Does the Son of Sam Law Apply if I Write a Book About a Crime?
Full Question:
Answer:
Various state laws dealing with profits from crime might apply. Such laws have been held applicable to a family member of a criminal. For example, New York, after numerous revisions, adopted a law in 2001 again known as the "Son of Sam" law. This law requires that victims of crimes be notified whenever a person convicted of a crime received $10,000 (US) or more—from virtually any source. The law then attaches a springing statute of limitations, giving victims an extended period of time to sue the perpetrator of the crime in civil court for their crimes. This law also authorizes a state agency, the Crime Victims' Board, to act on the victims' behalf in some limited circumstances. We suggest you contact a local attorney who can review all the facts and writings involved.
The link below is an example of a statute which applies to an agent, assignee, beneficiary, conservator, executor, guardian, representative, relative, friend, associate or conspirator of a person convicted or accused of a crime, with respect to the reenactment of the crime, by way of a movie or book. Some laws are written broadly to apply to any profits from a book recollecting a crime.
Please see:
http://www.njleg.state.nj.us/2002/Bills/A2500/2033_I1.PDF
Please see N.Y. Executive Law § 632-a:
§ 632-a Exec. Crime victims.
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; (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 property obtained by or income generated from the
sale, conversion or exchange of such property and any gain realized by such
sale, conversion or exchange.
(c) "Funds of a convicted person" means all funds and property received
from any source by a person convicted of a specified crime, 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 correctional
services or a prisoner confined at a local correctional facility or federal
correctional institute, and includes funds that a superintendent, 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 deposits 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
undischarged 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 declaration
of delinquency is filed pursuant to section 410.30 of the criminal
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 sustaining
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 period
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, 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 declaration of
delinquency is filed pursuant to section 410.30 of the criminal 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 sustaining the violation has
been made by the trial court, board or division of parole, or appropriate
federal authority.
(d) "Crime victim" means (i) the victim of a crime; (ii) the
representative 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 crime victims board or other governmental agency that has
received an application for or provided financial assistance or
compensation 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 constituting the crime
occurred in whole or in part in this state.
(ii) Notwithstanding the provisions of subparagraph (i) of this
paragraph 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 of that crime, or to the representative 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 exceeds or will exceed ten thousand
dollars, shall give written notice to the crime victims board 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
subdivision, 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 on 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 crime victims
board.
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) 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 crime victims board.
In all other instances where the payment or obligation to pay involves
funds of a convicted person, as defined in subparagraph (ii) or (iii) 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 crime victims board.
(c) The board, 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 existence of such profits or
funds at their last known address.
3. Notwithstanding any inconsistent provision of the estates, powers and
trusts law or the civil practice law and rules with respect to the timely
bringing of an action, any crime victim shall have the right to bring a
civil action in a court of competent jurisdiction to recover money damages
from a person convicted of a crime of which the crime victim is a victim,
or the representative of that convicted person, within three years of the
discovery of any profits from a crime or funds of a convicted person, as
those terms are defined in this section.
Notwithstanding any other provision of law to the contrary, a judgment
obtained pursuant to this section shall not be subject to execution or
enforcement against the first one thousand dollars deposited in an inmate
account to the credit of the inmate pursuant to section one hundred
sixteen of the correction law or in a prisoner account to the credit of
the prisoner pursuant to section five hundred-c of the correction law. In
addition, where the civil action involves funds of a convicted person and
such funds were recovered by the convicted person pursuant to a judgment
obtained in a civil action, a judgment obtained pursuant to this section
may not be subject to execution or enforcement against a portion thereof
in accordance with subdivision (k) of section fifty-two hundred five of
the civil practice law and rules. If an action is filed pursuant to this
subdivision after the expiration of all other applicable statutes of
limitation, any other crime victims must file any action for damages as a
result of the crime within three years of the actual discovery of such
profits or funds, or within three years of actual notice received from or
notice published by the crime victims board of such discovery, whichever
is later.
4. Upon filing an action pursuant to subdivision three of this section,
the crime victim shall give notice to the crime victims board of the filing
by delivering a copy of the summons and complaint to the board. The crime
victim may also give such notice to the board prior to filing the action so
as to allow the board to apply for any appropriate provisional remedies
which are otherwise authorized to be invoked prior to the commencement of
an action.
