05/04/2009 02:12:15 PM EST
Son of Sam and Surrogate Court Proceedings
Would you imagine that the settlement of a trust could be held up by the Son of Sam Law? You may recall that this law was enacted by New York in 1977 after serial killer, David Berkowitz, reportedly received lucrative offers to sell his story to publishers. The law, as originally enacted, provided that, when a criminal entered into a contract to receive profits from a book, movie, television show or other depiction of his crime, those profits must be turned over to the victims or the state's victim compensation fund.
In 1991, the U.S. Supreme Court struck down the New York law as an unconstitutional violation of the First Amendment right to free speech. In Simons & Schuster vs. New York Crime Victims Board, 112 S. Ct. 501 (1991), the majority said the law was too broad in that it applied to anyone accused of a crime and to publications that only tangentially referred to a crime. Such a law, the majority suggested, would have prevented the publication of such works as The Autobiography of Malcom X, Thoreau's Civil Disobedience and the Confessions of St. Augustine.
In response, New York in 2001, revised various statutes to enhance its Son of Sam Law. The new statute now provides:
- That victims of certain crimes (generally, felonies) are to be notified whenever a person convicted of a crime is to receive money of $10,000 or more from virtually any source other than child support or pay for services or business activities. See N.Y. Executive Law § 632-a and N.Y. Correction Law § 500-c.
- That the statute of limitations is then expanded to allow the crime victim to sue the perpetrator in civil court to recover money damages. N.Y. Executive Law § 632-a(3).
- That the state agency, the Crime Victims Board, is charged with taking steps to notify victims of the existence of funds of a convicted person and to seek provisional remedies to protect such funds.
Since the NY statute applies to most any funds a criminal obtains, it also applies to distributions from trusts or estates. Since June 25, 2001, the Surrogate's Court has been required to give "prompt written notice" to the State Crime Victims Board where a legatee, distributee or beneficiary is a prisoner in a state or local facility and, at the same time, direct that no payment be made to such prisoner for a period of thirty days following the date of entry containing the direction for payment of such legacy or distributive share to such prisoner. SCPA 2222-a. During that time the Crime Victims Board will contact any victim and will bring an Order to Show Cause for a Temporary Restraining Order to keep the prisoner from obtaining any trust’s or estate’s assets while the victim brings a civil action for money damages stemming from the commission of the crime. Most often, the victim and prisoner settle, the injunction on dispersal of funds is lifted, and disbursement is made in accordance with the settlement.
Certainly this represents a new but important twist to the traditional Trusts & Estates practice.
Related Links: