Opinion
3783-19
12-11-2019
In the Matter of the Application of New York State Office of Victim Services, on behalf of Jonathan Hernandez, the representative of the crime victim, and all other victims of, respondent's crimes, Petitioner, v. Ralph Rodriguez, Respondent.
APPEARANCES: Letitia A. James, Esq. Attorney General of the State of New York Attorney for the Petitioner By: Adele Durand, Assistant Attorney General Office of the Attorney General The Capitol Albany, New York 12224 Ralph Rodriguez, Pro Se DIN No. 17-A-0928 Washington Correctional Facility 72 Lock, 11 Lane, P.O. Box 180 Comstock, New York 12821
APPEARANCES: Letitia A. James, Esq. Attorney General of the State of New York Attorney for the Petitioner By: Adele Durand, Assistant Attorney General Office of the Attorney General The Capitol Albany, New York 12224 Ralph Rodriguez, Pro Se DIN No. 17-A-0928 Washington Correctional Facility 72 Lock, 11 Lane, P.O. Box 180 Comstock, New York 12821 David A. Weinstein, J.
This case has its origin in the 2015 criminal conviction of respondent Ralph Rodriguez for Second Degree Robbery (Penal Law § 160.10[2][b]). Rodriguez is presently serving a determinate sentence of 12 years incarceration for the conviction, with the maximum sentence expiration set for May 5, 2027.
Petitioner New York State Office of Victim Services ("OVS" or "the Office") brought this special proceeding pursuant to New York Executive Law § 632-a (the "Son of Sam Law") by Order to Show Cause, dated June 25, 2019, seeking a preliminary injunction enjoining payment of funds to respondent from compensatory damages he is to receive in accordance with a decision of the United States District Court for the Southern District of New York Ralph Rodriguez v The City of New York et al., (15-CV-07945 [ALC][SDA]). The petition is supported by the affidavit of Jonathan Hernandez, identified as the victim of the robbery for which Rodriguez was convicted, in which Hernandez avers that he has a valid claim against respondent and intends to sue immediately now that he is aware that respondent is to receive approximately $32,000 (Pet, Ex C). The Court issued a temporary restraining order on June 25, 2019 and directed respondent to show cause as to why a preliminary injunction should not be issued.
Pro se respondent Ralph Rodriguez submitted a response in which he seeks dismissal of the petition on the grounds that he has (1) maintained his innocence and has an appeal pending from the underlying criminal conviction, and (2) there is no evidence that the crime victim — a store clerk who was forced to hand over items during a robbery — suffered any damages or loss that may be recoverable (Respondent's Response to OVS Petition, dated July 20, 2019 ["Response"] ¶¶ 3-5, 10). Rodriguez also contends that petitioner has failed to satisfy its burden for an injunction under Executive Law § 632-a, as there is no proof of irreparable harm (id. ¶¶ 44-51).
OVS opposes respondent's request and argues that, under the Son of Sam Law, victims of statutorily specified crimes — including robbery in the second degree — are presumed to have suffered compensable damages and have the right to seek relief in accordance with Executive Law § 632-a (Affirmation of Adele Durand, Esq., dated October 7, 2019 ["Durand Aff"] ¶¶ 3-6). Furthermore, counsel contends that, in granting an injunction in this proceeding, the Court need not determine the extent of the crime victim's injuries, and OVS has no obligation to demonstrate such damages, as that is an issue reserved for an action to be brought by the crime victim (Durand Aff ¶¶ 7-12). Counsel also takes issue with respondent's claim that the Office has not shown irreparable harm, because absent an injunction respondent cold dissipate his recovery from his federal suit, before the crime victim could sue for damages (id. ¶¶ 14-17).
As further opposition to respondent's motion and support for the injunction, counsel submits an additional affidavit from Hernandez, in which he provides the following account: On the morning of January 10, 2015, he was the sole employee working at Gamestop, a retail store for video games and accessories (id., Ex 5 [Affidavit of Jonathan Hernandez, sworn to October 5, 2019 ("Hernandez Aff")] ¶ 3). Rodriguez entered the store, and after the other customers left, came around the counter wearing a mask, pulled a gun from his waistband, pointed it at Hernandez's forehead and told him "this gun is real" (Hernandez Aff ¶ 4). After a short verbal exchange during which Hernandez asked Rodriguez not to shoot, Rodriguez ordered Hernandez to turn over various PlayStation consoles and video games on the counter (id. ¶ 5). Respondent then forced Hernandez to the back of the store — with the gun still pointed at his head — so he could retrieve additional video game consoles, which Hernandez was forced to place in a bag that Rodriguez was carrying (id.).
As soon as Rodriguez left the store, Hernandez called the police and described the assailant, and the police arrested Rodriguez minutes later and retrieve the video games, but not the consoles (id. ¶ 7). Hernandez states that he was "traumatized" and suffered "mental anguish" as a result of being victimized by respondent at gun point (id. ¶ 8). The stress of this event, according to Hernandez, affected his work performance and caused him to lose his job (id.).
In a sur-reply, respondent claims that a typographical error in the caption of counsel's affirmation requires that it be treated as a nullity (Sur-Reply from Ralph Rodriguez, dated October 15, 2019 ["Sur-Reply"] ¶¶ 1-2). He also argues that the crime victim's claim for damages is meritless, because the issue of trauma and mental anguish were never previously raised by the victim or petitioner (id. ¶¶ 8-9).
The caption contains an errant reference to "a Judgement Pursuant to Article 78 of the Civil Practice Law and Rules." That error does not create any confusion concerning the petitioner's opposition to respondent's request for dismissal, but merely indicates that the affirmation was "not reviewed with the sharpest of eyes, in order to pick up the typographical errors" (Jesa Medical Supply, Inc. v Geico Ins. Co., 25 Misc 3d 1098, 1100 [Civil Ct, City of New York, Kings County 2009]). Such a defect in an attorney affirmation does not warrant a finding in respondent's favor, as the attorney affirmation has no probative value (see id.). Instead, I must look to the supporting probative factual material provided by petitioner, as well as the governing statute and relevant case law (see id. [court, without giving credence to attorney affirmation containing typographical errors, relied on affidavits from persons with actual knowledge and supporting documents to decide the motion]).
Discussion
New York's "Son of Sam Law" (Executive Law § 632-a) is intended to provide an opportunity for crime victims and their families to obtain full and just compensation from the convicted person who caused their injuries, losses and suffering, and to ensure that, when a convicted perpetrator gains assets with which to pay, he is held financially accountable to the victims (see Matter of New York State Office of Victim Services v Vigo, 162 AD3d 1335, 1336 [3d Dept 2018] [discussing statutory scheme of Executive Law § 632-a], lv denied 32 NY3d 908 [2018]).
Under this statute, "a crime victim of a violent felony offense has 10 years from the date of the crime to bring a civil action against the individual convicted of said crime to recover money damages for any injury or loss resulting therefrom" (id., citing CPLR 213-b[2], Executive Law 632-a[1][d], [e][i][A], Penal Law 70.02[1][a]). The term "violent felony offense" includes the crime of robbery in the second degree, which is a Class C violent felony offense (Penal Law 70.2[1][b]). The ten-year statute of limitations for the crime victim (in this case Hernandez) or his or her family to commence an action for damages begins to run from the date the defendant is convicted (CPLR 213-b[2]).
In the event that the 10-year statute of limitations, or other applicable limitation, has expired before the crime victim is able to commence an action, the Son of Sam Law provides for a renewed three-year statute of limitations, which is not triggered until the crime victim discovers "funds of a convicted person" (New York State Office of Victim Services on Behalf of Carter v Vigo, supra, quoting Executive Law § 632-a[3]).
The last sentence of Executive Law § 632-a(3) provides as follows: "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 office of such discovery, whichever is later."
