Inmate's Pension Safe From Son of Sam Law

     ALBANY, N.Y. (CN) - Crime victims cannot use the Son of Sam Law to stake a claim on the state pensions of public employees who wronged them, New York's highest court ruled.
     The New York Court of Appeals addressed the issue while sorting out claims against a former school district supervisor convicted of using explosive devices to intimidate perceived adversaries.
     Steven Raucci, a longtime facilities manager for the Schenectady City School District and head of a workers' bargaining unit there, was convicted in 2010 of arson, weapon possession and other crimes for detonating a homemade bomb on the porch of an occupied home.
     Authorities also connected Raucci to what they described as a "reign of terror" across three counties involving other bombs and acts of vandalism against coworkers and fellow union members.
     Raucci is serving a sentence of 23 years to life in prison at the maximum-security Clinton Correctional Facility in Dannemora, N.Y.
     Soon after the conviction, the state Office of Victim Services sought an injunction in Albany County Supreme Court to freeze Raucci's access to the $5,800-a-month pension he had begun to receive from the New York State and Local Employees' Retirement System.
     Raucci gave his wife, Shelley, the power of attorney to cash the checks.
     The Office of Victim Services wanted the checks put in Raucci's inmate account, where disbursement could be blocked and the pension money held to satisfy any civil judgments awarded to victims of his crimes.
     It initiated action on behalf of two of Raucci's victims, using the Son of Sam Law to recover damages.
     That statute, enacted in the state in the late 1970s, takes its name from the moniker serial killer David Berkowitz adopted during his roughly year-long New York City rampage. Concerned that publishers would offer Berkowitz money to tell his story, the law keeps criminals from profiting off their crimes by diverting proceeds to their victims.
     Amendments to the law made by the state Legislature in 2001 expanded where crime victims could look for restitution. In addition to "profits of a crime," the well of resources now also includes the "funds of a convicted person."
     On its website, the Office of Victim Services describes the latter as "all funds and property received from any source by a person convicted of a specified crime."
     Struggling to keep control of her incarcerated husband's pension, Shelley Raucci argued that Section 110 of state retirement and social security law exempts pensions from garnishment.
     Though the Albany trial judge agreed, the Appellate Division reversed in June 2012, holding that public pensions "are not exempt from the ... reach" of the Son of Sam Law.
     The five-justice panel looked carefully at the amendments enacted in 2001 and reasoned that "the absence of any exception in the statute for public employee pensions evinces the Legislature's intent to supersede the bar in Retirement and Social Security Law Section 110."
     The amendments detailed certain kinds of funds - such as child support - that could not be touched, but pensions were not one of them.
     "Although the Legislature expressly exempted certain categories of funds from the reach of the Son of Sam Law, it did not list pension proceeds as one of those categories, indicating that such funds were intended to be recoverable," Justice Thomas Mercure wrote for the division's Third Judicial Department in Albany.
     "The construction of the statute advanced by [Steven Raucci] and Shelley Raucci would perpetuate the very injustice that the statute sought to eliminate in attempting to ensure that '[c]rime victims and their families ... will never again fear that they can only watch helplessly while convicted criminals freely spend their' income, a result that is untenable," Mercure added.
     On further appeal, New York's highest court reversed Tuesday, finding that the Office of Victim Services had never made the argument that the Son of Sam Law supersedes protections afforded to pensions under Section 110.
     "The question of whether the Son of Sam Law creates an exception to the exemption granted by Section 110 is an important one, but the Appellate Division erred in concluding it was preserved in this case," according to the decision from the Court of Appeals.
     As the trial court "correctly said," the Office of Victim Services did not make that argument, the unsigned decision states. In its filings the office even cited Section 110 as barring access to Raucci's pension, according to the ruling.
     "Our resolution of the question decided by the Appellate Division must await a case in which the issue is preserved," the five-judge panel said.
     New York lawmakers could decide in the interim to amend the pension protections or Son of Sam Law - or both - "to make its intention clear," according to the ruling.
     On remand, the Appellate Division must consider "the facts and issues raised but not determined on the appeal to that court," the judges added.
     Assistant Solicitor General Owen Demuth argued for the Office of Victim Services. Alan Pierce of Hancock Estabrook in Syracuse represented Steven and Shelley Raucci.