In the Matter of New York State Office of Victim Services,, Respondent,v.Steven C. Raucci, Appellant, Shelley Raucci, Nonparty-Appellant.BriefN.Y.January 3, 2013To Be Argued By: Alan J. Pierce Time requested: 15 minutes STATE OF NEW YORI( COURT OF APPEALS Matter of NEW YORK STATE OFFICE OF VICTIM SERVICES, on Behalf of Laura Balogh, Stephen Capitummino, And All Other Victims Of Respondent's Crimes, Petitioner-Respondent, -against- STEVEN C. RAUCCI, Respondent-Appellant, -and- SHELLEY RAUCCI, Nonparty Respondent-Appellant. Albany County Index No.: 5847-2010 REPLY BRIEF OF APPELLANTS STEVEN RAUCCI AND SHELLEY RAUCCI Respectfully Submitted by: Appellate Counsel for Steven Raucci and Shelley Raucci: HANCOCKESTABROOK,LLP Alan J. Pierce, Esq. 100 Madison St., Suite 1500 Syracuse, New York 13202 (315) 565-4500 Counsel of Record for Shelley Raucci: Frank M. Putorti, Esq. 1338 Union St. Schenectady, NY 12308-3008 (518) 382-1044 Dated: December 20,2012 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii PRELIMINARY STATEMENT 1 ARGUMENT 2 POINT I: THE 2001 AMENDMENTS TO THE "SON OF SAM" LAW DID NOT SUB SILENTIO SUPERSEDE THE LONGSTANDING EXEMPTION OF PUBLIC AND PRIVATE PENSIONS FROM EXECUTION BY JUDGMENT CREDITORS IN RETIREMENT AND SOCIAL SECURITY LAW §110 AND CPLR5205 2 A. The Broad Language of the Statute Does Not Supersede RSSL §110 2 B. The Relevant Cannons of Statutory Interpretation Do Not Support Petitioner 6 C. The Legislative History Offers No Definitive Guidance On The Specific Issue Whether The Legislature Intended To Supersede RSSL §110 And CPLR 5205 9 D. The Treyball Decision Is Relevant To The Effect of RSSL §110 12 E. Crime Victims Have Only A Limited "Special Creditor Status" Under The Son Of Sam Law 13 F. The 2011 Pension Forfeiture Law Is Instructive In This Case 15 G. The Only Basis For The "End-Around" Relief Granted Is That It Is "Necessary" 17 CONCLUSION 18 {AJP0036.! } TABLE OF AUTHORITIES Page CASES 64 B Venture v. American Realty Co., 194 AD2d 504 (1st Dep't 1993) 17 Alweis v. Evans, 69 NY2d 199 (1984) 8 Assistance Corp. v. Sales Tax Asset Receivable Corp., 2 NY3d 524 (2004) ....... 8,9 B Venture v. American Realty Co., 194 AD2d 504 (1st Dep't 1993) 17, 18 Besser v. E.R. Squibb & Sons, 146 AD2d 107 (1st Dep't 1989) 8 Board of Education of City of NY v. Treyball, 63 NY2d 980 (1984) 12-13 Bryant v. New York City Health & Hasp. Corp., 93 NY2d 592 (1999) 6,7 Enright v. Ely Lilly & Co., 77 NY2d 377 (1991) 3 Gold Ex ReI. Gold v. United Health Servs. Hosps., Inc., 261 AD2d 67 (3d Dep't 1999), modified 95 NY2d 683 (2001) 13 Jensen v. General Elec. Co., 82 NY2d 77 (1993) 3 Local Govt. Assistance Corp. v. Sales Tax Asset Receivable Corp., 2 NY3d 524 (2004) 8 Matter of Consolidated Edison Co. of NY. v. Department of Envtl. Conservation, 71 NY2d 186 [1988] 8 Matter of Dutchess County Dept. of Soc. Servs. v. Day, 96 NY2d 149 (2001) 7 Matter of Knight-Ridder Broadcasting v. Greenberg, 70 NY2d 151 (1987) 10, 12-13 Pajak v. Pajak, 56 NY2d 394 (1982) 6 {AJP0036.1} 11 Smith-Hunter v. Harvey, 257 AD2d 239 (3d Dep't 1999), lv granted 94 NY2d 755 (1999), reversed 95 NY2d 191 (2000) 2 Town of Caroga v. Herms, 62 AD3d 1121 (3d Dep't), lv denied 13 NY3d 708 (2009) 17 Vatore v. Commissioner of Consumer Affairs, 83 NY2d 645 (1994) 10, 11 STATUTES CPLR 5205 passim Executive Law §632-a passim Retirement and Social Security Law §110 passim Retirement and Social Security Law §§ 156-159 passim {AJP0036.1} 111 PRELIMINARY STATEMENT In its Brief, Petitioner-Respondent the New York State Office of Victim Services ("Petitioner") relies repeatedly on the broad language of the definition of "funds of a convicted person" in the 2001 Amendments to the Son of Sam Law (Executive Law §632-a) as "all funds and property received from any source." Other than this language, the State provides no explanation for the absence of any: (1) specific provision or even mention in the Amendments or their legislative history of Retirement and Social