COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO. 73 June 10, 1997

S. 4412 By: Senator Rath

A. 8012 By: Rules Committee

Senate Committee: Codes

Assembly Committee: Codes

Effective Date: January 1, 1998

AN ACT to amend the civil practice law and rules, in relation to the period of limitation for an action by a victim of a criminal offense

AN ACT to amend the civil practice law and rules and the executive law, in relation to extending the statute of limitations on actions by a victim of a crime and including damages from certain personal injury actions received by person who committed a crime as profits from the crime

LAW AND SECTION REFERRED TO: CPLR § 213-b; Executive Law § 632-A

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (#24)

THESE BILLS ARE PARTIALLY APPROVED

AND PREDOMINANTLY DISAPPROVED

Both bills amend CPLR §213-b to make a statute of limitations in favor of crime victims run from conviction rather than commission of the crime. S1101-A extends the statute of limitations from seven years to twelve years. S5359 extends the statute of limitations until ten years from date of conviction, and creates a superseding limitation of three years from discovery. S5359 also amends Executive Law §632-A, which defines profits of a crime from which a victim of the crime may recover damages, to include any recovery by the criminal for personal injury sustained by the criminal in connection with the crime.

This Committee previously opposed adoption of the recently enacted seven-year statute of limitations for crime victims to seek compensation because it was overbroad. While the bill had the beneficial effect of attempting to protect victims of a crime by substantially enhancing their rights to recover, it applied to petty misdemeanors, as well as to victims of serious crimes. Justification for the law seemed to be self-evident for victims of felonies; the rationale for victims of "offenses" punishable by 15 days or less for mere misdemeanors seemed questionable.

Once a determination has been made to grant a statute of limitations to all crimes, the commencement date of the statute should run from the date of conviction, rather than the date of the crime. To this limited extent, we approve the bills. The commencement date of the statute for petty crimes should be basically irrelevant. In those cases, it is rare that prosecutions occur years after the crime date. On the other hand, in very serious felonies, it is entirely possible for prosecution to occur years later. Indeed, the more serious the felony, the more likely the prosecution may be delayed for various reasons. Since the statute's rationale clearly applies to serious felonies, victims of those felonies should be given the full statutory period from date of conviction to commence proceedings against the criminal.

The need to extend the statutory period from seven to ten or twelve years, however, seems highly questionable. Similarly, the need for an extension of a seven, ten, or twelve year statute of limitations based upon a three-year discovery rule seems also highly questionable. At some time, there must be repose, even if it is for the interest of the judicial system. Evidence and actions more than ten years after the underlying facts becomes very difficult to gather. The burdens on the judicial system from hearing such old cases could well be quite substantial. Since the statute applies to all crimes, not just felonies, the possibility of abuse is evident. The statute may well be used more for harassment resulting from minor crimes than for serious prosecutions of felons.

Conviction of a felony usually brings the facts of the underlying crime to the public. A victim, therefore, should reasonably be able to commence an action within the seven years of the conviction. Unless there is substantial evidence of unfairness, there seems to be no reason even with respect to felonies to permit such an extraordinarily long statute of limitations. At the very least, the legislature should develop some experience with the seven-year statute of limitations and see what happens thereunder before adopting the extraordinary ten-year, twelve-year, and three-year discovery rules.

The expansion of the "proceeds of a crime" to include any personal injury recovery seems to be an inappropriate attempt to correct a legitimate complaint about the judicial system. As a result of comparative negligence, it is currently possible for a criminal who commits a robbery and who is shot in the back upon fleeing, to obtain a judgment of millions of dollars, as has happened in a subway crime in New York City. As a matter of public policy, we agree that criminals should not be able to obtain millions of dollars, or any recovery, as a result of conduct connected to the crime.

This proposal, however, neither eliminates windfalls to the criminal nor assures compensation to victims. The victim is only entitled to recover from the personal injury proceeds to the extent of the victim's damages. It is entirely likely that the victim's damages may well be far less than the amount of money awarded to the criminal. The policy of preventing a criminal from benefiting from the proceeds of his crime should preclude the criminal from any recovery. Moreover, many victims of crimes may be unaware of the criminal's recovery in a personal injury action. Not all personal injury actions receive publicity. Accordingly, many victims who would otherwise be encourage to obtain the proceeds of this crime, will not do so. The far better legislative solution to criminal's recovery as a result of injury sustained in crime is simply to bar such recovery.

For the foregoing reasons, the bill is APPROVED only in limited part and is DISAPPROVED in its majority.

Person Who Prepared The Report: Raymond A. Bragar, Esq.

Chair of the Committee: Paul H. Aloe, Esq.