5. Upon receipt of a copy of a summons and complaint, or upon receipt of
notice from the crime victim prior to filing the action as provided in
subdivision four of this section, the board shall immediately take such
actions as are necessary to:
(a) notify all other known crime victims of the alleged existence of
profits from a crime or funds of a convicted person by certified mail,
return receipt requested, where the victims' names and addresses are known
by the board;
(b) publish, at least once every six months for three years from the date
it is initially notified by a victim, pursuant to subdivision four of this
section, a legal notice in newspapers of general circulation in the county
wherein the crime was committed and in counties contiguous to such county
advising any crime victims of the existence of profits from a crime or
funds of a convicted person. For crimes committed in a county located
within a city having a population of one million or more, the notice shall
be published in newspapers having general circulation in such city. The
board may, in its discretion, provide for such additional notice as it
deems necessary;
(c) avoid the wasting of the assets identified in the complaint as the
newly discovered profits from a crime or as funds of a convicted person, in
any manner consistent with subdivision six of this section.
6. The board, acting on behalf of the plaintiff and all other victims,
shall have the right to apply for any and all provisional remedies that are
also otherwise available to the plaintiff.
(a) The provisional remedies of attachment, injunction, receivership and
notice of pendency available to the plaintiff under the civil practice law
and rules, shall also be available to the board in all actions under this
section.
(b) On a motion for a provisional remedy, the moving party shall state
whether any other provisional remedy has previously been sought in the same
action against the same defendant. The court may require the moving party
to elect between those remedies to which it would otherwise be entitled.
7. (a)(i) Whenever it appears that a person or entity has knowingly and
willfully failed to give notice in violation of paragraph (a) or (b) of
subdivision two of this section, other than the state, a subdivision of the
state, or a person who is a superintendent, sheriff or municipal official
required to give notice pursuant to this section or section one hundred
sixteen or section five hundred-c of the correction law, the board shall be
authorized to serve a notice of hearing upon the person or entity by
personal service or by registered or certified mail. The notice shall
contain the time, place and purpose of the hearing. In addition, the notice
shall be accompanied by a petition alleging facts of an evidentiary
character that support or tend to support that the person or entity, who
shall be named therein as a respondent, knowingly and willfully failed to
give notice in violation of paragraph (a) or (b) of subdivision two of this
section. Service of the notice and petition shall take place at least
fifteen days prior to the date of the hearing.
(ii) The chairperson of the board, or any board member designated by the
chairperson, shall preside over the hearing. The presiding member shall
administer oaths and may issue subpoenas. The presiding member shall not be
bound by the rules of evidence or civil procedure, but his or her
determination shall be based on a preponderance of the evidence. At the
hearing, the burden of proof shall be on the board, which shall be
represented by the counsel to the board or another person designated by the
board. The board shall produce witnesses and present evidence in support of
the alleged violation, which may include relevant hearsay evidence. The
respondent, who may appear personally at the hearing, shall have the right
of counsel and may cross-examine witnesses and produce evidence and
witnesses in his or her behalf, which may include relevant hearsay
evidence. The issue of whether the person who received an alleged payment
or obligation to pay committed the underlying crime shall not be
re-litigated at the hearing. Where the alleged violation is the failure to
give notice of a payment amount involving two or more payments the combined
value or aggregate value of which exceeds ten thousand dollars, no
violation shall be found unless it is shown that such payments were
intentionally structured to conceal their character as funds of a convicted
person, as defined in this section.
(iii) At the conclusion of the hearing, if the presiding member is not
satisfied that there is a preponderance of evidence in support of a
violation, the member shall dismiss the petition. If the presiding member
is satisfied that there is a preponderance of the evidence that the
respondent committed one or more violations, the member shall so find. Upon
such a finding, the presiding member shall prepare a written statement, to
be made available to the respondent and respondent's counsel, indicating
the evidence relied on and the reasons for finding the violation.
(iv) The board shall adopt, promulgate, amend and repeal administrative
rules and regulations governing the procedures to be followed with respect
to hearings, including rules and regulations for the administrative appeal
of a decision made pursuant to this paragraph, provided such rules and
regulations are consistent with the provisions of this subdivision.
(b)(i) Whenever it is found pursuant to paragraph (a) of this
subdivision that a respondent knowingly and willfully failed to give
notice in violation of paragraph (a) or (b) of subdivision two of this
section, the board shall impose an assessment of up to the amount of the
payment or obligation to pay and a civil penalty of up to one thousand
dollars or ten percent of the payment or obligation to pay, whichever is
greater. If a respondent fails to pay the assessment and civil penalty
imposed pursuant to this paragraph, the assessment and civil penalty may
be recovered from the respondent by an action brought by the attorney
general, upon the request of the board, in any court of competent
jurisdiction. The board shall deposit the assessment in an escrow account
pending the expiration of the three year statute of limitations authorized
by subdivision three of this section to preserve such funds to satisfy a
civil judgment in favor of a person who is a victim of a crime committed
by the convicted person to whom such failure to give notice relates. The
board shall pay the civil penalty to the state comptroller who shall
deposit the money in the state treasury pursuant to section one hundred
twenty-one of the state finance law to the credit of the criminal justice
improvement account established by section ninety-seven-bb of the state
finance law.