Here, respondent was convicted at some point in 2015, and thus Hernandez may commence a suit under the applicable ten-year statute of limitations, which expires in 2025. Nevertheless, respondent contends that OVS has not demonstrated that Hernandez is entitled to the benefit of a preliminary injunction during such time. This is not the case.
Under article 63 of the CPLR, a preliminary injunction may be granted when the party seeking such relief demonstrates "a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of the equities in its favor" (Rural Community Coalition, Inc. v Village of Bloomingburg, 118 AD3d 1092, 1095 [3d Dept 2014]). Applying these elements based on my review of the record, petitioner has demonstrated that a preliminary injunction should be issued.
The first prong of the injunction has been satisfied by respondent's conviction for the crime that Henderson claims to have caused him damages (see S.T. Grand, Inc. v City of New York, 32 NY2d 300, 303 [1973] [a criminal conviction is prima facie evidence of the underlying facts in a subsequent civil action]). To the extent respondent contends that his alleged pending appeal of his conviction should act as a bar to the injunctive relief sought by petitioner, no such exemption is provided for under the Son of Sam Law.
In determining what constitutes a "conviction," courts have looked to the definition set forth in the Criminal Procedure Law ("CPL") (see Kasckarow v. Board of Examiners of Sex Offenders of State of New York, 25 NY3d 1039 [2015] [CPL definition of conviction used in construing Sex Offenders Registration Act]; Gunning v Codd, 49 NY2d 496 [1980] [CPL definition used in construing Public Officers Law § 30]). CPL § 1.20(13) defines a conviction as "the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument." Nothing in the statute intimates that an individual has not been "convicted" until his appeals have run their course. Rather, the definition makes clear that the opposite is true, and that is how the term has been understood in other contexts (see Matter of Simon, 146 AD2d 393, 395 [1st Dept 1984] [attorney was subject to statute disbarring him "upon conviction" of a felony, notwithstanding that his criminal appeal was pending]).
The terms of the Son of Sam Law itself also make clear that a "conviction" occurs upon a finding or plea of guilt, not after appeal. Only four categories of funds are excluded under Executive Law 632-a[3] — none of which include funds obtained during the pendency of criminal appeal. Nor would such an exclusion make sense, since it would defeat the statutory purpose by allowing an individual found guilty to dissipate funds from which a victim could potentially recovery so long as an appeal was still active. But under the statute, since respondent is currently a person convicted of a specified crime, all funds and property that he receives from any source are subject to being enjoined to permit a crime victim the opportunity to sue for damages (see New York State Crime Victims Bd. ex rel Organek v Harris, 68 AD3d 1269, 1271 [3d Dept 2009] [finding that where funds of convicted person are not expressly exempt under section 632-a[3], they may be subject to any provisional remedies available to OVS under the statute]). Moreover, if respondent were to be successful in overturning his conviction, he could raise that issue in defense of any action brought by a crime victim that may be pending at such time, or in an application to vacate the injunction (see Ciafone v Kenyatta, 27 AD3d 143, 149 [2d Dept 2005] [Son of Same Law does not enable court to award restitution, but merely affords crime victim opportunity obtain restitution through the commencement of a civil action]).
Furthermore, the harm or irreparable injury under the second prong of the test is made manifest by the possibility that respondent could spend some or all of the funds in his inmate account before a court is able to determine whether he is required to pay those funds to Henderson, thereby thwarting his attempts to enforce any money judgment that he might otherwise receive (see Waldman v State, 163 AD3d 1114, 1115 [3d Dept 2018] [under Executive Law § 632-a[5][c], OVS empowered to avoid wasting of the funds by applying for provisional remedies ordinarily unavailable to individual suing for money damages]; see also New York State Crime Victims Bd. v Majid, 193 Misc 2d 710, 715 [Sup Ct Albany County 2002] [finding that victims and the citizens of the state will be irreparably harmed if a respondent is allowed to spend funds in his inmate account before a court can determine whether the crime victim has a valid claim for damages]).
