senate Bill S4393

Amended

Relates to preventing defendants from making any profit from their crimes

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 04 / Apr / 2011
    • REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • 03 / May / 2011
    • 1ST REPORT CAL.535
  • 04 / May / 2011
    • 2ND REPORT CAL.
  • 09 / May / 2011
    • ADVANCED TO THIRD READING
  • 10 / May / 2011
    • PASSED SENATE
  • 10 / May / 2011
    • DELIVERED TO ASSEMBLY
  • 10 / May / 2011
    • REFERRED TO GOVERNMENTAL OPERATIONS
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • 20 / Mar / 2012
    • REPORTED AND COMMITTED TO FINANCE
  • 11 / Apr / 2012
    • AMEND AND RECOMMIT TO FINANCE
  • 11 / Apr / 2012
    • PRINT NUMBER 4393A
  • 08 / May / 2012
    • 1ST REPORT CAL.728
  • 09 / May / 2012
    • 2ND REPORT CAL.
  • 14 / May / 2012
    • ADVANCED TO THIRD READING
  • 30 / May / 2012
    • PASSED SENATE
  • 30 / May / 2012
    • DELIVERED TO ASSEMBLY
  • 30 / May / 2012
    • REFERRED TO GOVERNMENTAL OPERATIONS

Summary

Relates to preventing defendants from making any profit from their crimes; includes instances where defendant pleads not responsible by reason of mental disease or defect.

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Bill Details

Versions:
S4393
S4393A
Legislative Cycle:
2011-2012
Current Committee:
Law Section:
Executive Law
Laws Affected:
Amd §632-a, Exec L
Versions Introduced in 2009-2010 Legislative Cycle:
S3231

Sponsor Memo

BILL NUMBER:S4393

TITLE OF BILL:

An act
to amend the executive law, in relation to a defendant profiting from
his or her crime

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends subdivisions 1 and 2 of §632-a of the
Executive Law which prohibits a defendant who is found or takes a
plea of not responsible by reason of mental disease or defect from
deriving a profit from his or her crime.

Section 2 is the enacting provision.

JUSTIFICATION:

In the summer of 1977, a series of murders of young women in New York
left the city paralyzed with fear and created a media frenzy. Before
the investigation was complete, news had spread that publishers were
offering to pay a huge sum of money for the rights to the killer's
story. In response, the New York legislature passed Executive Law
§632-a, popularly deemed the "Son of Sam" law.

The Son of Sam law was designed to prevent criminals from profiting
from their crimes through the commercial exploitation of their
stories. The law was intended to "ensure that monies received by the
criminal under such circumstances.....first be made available to
recompense the victims of that crime for their loss and suffering."

To achieve that goal, the law required that any entity contracting
with anyone accused or convicted of a crime supply a copy of the
contract to the Crime Victims Compensation Board and pay the board
any income earned pursuant to that contract. The money would remain
in escrow for five years, during which time a victim could bring a
civil action against his or her alleged perpetrator. If the civil
action was successful, the funds would be used to satisfy any
judgment rendered. If no actions were pending after five years, the
board would then be required to pay the escrow funds to the accused.

This law has proved so popular that more than 40 states and the
federal government now have Son of Sam laws. However, the New York
statute has one significant flaw which should be remedied. If a
notorious criminal is found, or takes a plea of, not responsible by
reason of mental
disease or defect he or she will fall outside the reach of the statute.
This is more important than ever because famous criminals are trading
on their notoriety like never before. The emergence of an underground
trade in objects associated with crime, especially murder is perhaps
the most sickening development so far. These objects, known as
"murder memorabilia" or "murderabilia," include manufactured items
representative of criminals or crimes, such as murderer trading cards
or figurines, and non-manufactured items associated with the
criminals or crimes themselves. Letters and paintings by inmates are


