New York State Crime Victims Board v. T.J.M. Productions, Inc.

265 A.D.2d 38, 705 N.Y.S.2d 320, 28 Media L. Rep. (BNA) 1756, 2000 N.Y. App. Div. LEXIS 2582
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 7, 2000
StatusPublished
Cited by10 cases

This text of 265 A.D.2d 38 (New York State Crime Victims Board v. T.J.M. Productions, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New York State Crime Victims Board v. T.J.M. Productions, Inc., 265 A.D.2d 38, 705 N.Y.S.2d 320, 28 Media L. Rep. (BNA) 1756, 2000 N.Y. App. Div. LEXIS 2582 (N.Y. Ct. App. 2000).

Opinions

OPINION OF THE COURT

Rubin, J.

For the past two decades, the Legislature of this State has attempted to provide a source of funds to compensate crime victims for the damages they sustain at the hands of criminals. The effort to “take the profit out of crime” by seizing the instrumentalities employed in its commission has been hugely successful (see, 1 Kessler, Criminal and Civil Forfeiture, ch 1, § 1.01). However, the “Son of Sam” Law, the Legislature’s effort to prevent the criminal from reaping a windfall from the notoriety generated by the very crime he has committed (L 1977, ch 823, § 1, as amended) was thwarted by constitutional challenges mounted on First Amendment grounds (Simon & Schuster v Members of NY State Crime Victims Bd., 502 US 105 [1991]; see also, Matter of Children of Bedford v Petromelis, 79 NY2d 972). The United States Supreme Court found that the statute was not narrowly drawn to advance the “compelling [State] interest in depriving criminals of the profits of their crimes, and in using these funds to compensate victims” (Simon & Schuster v Members of NY State Crime Victims Bd., supra, at 119) so as to justify its differential treatment of [40]*40income derived from literary endeavor based upon the ideas expressed.

As originally conceived, the Son of Sam Law required the sequestration of sums payable as the result of any expression concerning a crime by a person accused or convicted of its commission. Funds subject to the statute were recoverable by the Crime Victims Board, which was to hold them in escrow for a period of five years. During this period, any victim of the crime could commence a civil action for damages and satisfy any ensuing judgment out of the escrowed funds (Executive Law § 632-a [4]). This statutory scheme was found to be “presumptively inconsistent with the First Amendment” because it “imposes a financial burden on speakers because of the content of their speech” (Simon & Schuster v Members of NY State Crime Victims Bd., supra, at 115), because it limits the crime victim’s recovery to proceeds obtained from expressive activity (supra, at 116) and because it reaches literary works unrelated to the crime for which compensation is sought to be provided (supra, at 121).

As the Court noted, “The Son of Sam law supplements preexisting statutory schemes authorizing the Board to compensate crime victims for their losses” (supra, at 111). Prominent among such statutes are the provisions for civil forfeiture of the proceeds of a crime, such as those contained in CPLR 1310 to 1352 {see also, Penal Law § 60.27 [restitution]; CPLR 6201-6226 [prejudgment attachment]). However, the Court noted that the Son of Sam Law supplements these provisions only to the extent that the accused earns income that falls within its scope. Therefore, the Court concluded, while “the State has a compelling interest in compensating victims from the fruits of the crime,” it has “little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime” (Simon & Schuster v Members of NY State Crime, Victims Bd., supra, at 120-121).

The statute applied to a wide range of protected speech “with respect to the reenactment of such crime, by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, live entertainment of any kind, or from the expression of such accused or convicted person’s thoughts, feelings, opinions or emotions regarding such crime” (Executive Law § 632-a [1]). The five-year period for commencement of an action superseded any applicable Statute of Limitations, and the law applied both to convicted criminals and to anyone who “voluntarily and intelligently admitted the' com[41]*41mission of a crime for which such person is not prosecuted” (§ 632-a [10] [b]). The law covered works on any topic in which the author recounted a crime, “however tangentially or incidentally,” resulting in its application to “a potentially very large number of works” (Simon & Schuster v Members of NY State Crime Victims Bd., supra, at 121). Because of its broad reach, encompassing such works as The Autobiography of Malcolm X and Thoreau’s Civil Disobedience, the State was unable to demonstrate “ That its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end’ ” (supra, at 118 [quoting Arkansas Writers’ Project v Ragland, 481 US 221, 231]). Thus, the Court concluded that the statute was both overinclusive in the works that it affected and underinclusive in the restriction of crime victim compensation to income derived from expressive activity.

In 1992, the Legislature undertook to redraft the Son of Sam Law to overcome the constitutional infirmities of the previous enactment (L 1992, ch 618, § 10 [eff July 24, 1992]). To that end, the income subject to its provisions has been substantially expanded (Executive Law § 632-a [1] [b]). At the same time, the class of persons to whom it applies has been limited to convicted felons (Executive Law § 632-a [1] [a]). However, the most dramatic difference from the former enactment is the integration of the Son of Sam Law into the broader statutory scheme alluded to by the United States Supreme Court. The integration is so complete that the amended statute makes only a modest addition to existing forfeiture provisions. It has been so curtailed that the question before this Court is not whether the Legislature has succeeded in removing the unconstitutional infringement upon First Amendment expression, but whether the Crime Victims Board has stated a cause of action in which the constitutional issues raised by the parties can be addressed.

In its present incarnation, Executive Law § 632-a (1) (a) defines “crime” as “any felony defined in the penal law or any other chapter of the consolidated laws of the state.” This provision not only serves to limit application of the statute to income earned by convicted felons, it also restricts the subject crimes to those defined under State law. Defendants argued, and the trial court (Leland DeGrasse, J.) agreed, that this language does not encompass conviction for a Federal offense.

This construction is consistent with the statutory scheme. The language is in haec verba the definition of “Post-conviction forfeiture crime” contained in CPLR 1310 (5). Offenses within [42]*42this section are limited to “any felony found in the Penal Law or any other chapter of the consolidated laws of the State (CPLR 1310 [5])” (Morgenthau v Citisource, Inc., 68 NY2d 211, 218; see also, Elkin v Cassarino, 248 AD2d 35, 38).

CPLR article 13-A does not contain any provision for forfeiture predicated on an offense committed in another jurisdiction that is the equivalent of a State felony (cf, Penal Law § 70.06 [1] [b] [i]; People v Muniz, 74 NY2d 464, 467 [predicate felony offense]; Judiciary Law § 90 [4] [d] [“serious crime”]), and its application has been almost universally limited to crimes that were prosecuted in this State (Morgenthau v Citisource, Inc., supra; Hynes v Iadarola, 221 AD2d 131; Kuriansky v Bed-Stuy Health Care Corp., 135 AD2d 160, affd 73 NY2d 875). Anomalously, the Appellate Division, Third Department, has departed from general practice by applying article 13-A forfeiture provisions to a Federal crime for which there exists an equivalent State felony (Hendley v Clark, 147 AD2d 347).

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265 A.D.2d 38, 705 N.Y.S.2d 320, 28 Media L. Rep. (BNA) 1756, 2000 N.Y. App. Div. LEXIS 2582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-state-crime-victims-board-v-tjm-productions-inc-nyappdiv-2000.