In light of the above considerations, and the record before me, the balancing of the equities under the third prong of the test weighs in favor of the petitioner (see Majid, 193 Misc 2d at 715).
Respondent also contends that injunctive relief cannot be issued since the crime victim did not suffer physical injury, but there is no such requirement in the law. This is evident from the fact that the statute's "specified crimes" for which a victim may recover damages includes robbery in the second degree, a crime for which conviction does not require physical injury to the victim (see Executive Law 632-a[e][i]).
Under Penal Law § 160.10, a person can be found guilty of robbery in the second degree based on one of several different elements, including when the individual forcibly steals property while displaying what appears to be a pistol or revolver — such as in the case of respondent — without any showing that he physically harmed the victim.
There is also no requirement under the Son of Sam Law, as Rodriguez maintains, requiring OVS to demonstrate the victim's claimed damages as a precondition to obtaining injunctive relief. To the contrary, the injunctive relief provision is specifically designed to afford the victim the opportunity to demonstrate damages during a later proceeding. Thus:
"a crime victim [such as Hernandez] does not stand in the same shoes as a potential ordinary creditor. Indeed, the Legislature went to great lengths to provide avenues to allow crime victims to be compensated for their losses . . . the interpretation of the statute urged [by] respondent to prevent petitioner from obtaining injunctive relief pending the outcome of such a proceeding would render meaningless the provisions bestowing such authority upon petitioner and would defeat the very purpose of the statute" ( Harris, 68 AD3d at 1271).
Accordingly, it is hereby
ORDERED that respondent's application is denied in its entirety; and it is further
ORDERED that the petition is granted; and it is further
ORDERED that, pursuant to Executive Law § 632-a and CPLR Article 63, a preliminary injunction is hereby issued enjoining and restraining Respondent Ralph Rodriguez (Inmate No. 17-A-0928), the Office of the Comptroller of the City of New York, Eileen Monaghan Delucia, Esq. and the Law firm of Holwell, Shuster & Goldberg, LLP, and all other persons or entities that are now, or will be, in possession of the hereinafter specified settlement funds, from in any way disbursing, distributing, encumbering, transferring or assigning, to anyone, and for any reason whatsoever, the $32,000.00 settlement obtain by the Respondent in the United States District Court Southern District of New York action entitled Ralph Rodriguez v The City of New York et al. (15-CV-07945 (ALC)(SDA) (Claim Nos. 2019 PI 006536 and 2015 PI 020045) except that portion of the aforesaid sum of $32,000.00 exempt pursuant to Executive Law § 632-a(3) and CPLR 5205(k) (10% of compensatory damages remaining after first subtracting attorney's fees and disbursements payable to the respondent), which 10% in this matter may be released without further order of the Court.
This constitutes the Decision and Order of the Court. The original Decision and Order is being returned to petitioner's attorney, with a copy to respondent. A copy of the Decision & Order and the supporting papers have been delivered to the County Clerk for placement in the file. The signing of this Decision and Order, and delivery of a copy to the County Clerk shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.
ENTER.
Dated: December 11, 2019 Albany, New York __________ David A. Weinstein Acting Supreme Court Justice Papers Considered: 1. Order to Show Cause and Verified Petition for Preliminary Injunctive Relief, filed June 25, 2019, with Exhibits annexed thereto, including the Affidavit of Jonathan Hernandez, sworn to on April 19, 2019. 2. Response to Order to Show Cause from Ralph Rodriguez, dated July 20, 2019, with Exhibits annexed thereto. 3. Affirmation of Adele Durand, Esq., dated October 7, 2019, with Exhibits annexed thereto, including the Affidavit of Jonathan Hernandez, sworn to on October 5, 2019. 4. Sur-Reply to Petitioner's Affirmation, dated October 15, 2019, with Exhibits annexed thereto.