especially popular, and items like hair and fingernail clippings
from criminals also provide easy objects for criminals to cultivate
and sell. Charles Manson is probably the most popular figure in
murderabilia, followed by such infamous criminals as John Wayne Gacy,
Richard "Nightstalker" Ramirez, and cannibal Jeffrey Dahmer. Buyers
are plentiful in this macabre industry. What was once an underground
practice has entered the mainstream through the help of Internet
auction sites like eBay and Yahoo. Sites dedicated solely to the
trade and collection of such items have also developed, permitting
dealers and buyers to enter into anonymous
transactions and avoid scrutiny by an unsuspecting public.
They have also allowed inmates to skirt prison rules prohibiting
transactions outside the prison walls by enabling agents to easily
sell the paraphernalia on their behalf. Had any of these men been
prosecuted in New York and been found, or taken a plea of, not
responsible by reason of mental disease or defect he would have
fallen beyond the protection of §632-a of the Executive Law.

PRIOR LEGISLATIVE HISTORY:

2005-06: Passed Senate
2007-08: Passed Senate
2009-10: Senate Crime Victims, Crime & Corrections Committee

FISCAL IMPLICATIONS:

To be determined.

EFFECTIVE DATE:

This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4393

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 4, 2011
                               ___________

Introduced  by Sen. FLANAGAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Crime Victims,  Crime  and
  Correction

AN  ACT to amend the executive law, in relation to a defendant profiting
  from his or her crime

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 1 and 2 of section 632-a of the executive law,
as  amended by section 24 of part A-1 of chapter 56 of the laws of 2010,
are amended to read as follows:
  1. For the purposes of this section:
  (a) "Crime" means (i) any felony defined in the laws of the state;  or
(ii)  an offense in any jurisdiction which includes all of the essential
elements of any felony defined in the laws of this state  and:  (A)  the
crime  victim,  as  defined in subparagraph (i) of paragraph (d) of this
subdivision, was a resident of this state at the time of the  commission
of the offense; or (B) the act or acts constituting the offense occurred
in whole or in part in this state.
  (b)  "Profits from a crime" means (i) any property obtained through or
income generated from the commission of a crime of which  the  defendant
was  convicted OR FOUND, OR THE COURT ACCEPTS A PLEA OF, NOT RESPONSIBLE
BY REASON OF MENTAL DISEASE OR DEFECT; (ii) any property obtained by  or
income  generated from the sale, conversion or exchange of proceeds of a
crime, including any gain realized by such sale, conversion or exchange;
and (iii) any property which the defendant obtained or income  generated
as a result of having committed the crime, including any assets obtained
through  the  use of unique knowledge obtained during the commission of,
or in preparation for the commission of, a crime, as well as any proper-
ty obtained by or income generated from the sale, conversion or exchange
of such property and any gain  realized  by  such  sale,  conversion  or
exchange.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10480-01-1