(ii) The board shall then notify any crime victim or crime victims, who
may have a claim against the convicted person, of the existence of such
moneys. Such notice shall instruct such person or persons that they may
have a right to commence a civil action against the convicted person, as
well as any other information deemed necessary by the board.
(iii) Upon a crime victim's presentation to the board of a civil judgment
for damages incurred as a result of the crime, the board shall satisfy up
to one hundred percent of that judgment, including costs and disbursements
as taxed by the clerk of the court, with the escrowed fund obtained
pursuant to this paragraph, but in no event shall the amount of all
judgments, costs and disbursements satisfied from such escrowed funds
exceed the amount in escrow. If more than one such crime victim indicates
to the board that they intend to commence or have commenced a civil action
against the convicted person, the board shall delay satisfying any
judgment, costs and disbursements until the claims of all such crime
victims are reduced to judgment. If the aggregate of all judgments, costs
and disbursement obtained exceeds the amount of escrowed funds, the amount
used to partially satisfy each judgment shall be reduced to a pro rata
share.
(iv) After expiration of the three year statute of limitations period
established in subdivision three of this section, the board shall review
all judgments that have been satisfied from such escrowed funds. In the
event no claim was filed or judgment obtained prior to the expiration of
the three year statute of limitations, the board shall return the escrowed
amount to the respondent. In the event a claim or claims are pending at the
expiration of the statute of limitations, such funds shall remain escrowed
until the final determination of all such claims to allow the board to
satisfy any judgment which may be obtained by the crime victim. Upon the
final determination of all such claims and the satisfaction of up to one
hundred percent of such claims by the board, the board shall be authorized
to impose an additional civil penalty of up to one thousand dollars or ten
percent of the payment or obligation to pay, whichever is greater. Prior to
imposing any such penalty, the board shall serve a notice upon the
respondent by personal service or by registered or certified mail of the
intent of the board to impose such penalty thirty days after the date of
the notice and of the opportunity to submit documentation concerning the
board's determination. After imposing and deducting any such additional
civil penalty, the board shall distribute such remaining escrowed funds, if
any, as follows: fifty percent to the state comptroller, who shall deposit
the money in the state treasury pursuant section one hundred twenty-one of
the state finance law to the credit of the criminal justice improvement
account established by section ninety-seven-bb of the state finance law;
and fifty percent to the respondent.
(v) Notwithstanding any provision of law, an alleged failure by a
convicted person to give notice under this section may not result in
proceedings for an alleged violation of the conditions of probation,
parole, conditional release, post release supervision or supervised release
unless: one or more claims were made by a crime victim against the
convicted person pursuant to this section, and the crime victims board
imposes an assessment and/or penalty upon the convicted person pursuant to
this section, and the convicted person fails to pay the total amount of the
assessment and/or penalty within sixty days of the imposition of such
assessment and/or penalty.
(vi) Records maintained by the board and proceedings by the board or a
board member based thereon regarding a claim submitted by a victim or a
claimant shall be deemed confidential, subject to the exceptions that
appear in subdivision one of section six hundred thirty-three of this
article.
(As amended Laws 2001, ch. 62, Sec. 1.)
Effective Date: Laws 2001, ch. 62, Sec. 18, provided that:
"This act shall take effect immediately and, notwithstanding the
expiration of any other statute of limitations, shall apply to: (i) all
judgments originally entered prior to such effective date, regardless
whether such judgment is subsequently amended or satisfied on or after
such effective date; and (ii) all judgments, obligations or agreements to
pay profits from a crime or funds of a convicted person entered, incurred
or entered into on or after the effective date of this act. Provided,
however, the assessment and civil penalties provided for in subdivision 7
of section 632-a of the executive law, as added by section one of this
act, shall not be applicable to the failure of a person or entity to
provide notice of a payment or obligation to pay funds of a convicted
person pursuant to subdivision 2 of section 632-a of the executive law as
amended by section one of this act within the 15 day period immediately
following the effective date of this act. Provided, further, that the
amendment to section 500-c of the correction law made by section six of
this act shall take effect upon the reversion of such section as provided
for in chapter 907 of the laws of 1984, as amended, and upon such date
section seven of this act, amending section 500-c of the correction law,
shall be deemed expired and repealed therewith."