Security Law ("RSSL") §110, CPLR 5205(c) and (d) or public or private pensions, or (2) broad, general clause - such as "notwithstanding any other provision of general, special or local law, rule or regulation to the contrary" - superseding these pension protection statutes that have been in place since 1955 and 1920 respectively. Moreover, contrary to Petitioner's argument (Petitioner's Brief at 3-4) "the 2001 amendment can[] *** be reconciled with the earlier provisions ofRSSL §110" easily by reading them together and giving effect to both statutes, and concluding that the Legislature did not sub silentio supersede RSSL §110 and CPLR 5205(c) when it passed the 2001 Amendments. Several years ago the Third Department concluded in another case that this Court had silently and by implication overruled a 90 year old rule of law regarding malicious prosecution claims, but this Court granted leave to appeal and reversed, holding that it had not {AJP0036.1} 1 done so. See Smith-Hunter v.Harvey, 257 AD2d 239 (3d Dep't 1999), lv granted 94 NY2d 755 (1999), reversed 95 NY2d 191 (2000). This case calls for the same result, albeit here it was the Legislature that the Appellate Division erroneously thought had impliedly and silently superseded and overruled a longstanding rule of law. In short, there is no basis for the injunction seizing the New York State pension of Respondent-Appellant Steven Raucci ("Raucci") that, until it was seized, was supporting his wife, Non-Party Respondent-Appellant Shelley Raucci. ARGUMENT POINT I THE 2001 AMENDMENTS TO THE "SON OF SAM" LAW DID NOT SUB SILENTIO SUPERSEDE THE LONGSTANDING EXEMPTION OF PUBLIC AND PRIVATE PENSIONS FROM EXECUTION BY JUDGMENT CREDITORS IN RETIREMENT AND SOCIAL SECURITY LAW §110 AND CPLR 5205(c) A. The Broad Language of the Statute Does Not Supersede RSSL §110 Petitioner asserts (Brief at 15) that Raucci's main argument - that even without an express exemption in section 632-a, RSSL §110 and CPLR 5205(c) apply of their own force to exempt State pensions - cannot be squared with the "all-encompassing language" of the 2001 Amendments to the Son of Sam Law. Ultimately, Petitioner's main argument is that "this extraordinarily sweeping {AJP0036.1} 2 language is sufficient to establish that Executive Law §632-a as amended supersedes the general exemptions for pension proceeds provided in RSSL §110 and CPLR 5205(c) and (d)." Petitioner's Brief at 16-17. While the language of the Amendments is broad, there is nothing in it that supersedes these longstanding statutes. Petitioner asserts that" [b]ecause nothing in the Son of Sam Law's broad language purports to carve out an exemption from 'funds of a convicted person' for pension proceeds, '[t]he all-encompassing sweep of the "words chosen by the Legislature" leave no room for judicial insertion of qualification or exceptions by interpretation ***." Petitioner's Brief at 17, quoting Jensen v. General Elec. Co., 82 NY2d 77, 83 (1993), quoting Enright v. Ely Lilly & Co., 77 NY2d 377,385 fn1 (1991). Neither case actually supports Petitioner here. In Jensen, this Court held that continuing trespass and nuisance claims were not exempt from New York's toxic tort remedial statute of limitations, CPLR 214-c(2), which by its terms applies to actions for "damages for *** injury to property caused by the latent effects of exposure to any substance." There was no competing statute regarding continuing trespass and nuisance claims. In Enright, this Court held that CPLR 214-c does not create liability for manufacturers of the drug DES to a so-called "third generation" plaintiff. {AJP0036.1} 3 Simply stated, the Legislature did not need to carve out an "exemption" for pensions in the 2001 Amendments when the Legislature had already enacted that exact "exemption" in 1955 in RSSL §110. The definition of "funds of a convicted person" and the creation of two new exemptions to a crime victim's recovery from a convicted person does not alter or change