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Romero v. Pataki

March 31, 2006

JOSE ANTONIO ROMERO, AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
GEORGE PATAKI, GOVERNOR OF THE STATE OF NEW YORK, IN BOTH HIS INDIVIDUAL AND OFFICIAL CAPACITIES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William H. Pauley III, District Judge:

MEMORANDUM AND ORDER

Plaintiff Jose Antonio Romero ("Plaintiff") brings this putative class action challenging the constitutionality of New York Executive Law § 632-a ("Section 632-a"). In 2004, pursuant to that statute, the New York State Supreme Court preliminarily enjoined Plaintiff from disbursing certain funds. With this action, Plaintiff seeks declaratory relief and an injunction prohibiting the further application of Section 632-a against him. Two groups of defendants separately move to dismiss the Second Amended Complaint (the "Complaint") pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons that follow, Defendants' motions are granted.

BACKGROUND

I. The "Son of Sam" Law

In response to efforts by convicted serial killer David Berkowitz to profit from the sale of book and movie rights to his story, in 1977 the New York State legislature enacted the so-called "Son of Sam" Law. The original Son of Sam Law required any party contracting with an accused or convicted person for a depiction of his crime to submit to New York State's Crime Victims Board (the "Crime Victims Board" or the "Board"): (1) a copy of the contract, and (2) any payments that the accused or convicted person would receive under that contract. The Board was required to hold those funds in an escrow account "for the benefit of and payable to any victim . . . provided that such victim, within five years . . . br[ought] a civil action . . . and recover[ed] a money judgment." If no action was commenced during that five-year period, the funds were released to the accused or convicted person.

In 1991, the Supreme Court struck down that version of the Son of Sam Law as violative of the First Amendment because it "singled out speech on a particular subject for a financial burden that it places on no other speech and no other income." Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 123 (1991). To remedy that constitutional infirmity, in 1992 the New York legislature enacted a new version of the statute that broadened its scope to include any income generated from a crime. The law was broadened further in 2001 to permit a crime victim to receive compensation from any funds that a convicted felon might obtain without regard to their source, even those unrelated to his or her crime.

As currently codified at Section 632-a, the Son of Sam Law provides a victim of a felony three years to file a civil action from the time he discovers that the person convicted of that crime has received "profits from a crime" or "funds of a convicted person." N.Y. Exec. Law § 632-a(3). "Profits from a crime" are defined as those funds that derive directly from the commission of a felony. N.Y. Exec. Law § 632-a(1)(b). "Funds of a convicted person" broadly encompasses "all funds and property received from any source by a person convicted of a [felony] . . . excluding child support and earned income." N.Y. Exec. Law § 632-a(1)(c).

Additionally, the statute obligates any person or entity paying "profits of a crime" or "funds of a convicted person" in excess of $10,000 to notify the Crime Victims Board in writing. N.Y. Exec. Law § 632-a(2)(a). The Board, in turn, must notify the convicted person's known victims. N.Y. Exec. Law § 632-a(2)(c). A crime victim can either file a civil suit against the convicted person or notify the Crime Victims Board of his or her intention to do so within the three-year period. N.Y. Exec. Law § 632-a(4). Upon either event, the Crime Victims Board "shall immediately take such actions as are necessary to . . . avoid the wasting of the assets."

N.Y. Exec. Law § 632-a(5)(c). The remedies available to the Board include attachment, injunction, receivership, notice of pendency and any other remedy available to the victim plaintiff. N.Y. Exec. Law § 632-a(6).

The statute also authorizes the Board to proceed directly against any person or entity paying "profits of a crime" or "funds of a convicted person" who fails to give the Board the notice required by N.Y. Exec. Law § 632-a(2)(a). N.Y. Exec. Law § 632-a(7). The Board can impose on the payer "an assessment of up to the amount of the payment or obligation to pay and a civil penalty," the funds from which are to be held in an escrow account for the benefit of the crime victims. N.Y. Exec. Law § 632-a(7)(b).

II. The Instant Action

In 1987, Plaintiff was convicted of manslaughter for the death of Javier LaBron ("LaBron") and sentenced to a maximum term of 18 years in New York State prison. (Second Amended Complaint ("Compl.") ¶ 2; Declaration of Jeb Harben, dated Apr. 15, 2005 ("Harben Decl.") Ex. A: Sentence & Commitment, dated June 25, 1987.) In 1999, Plaintiff's wife died during childbirth and her mother commenced a wrongful death action. (Compl. ¶ 9.) The parties settled that suit for $1.35 million, of which Plaintiff received $250,000 pursuant to a January 21, 2004 decree of the Surrogate's Court. (Harben Decl. Ex. B.) As required by § 632-a(2), the Surrogate's Court notified the Crime Victims Board that Plaintiff would be receiving these funds.

The Board, in turn, identified LaBron's daughters, Aida M. Quiles ("Quiles") and Angela Gutierrez ("Gutierrez"), as the "crime victims" under the statute and notified them of the settlement proceeds. On April 23, 2004, Quiles and Gutierrez informed the Board that they intended to pursue a civil claim against Plaintiff. (Harben Decl. Ex. D.) On April 29, 2004, as mandated by § 632-a(5), the Board initiated a suit in New York Supreme Court, Albany County to restrain Plaintiff's portion of the settlement funds. (Harben Decl. Ex. C.) On September 15, 2004, Justice Thomas J. McNamara issued a preliminary injunction pursuant to Section 632-a prohibiting Plaintiff and his garnishees from disposing of the funds.*fn1 (Harben Decl. Ex. I.) Plaintiff did not appeal and the preliminary injunction remains in effect. Quiles and Gutierrez have not initiated a proceeding against Plaintiff.

Plaintiff commenced this federal civil rights action on June 4, 2004. The Second Amended Complaint, filed on January 10, 2005, names as defendants the Governor, Attorney General and Deputy Attorney General of the State of New York and the members of the Crime Victims Board (collectively, the "New York State Defendants"). Plaintiff also asserts claims against Quiles and Gutierrez (together with the New York State Defendants, the "Defendants"). Plaintiff claims that the application of Section 632-a violates his First, Fifth, Eighth and Fourteenth Amendment rights and constitutes a bill of attainder and an ex post facto law in violation of Article I of the Constitution. Plaintiff seeks to enjoin Defendants from enforcing Section 632-a against him and all others similarly situated. ...


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