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June 8, 2012

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law
New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440, Appellate Division, Third Department

The issue in this action: Does Retirement and Social Security Law §110* insulate the retirement benefits from a public retirement system of this State from “the broad reach of the Son of Sam Law, which does not expressly exempt pension funds?”**

The Appellate Division held that such retirement benefits are not exempt from the Son of Sam Law.

Steven C. Raucci, a former employee of the Schenectady City School District, was sentenced to a lengthy prison term upon his conviction of numerous crimes arising out of his alleged detonation and attempted detonation of explosive devices at two of his victims' homes. Raucci began receiving a retirement allowance from the New York State and Local Employees' Retirement System of approximately $5,800 per month.

The New York State Office of Victim Services sought a preliminary injunction prohibiting the withdrawal or transfer of those funds from Raucci’s inmate account. Raucci, and his spouse as “an interested person,” argued that RSSL §110 exempts the pension funds from garnishment or any other legal process.

Noting that prior to its amendment in 2001, the Son of Sam Law permitted victims to recover only "profits from a crime," i.e., property or income generated from the crime itself, the Legislature "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source."

Accordingly, said the Court,  “The current version of the statute thus permits crime victims to commence an action ‘within three years of the discovery of any profits from a crime or funds of a convicted person’ broadly defined as "all funds and property received from any source by a person convicted of a specified crime (Executive Law § 632-a [1] [c]” [emphasis added by the court].

The Appellate Division said that only two categories of a convicted person's funds are not recoverable by crime victims: the first $1,000 in the convicted person's account and the first 10% of compensatory damages obtained by the convicted person in a civil judgment, less counsel fees.

* The decision summaries the provisions of §110 as follows: Retirement and Social Security Law §110 protects public employee pensions, providing that "[t]he right of a person to a pension . . . or a retirement allowance . . . to the return of . . . the pension . . . or retirement allowance itself . . . and the monies in [those] funds . . . [s]hall not be subject to execution, garnishment, attachment, or any other process whatsoever, and . . . [s]hall be unassignable."

** The decision refers to both a “pension” and a “retirement allowance.” A retirement allowance consists of a “pension portion” determined by the employee’s final average salary and his or her “years of member service,” which is funded by employer contributions plus an “annuity portion” based on the actuarial value of the employee’s contributions, or contributions made on his or her behalf as of the date of his or her retirement.

NYPPL comments: This decision raises a number of questions that may have to be addressed by the courts or the legislature such as [1] Is a retirement allowance being received by a surviving beneficiary or beneficiaries of a retired public employee of this State subject to the Son of Sam Law? and [2] Is a retirement benefit being received by an individual or his or her beneficiary or beneficiaries from a retirement program or plan other than a public retirement system of this State subject to the Son of Sam Law?

The decision is posted on the Internet at:

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