S. 4393                             2

  (c)  "Funds  of  a  convicted  person"  means  all  funds and property
received from any source by a person convicted of a specified crime,  OR
FOUND,  OR  THE  COURT  ACCEPTS  A PLEA OF, NOT RESPONSIBLE BY REASON OF
MENTAL DISEASE OR DEFECT, or by the representative  of  such  person  as
defined  in  subdivision  six  of section six hundred twenty-one of this
article excluding child support and earned income, where such person:
  (i) is an inmate serving a sentence with the department of correction-
al services or a prisoner confined at a local correctional  facility  or
federal  correctional  institute,  and includes funds that a superinten-
dent, sheriff or municipal official receives on behalf of an  inmate  or
prisoner  and  deposits in an inmate account to the credit of the inmate
pursuant to section one hundred sixteen of the correction law or  depos-
its  in  a  prisoner  account  to the credit of the prisoner pursuant to
section five hundred-c of the correction law; or
  (ii) is not an inmate or prisoner but who is  serving  a  sentence  of
probation or conditional discharge or is presently subject to an undisc-
harged  indeterminate,  determinate  or definite term of imprisonment or
period of post-release supervision or term of  supervised  release,  but
shall  include earned income earned during a period in which such person
was not in compliance with the  conditions  of  his  or  her  probation,
parole,  conditional  release, period of post-release supervision by the
division of parole or term of supervised release with the United  States
probation  office  or  United  States parole commission. For purposes of
this subparagraph, such period of non-compliance shall be  measured,  as
applicable,  from  the  earliest  date  of delinquency determined by the
board or division of parole, or from the earliest date on which a decla-
ration of delinquency is filed pursuant to section 410.30 of the  crimi-
nal procedure law and thereafter sustained, or from the earliest date of
delinquency  determined in accordance with applicable federal law, rules
or regulations, and shall continue until a final determination  sustain-
ing the violation has been made by the trial court, board or division of
parole, or appropriate federal authority; or
  (iii)  is  no longer subject to a sentence of probation or conditional
discharge or indeterminate, determinate or definite term of imprisonment
or period of post-release supervision or term of supervised release, and
where within the previous three years: the full or maximum term or peri-
od terminated or expired or such person was granted  a  discharge  by  a
board  of  parole  pursuant to applicable law, or granted a discharge or
termination from probation pursuant  to  applicable  law  or  granted  a
discharge or termination under applicable federal or state law, rules or
regulations  prior  to  the  expiration  of such full or maximum term or
period; and includes only: (A) those funds paid  to  such  person  as  a
result  of  any  interest,  right, right of action, asset, share, claim,
recovery or benefit of any  kind  that  the  person  obtained,  or  that
accrued  in  favor  of  such  person,  prior  to  the expiration of such
sentence, term or period; (B) any  recovery  or  award  collected  in  a
lawsuit  after  expiration  of such sentence where the right or cause of
action accrued prior to the expiration or service of such sentence;  and
(C) earned income earned during a period in which such person was not in
compliance  with  the conditions of his or her probation, parole, condi-
tional release, period of post-release supervision by  the  division  of
parole  or  term  of supervised release with the United States probation
office or United States parole commission. For purposes of this subpara-
graph, such period of non-compliance shall be measured,  as  applicable,
from  the  earliest date of delinquency determined by the board or divi-
sion of parole, or from the earliest date  on  which  a  declaration  of

S. 4393                             3

delinquency  is  filed pursuant to section 410.30 of the criminal proce-
dure law and thereafter sustained, or from the earliest date  of  delin-
quency  determined  in  accordance with applicable federal law, rules or
regulations,  and  shall continue until a final determination sustaining
the violation has been made by the trial court,  board  or  division  of
parole, or appropriate federal authority; OR
  (IV)  IS COMMITTED TO A SECURE FACILITY DESIGNATED BY THE COMMISSIONER
OF MENTAL HEALTH OR SUBJECT TO TREATMENT WHICH MAY  INCLUDE  CONDITIONAL
OR UNCONDITIONAL RELEASE.
  (d) "Crime victim" means (i) the victim of a crime; (ii) the represen-
tative  of  a  crime victim as defined in subdivision six of section six
hundred twenty-one of this article; (iii) a good samaritan as defined in
subdivision seven of section six hundred  twenty-one  of  this  article;
(iv) the office of victim services or other governmental agency that has
received  an application for or provided financial assistance or compen-
sation to the victim.
  (e) (i) "Specified crime" means:
  (A) a violent felony offense as defined in subdivision one of  section
70.02 of the penal law;
  (B) a class B felony offense defined in the penal law;
  (C)  an  offense  for which a merit time allowance may not be received
against the sentence pursuant to paragraph (d)  of  subdivision  one  of
section eight hundred three of the correction law;
  (D)  an offense defined in the penal law that is titled in such law as
a felony in the first degree;
  (E) grand larceny in the fourth degree as defined in  subdivision  six
of  section  155.30  or grand larceny in the second degree as defined in
section 155.40 of the penal law;
  (F) criminal possession of stolen property in  the  second  degree  as
defined in section 165.52 of the penal law; or
  (G) an offense in any jurisdiction which includes all of the essential
elements  of  any  of the crimes specified in clauses (A) through (F) of
this subparagraph and either the crime victim as defined in subparagraph
(i) of paragraph (d) of this subdivision was a resident of this state at
the time of the commission of the offense or the act or acts  constitut-
ing the crime occurred in whole or in part in this state.
  (ii)  Notwithstanding the provisions of subparagraph (i) of this para-
graph a "specified crime" shall not mean or include an  offense  defined
in  any of the following articles of the penal law: articles one hundred
fifty-eight, one hundred seventy-eight, two hundred twenty, two  hundred
twenty-one, two hundred twenty-five, and two hundred thirty.
  (f)  "Earned  income"  means  income  derived  from one's own labor or
through active participation in a business as distinguished from  income
from, for example, dividends or investments.
  2.  (a)  Every  person, firm, corporation, partnership, association or
other legal entity, or representative of such person, firm, corporation,
partnership, association or entity, which knowingly contracts for, pays,
or agrees to pay: (i) any profits from a crime as defined  in  paragraph
(b)  of  subdivision  one  of  this section, to a person charged with or
convicted OR FOUND, OR THE COURT ACCEPTS A PLEA OF, NOT  RESPONSIBLE  BY
REASON  OF  MENTAL DISEASE OR DEFECT, of that crime, or to the represen-
tative of such person as defined  in  subdivision  six  of  section  six
hundred  twenty-one  of  this  article; or (ii) any funds of a convicted
person, as defined in paragraph (c) of subdivision one of this  section,
where  such  conviction is for a specified crime and the value, combined
value or aggregate value of  the  payment  or  payments  of  such  funds