the existence of the exemptions found in RSSL §110 and CPLR 5205(c) and (d). If the Legislature wanted to withdraw the exemption for pensions already found in RSSL §110 and CPLR 5205 it would have clearly amended those statutes in 2001. Two undisputed facts clearly demonstrate that the Legislature did not intend to supersede RSSL §110 and CPLR 5205(c) in the 2001 Amendments. First, it created a new exemption for 10% of a convict's civil recovery in CPLR 5205(k), which means that the Legislature was well aware of CPLR 5205 and did not include any amendment of CPLR 5205( c) and (d) in the 2001 Amendments. Second, the Legislature did not include in the "all funds" language of the revised Son of Sam Law a broad, general clause - such as "notwithstanding any other provision of general, special or local law, rule or regulation to the contrary" - to supersede these longstanding pension protection statutes, as the Legislature frequently does. The Legislature, however, included just this type of broad clause in the 2001 amendments to the Son of Sam Law, but only to the extent of superseding statutes of limitations. See Executive Law §632-a(3) {AJP0036.1} 4 ("Notwithstanding any inconsistent provision of the estates, powers and trusts law or the civil practice law and rules with respect to the timely bringing of an action ***."). Thus, the absence of such a clause in the "all funds" portion of the statute must be presumed to have been deliberate. Finally, Petitioner notes that one of the amendments in 2001 imposed the "notice requirement" of section 632-a(2) on the State Comptroller to notify the office 30 days before issuing a check for payment to a DOCCS inmate "for any reason." State Finance Law §8(12-g), L 2001, ch 62 §4.1 There is no mention of the payment of pensions in this statutory language or the legislative history of this provision, and there are many reasons why the Comptroller would make a payment to an inmate besides a pension. Moreover, even though the Comptroller is subject to this notice provision, Petitioner apparently concedes that the Comptroller never gave notice under the law of pension payments to a "convicted person" that collectively would exceed $10,000 in a very short time, including in this case. The fact that the State Comptroller has apparently never given "notice" for 11 years under the amended Son of Sam Law speaks volumes to the State's view that the Son of Sam Law did not apply to pensions until now. The "notice requirement" is that "any person or entity knowingly contracting to pay a convicted person either profits from a crime in any amount, or any funds exceeding ten thousand dollars, is required to give notice to the office." Executive Law §632-a(2)(a), (b). {AJP0036.1} 5 B. The Relevant Cannons of Statutory Interpretation Do Not Support Petitioner While the Third Department relied on Statutes §74 in its decision, Petitioner does not cite this canon of statutory interpretation, but relies instead on Statutes §213, Pajak v. Pajak, 56 NY2d 394, 397 (1982), and Bryant v. New York City Health & Hasp. Corp., 93 NY2d 592, 608 (1999). It does so for the proposition that "where the legislature intended to exclude a specific type of [property], thereby exempting them from [the reach of the Son of Sam Law], it did so explicitly." Petitioner Brief at 19. As noted above, the "exemption" already existed in RSSL §110 and CPLR 5205 and therefore did not need to be repeated in the 2001 Amendments. Petitioner itself calls RSSL §110 and CPLR 5205( c) "exemptions." Petitioner Brief at 18. Statutes §213, which states that "[a]n exception is part of the enactment itself absolutely excluding from its operation some subject or thing that otherwise would fall within its scope," adds nothing to this Court's analysis here. Petitioner apparently relies on it now because Appellants' Brief demonstrated that Statutes §74 does not support the Third Department's decision. Similarly, as noted in Appellants' Brief (at 