felon are available for the compensation of crime victims.

After the Order to Show cause was signed, the case ultimately settled, and the plaintiff was not required to testify in court again.

The legal argument

Defendant argued that the court should not provide the relief we sought because our plaintiff had not shown that the defendant felon was actually "wasting" assets that constitute funds of a convicted person. Defendant stressed that the mere selling of a house in which he held an undivided one-half interest and/or the buying of a house with funds drawn on those assets would not render a later judgment against him "ineffectual."

We responded that defendant's argument overlooked the broad, remedial reach of the revised Son of Sam law.[1] Moreover, the assertion that the defendant was not likely to abscond or do anything "wrong" misses entirely the point of the statute: to ensure compensation for crime victims  from "funds" or property from any source. We emphasized that it was undisputed that the line of credit at issue was taken out during the pendency of the current action brought  by a crime victim.

The defendant further argued that a line of credit functioning as "a bridge loan" is exempt from the reach of the statute. We argued that defendant's interpretation was incorrect. We stressed that the statute was clear as to what constitutes "funds" and what "funds" are exempted. The list of exemptions is narrowly circumscribed and does not include lines of credit.

We argued that the plaintiff is entitled to be compensated and to have all assets of the defendant preserved.  Further, the fact that a line of credit was established prior to the signed Order to Show Cause was legally irrelevant: one-half of those funds were clearly "funds of a convicted person.

Indeed we pointed out that the appellate division has rejected arguments that even "funds" established before the enactment of the law itself, are not exempt from the law's sweeping provisions.

Preliminarily, we are unpersuaded by respondent's contention that the funds in question are not subject to the Son of Sam Law because the guardianship account was established—and he became entitled to the funds therein—prior to the enactment of the relevant provisions of that law.[2]The guardianship expired in 1997 when respondent reached 18 years of age (see generally SCPA 1707[2] ). In its 2001 amendments to the Son of Sam Law, the Legislature broadly defined "funds of a convicted person" as "all funds and property received from any source by *1271 a person convicted of a specified crime" (Executive Law § 632–a[1][c] ) and excluded only four categories of funds (see Executive Law § 632–a[3]; CPLR 5205[k] ), none of which is relevant here. Thus, the funds held by Surrogate's Court constitute "funds of a convicted person," which may be received by respondent upon an order of Surrogate's Court and are properly subject to the provisions of the Son of Sam Law.

New York State Crime Victims Bd. ex rel. Organek v. Harris, 68 A.D.3d 1269, 1270-71, 891 N.Y.S.2d 175, 176 (3rd Dep't 2009).

We argued forcefully that funds which may be related to the defendant's property (house) at issue are clearly not exempted or otherwise out of the plaintiff's reach as the statute applies to "all funds and property received from any source….."  The fact that  such funds might be used to buy a house—whether luxurious or not—is beside the point: funds that become available through a line of credit clearly do not make them exempt from the application of the statute whether the line of credit was established before or after the court's signing of the Order to Show Cause.

We noted that the defendant's argument that "[b]y downsizing and reducing expenses the defendant will have greater assets available to satisfy any money judgment plaintiff may obtain does not exempt the funds or make them exempt from attachment as a matter of "equity" to a convicted felon and/or his family.

Defendant argued that the defendant and his wife are purchasing the house as tenants by the entirety and the wife will occupy the accessory apartment, in the very same manner as the current house is owned and occupied. The defendant argued further that if the plaintiff obtains a money judgment against the defendant, she will have the same rights of enforcement with respect to any judgment against the defendant's interest in the new house as she has in the existing house.  Finally, the defendant argued that there will be no impairment or prejudice to the plaintiff: that upon the closing, the defendant will provide a copy of the deed showing ownership to the court.

We responded that the problem with the defendant's analysis of "no prejudice" is two-fold.  First, it ignored the fact that the "line of credit" at issue has and will yield "funds" to the defendant (as defined by Executive Law § 632–a).  Second, the defendant's analysis improperly placed plaintiff in the same shoes as a potential ordinary creditor.  However, a crime victim does not stand in the same shoes as a potential ordinary creditor. Indeed, the Legislature went to great lengths to provide avenues to allow crime victims to be compensated for their losses. The Son of Sam Law clearly concerns civil actions brought on behalf of crime victims to recover from the convicted persons for the victims' damages resulting from the crimes. Thus, the interpretation of the statute urged upon us by respondent to prevent petitioner from obtaining injunctive relief pending the outcome of such a proceeding would render meaningless the provisions bestowing such authority upon petitioner and would defeat the very purpose of the statute (see Executive Law § 632–a[6];

New York State Crime Victims Bd. ex rel. Organek, 68 A.D.3d at 1271 (3rd Dep't 2009)

Contrary to the plain language and intent of the son of Sam law, the defendant's legal argument would have the plaintiff, a crime victim, stand in the same shoes as a potential ordinary creditor.  The legislative history and case law interpretation of its reach make clear that any interpretation of the statute—whether it be the definition of  "any funds," or the scope of an "exemption," or the availability of provisional remedies—can not trump the "compelling interest" that the state has in ensuring that victims of crime are compensated by those who harm them.

In sum, our office stressed that the court should find that the specific provisions of Executive Law § 632-a should not be frustrated or otherwise trumped by either a narrow reading of  "funds," or a broadly restrictive reading of the "requirements" of the general provisional remedies provided for under the CPLR. Clearly, the line of credit was taken out after plaintiff, a crime victim, brought the current action seeking compensation, and one-half of those monies represent "funds" available to the defendant and should be attached during the pendency of this action.

The court agreed with our position, signed the Order to show Cause, and the case readily settled.

[1] The Son of Sam Law is codified at N.Y. Exec. Law § 632-(a)(2)(a)(McKinney 2001). The revisions actually encompassed several other statutes including the Court of Claims Act, the State Finance Law, the Correction Law, the General Municipal Law, the Surrogate's Court Procedure Act, the Civil Practice Law and Rules, and the Criminal Procedure Law. The upshot of all these substantive changes is that in New York, whenever persons convicted of certain crimes receive money in excess of $10,000, notification must be given to the victims of the crime by the Crime Victim's Board. Such victims may then start a law suit against the perpetrator within three years of being notified by the Crime Victim's Board that the criminal or his representative, has received or will be receiving funds covered by the law without regard to any other expired statute of limitations. See, e.g., New York State Crime Victims Bd. ex rel. Hayes v. Sookoo, 77 A.D.3d 1227 (2010)(The distinction drawn under the Son of Sam Law between an inmate's earned and unearned income was relevant only to determine whether the New York State Crime Victims Board had to be notified and had no effect on the ability of a crime victim or a victim's representative to recover such income in a civil action).