Derek S. Prindle, Respondent,
John Guzy, Appellant.
Calendar Date: November 20, 2019
Guzy, Dannemora, appellant pro se.
Leonard & Cummings, LLP, Binghamton (Hugh B. Leonard of
counsel), for respondent.
Before: Clark, J.P., Mulvey, Devine and Pritzker, JJ.
from an order of the Supreme Court (Burns, J.), entered
February 12, 2018 in Chenango County, which denied
defendant's motion to, among other things, vacate a
October 2014, a road rage incident ended with defendant, a
retired New York City police officer, shooting plaintiff in
the stomach, severely injuring him, and fatally shooting
plaintiff's son. Defendant was convicted of, among other
crimes, murder in the second degree and attempted murder in
the second degree and was sentenced to a lengthy prison term
(People v Guzy, 167 A.D.3d 1230');">167 A.D.3d 1230 , lv
denied 33 N.Y.3d 948');">33 N.Y.3d 948 ). Prior to defendant's
conviction, plaintiff commenced a successful personal injury
action against defendant that ultimately resulted in a
judgment in excess of $1 million. In August 2017, after
defendant was convicted, plaintiff's attorney served a
restraining notice, pursuant to CPLR 5222 (b), upon the New
York City Police Pension Fund, where defendant's pension
is administered, to prevent any disbursements to defendant
from the pension fund pending defendant's criminal
appeal. The pension fund's general counsel replied that
it was prohibited from honoring plaintiff's request
because defendant's pension is subject to an
anti-assignment provision. Thereafter, defendant moved to
vacate the restraining notice and to stay the enforcement of
the money judgment. Supreme Court denied defendant's
motion, finding that the Son of Sam Law (see
Executive Law § 632-a) specifically allows crime victims
to recover from any funds of a convicted person, including
pension funds. Defendant appeals.
Law § 632-a sets forth a statutory scheme intended to
improve the ability of crime victims to obtain full and just
compensation from the person(s) convicted of the crime by
allowing crime victims or their representatives to sue the
convicted criminals who harmed them when the criminals
receive substantial sums of money from virtually any source
and protecting those funds while litigation is pending"
(Waldman v State of New York, 163 A.D.3d 1114, 1115
 [internal quotation marks, brackets and citations
omitted], lv denied 32 N.Y.3d 910');">32 N.Y.3d 910 ). As
enacted in 1992, the Son of Sam Law only permitted a crime
victim to recover "profits of the crime" (Education
Law former § 632-a). However, in 2001, the Legislature
amended the law to allow a crime victim to seek recovery from
"funds of a convicted person," which includes
"all funds and property received from any source by a
person convicted of a specified crime," but specifically
excludes child support and earned income (Education Law
§ 632-a  [c]).
preliminary matter, defendant's assertion in his brief -
that Retirement and Social Security Law §§ 156-159
were intended "to specifically supersede CPLR 5205 and
other state laws pertaining to pensions" - was not
raised before Supreme Court and is therefore unpreserved for
appellate review (see Grey's Woodworks, Inc. v
Witte, 173 A.D.3d 1322, 1324 ). Defendant also
contends that CPLR 5205 exempts his pension from assignment
to satisfy plaintiff's judgment because it provides for
the exemption of pension funds from the award of money
judgments. This Court has found, however, that CPLR 5205 (c)
is superseded by the Son of Sam Law (see Matter of New
York State Off. of Victim Servs. v Raucci, 106 A.D.3d
1138, 1139 n ). Defendant's assertions that
Retirement and Social Security Law § 110 and
Administrative Code of the City of New York § 13-264
protect his pension from assignment to satisfy
plaintiff's money judgment are similarly without merit
due to the broad reach of the Son of Sam Law (see Kane v
Galtieri, 122 A.D.3d 582, 587 ). Defendant's
remaining contentions, including those attacking the
constitutionality of the Son of Sam Law, have been reviewed
and are lacking in merit.
J.P., Mulvey and Devine, JJ., concur.
that the order is ...