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New York’s Son of Sam Law, which gives crime victims the opportunity to recover damages from convicted perpetrators, passes constitutional muster, an appeals court in Brooklyn has ruled. A unanimous panel of the Appellate Division, 2nd Department, said the law was enacted to give victims an opportunity to obtain restitution, not to punish convicted criminals. “Contrary to the defendant’s contentions, the Son of Sam Law does not evince an intent to punish,” Justice Sondra Miller wrote for the court in Ciafone v. Kenyatta, 2003-098902. The court determined that the statute, Executive Law �632-a, is civil in nature. A previous version of the law was overturned as unconstitutional by the U.S. Supreme Court in 1991 (502 US 105). In 2001, the state Legislature passed the current version. It permits crime victims to bring an action within three years of the discovery of any funds, received from any source, in the possession of a person convicted of a crime involving the victim. At issue in Ciafone was the claim of a Transit Authority police officer shot by Ibn Kenyatta. In January 1974, the officer, Salvatore Ciafone, saw Kenyatta attempting to jump a turnstile in the Bronx. He tried to apprehend Kenyatta, but the assailant took hold of Ciafone’s revolver and shot the officer six times, five times in the legs. Ciafone lost 15 percent of the use of one leg and more than 17 percent of the other. Kenyatta was convicted and sentenced to 15 years to life in prison. In 2000, he sued the state Department of Correctional Services, alleging that a misdiagnosis caused his kidney failure to go untreated. Kenyatta settled the claim for more than $600,000. Ciafone was notified of the impending payment to Kenyatta. In January 2003, within the three-year limitation set by the Son of Sam Law, Ciafone and his wife sued for damages. Westchester Supreme Court Justice W. Denis Donovan denied Kenyatta’s motion to dismiss. In affirming that ruling, the 2nd Department left little doubt about the law’s constitutionality. Kenyatta argued that the Son of Sam Law violated the ex post facto clause of the U.S. Constitution, since it engendered restitution traditionally associated with punishment of a crime. The court rejected that argument, finding the law was not intended as punishment, and that its structure was not so punitive as to negate any presumption that it was civil in nature. The court consulted Kennedy v. Mendoza-Martinez, 372 US 144, a 1963 U.S. Supreme Court decision that identified seven indicators of whether a statute is punitive in effect. In the end, the panel reached several conclusions: The law (1) does not impose affirmative disabilities or restraints on defendants; (2) provides an opportunity for recovery, not automatic recovery; (3) allows for recovery for crimes that do not require scienter; (4) does not promote retribution or deterrence; (5) is narrowly drawn and promotes an interest rationally connected to the state’s objective (compensating crime victims). CONTRACT ARGUMENT The court also rejected the argument that the Son of Sam Law impinged on Kenyatta’s rights under the contract clause of the U.S. Constitution. Kenyatta had claimed the law expanded the property that was subject to attachment for a debt not existing at the time he signed his settlement agreement. The court concluded that rather than interfering with a contract, the law “merely exposes that malpractice recovery to the plaintiff if he or she proves his or her right to recover damages from the defendant.” And even if the law does interfere with Kenyatta’s settlement contract, it does so reasonably to accomplish a legitimate public purpose, the court found. Justices Barry A. Cozier, William F. Mastro and Peter B. Skelos concurred on the ruling. Edward A. Frey of Calano & Calano represented Ciafone. Assistant Attorneys General Wayne L. Benjamin and Dorothy E. Hill appeared to defend the statute. Lennox S. Hinds of Stevens, Hinds & White represented Kenyatta.

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