S. 4393                             4

exceeds  or  will exceed ten thousand dollars, shall give written notice
to the office of the payment or obligation to pay as soon as practicable
after discovering that  the  payment  or  intended  payment  constitutes
profits from a crime or funds of a convicted person.
  (b)  Notwithstanding subparagraph (ii) of paragraph (a) of this subdi-
vision, whenever the payment or obligation to pay involves  funds  of  a
convicted  person  that  a superintendent, sheriff or municipal official
receives or will receive on behalf of an inmate serving a sentence  with
the  department of correctional services or prisoner confined at a local
correctional facility and deposits or will deposit in an inmate  account
to  the  credit  of the inmate or in a prisoner account to the credit of
the prisoner, and the value, combined value or aggregate value  of  such
funds  exceeds  or will exceed ten thousand dollars, the superintendent,
sheriff or municipal official shall also  give  written  notice  to  the
office.
  Further,  whenever the state or subdivision of the state makes payment
or has an obligation to pay funds of a convicted person, as  defined  in
subparagraph  (ii)  [or] , (iii) OR (IV) of paragraph (c) of subdivision
one of this section, and the value, combined value or aggregate value of
such funds exceeds or will exceed ten thousand  dollars,  the  state  or
subdivision of the state shall also give written notice to the office.
  In all other instances where the payment or obligation to pay involves
funds of a convicted person, as defined in subparagraph (ii) [or], (iii)
OR  (IV)  of  paragraph  (c) of subdivision one of this section, and the
value, combined value or aggregate value of such funds exceeds  or  will
exceed  ten  thousand dollars, the convicted person who receives or will
receive such funds, or the representative of such person as  defined  in
subdivision six of section six hundred twenty-one of this article, shall
give written notice to the office.
  (c)  The office, upon receipt of notice of a contract, an agreement to
pay or payment of profits from a crime or funds of  a  convicted  person
pursuant to paragraph (a) or (b) of this subdivision, or upon receipt of
notice  of  funds of a convicted person from the superintendent, sheriff
or municipal official of the facility where the inmate  or  prisoner  is
confined  pursuant  to  section one hundred sixteen or five hundred-c of
the correction law, shall notify all known crime victims of  the  exist-
ence of such profits or funds at their last known address.
  S 2. This act shall take effect immediately.

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