31, fn 8), Pajak does not lead to the conclusion that the Legislature sub silentio superseded RSSL §110 in this case either. Finally, Bryant involved three "nuts-and-bolts questions" concerning the calculation of damages under the newly enacted structured judgment statutes, CPLR Articles 50-A and 50- {AJP0036.1} 6 B. 93 NY2d at 598. In determining that plaintiffs recovery should be offset by Social Security survivor benefits, this Court wrote that "CPLR 4545(a) and (c) list categories of potential collateral sources that can offset recovery, and where the Legislature intended to exclude a specific type of payment or benefit within those categories - thereby exempting them from offset - it did so explicitly ***." Id. at 608. Here, the Legislature has provided a "specific exclusion or exemption" from the Son of Sam Law in both RSSL §110 and CPLR 5205(c). Petitioner also makes the argument that the "older, more general provisions" of RSSL §110 and CPLR 5205 "are subordinate to the more recent and specific dictates" of the revised Son of Sam Law, citing Matter of Dutchess County Dept. of Soc. Servs. v.Day, 96 NY2d 149,153 (2001). Petitioner's Brief at 19. Neither this argument nor Day supports Petitioner as detailed in Appellants' Brief at 32-33. Moreover, this argument raises the issue which really is the more "specific" statute on the issue of pensions? RSSL §110 is more specific on the issue of seizing a pension by a crime victim who is merely a "potential" judgment creditor. Thus, which statute is more "specific" depends on how you ask the question or define the issue, which clearly indicates this is not the solution to this case. Finally, at page 20 of its Brief Petitioner acknowledges that the "implied repeal or modification of a pre-existing law" is disfavored, but asserts this is a case where "the two are in such conflict that it is impossible to give some effect to both, {AJP0036.! } 7 at least so far as the public pension proceeds at issue here are concerned," citing Local Govt. Assistance Corp. v. Sales Tax Asset Receivable Corp., 2 NY3d 524, 544 (2004), quoting Alweis v. Evans, 69 NY2d 199,204 (1984). The relevant portion of this Court's decision in Local Govt. cited and partially quoted by Petitioner is particularly pertinent and bears repeating here: The interpretation that LGAC urges this Court to give to the Act would require us to find that the Legislature modified or repealed Public Authorities Law § 3241(1) by implication. For us to do so would be to ignore the fundamental tenet of statutory construction that implied repeal or modification ofa preexisting law is distinctly disfavored (see Iazzetti v. City a/New York, 94 NY2d 183, 189 [1999]; Matter a/Consolidated Edison Co. a/NY v. Department 0/ Envtl. Conservation, 71 NY2d 186, 195 [1988]; Besser v. E.R. Squibb & Sons, 146 AD2d 107, 114 [1st Dept 1989], affd 75 NY2d 847 [1990]). "[TJhe judiciary should not lightly infer that the Legislature has repealed one of its own enactments when it has failed to do so expressly; the Legislature is hardly reticent to repeal statutes when it means to do so" (Alweis v. Evans, 69 NY2d 199,204 [1987]). Generally, a statute impliedly repeals a prior statute "only if the two are in such conflict that it is impossible to give some effect to both" (id.). "If by any fair construction, a reasonable field of operation can be found for [both] statutes, that construction * * 14 should be adopted" (People v. Newman, 32 NY2d 379,390 [1973]). Thus, in the absence of some expressed legislative intent to limit or repeal the State's guarantees to LGAC's bondholders under Public Authorities Law § 3241 (1), we will not interpret the Act to have that effect. Rather, harmonizing the provisions of the statute, as we must (see Alweis v. Evans, 69 NY2d at 204), we conclude that while section 3238-a requires LGAC to make annual payments to the City, it does not modify or repeal the State's pledge to honor the contractual rights and remedies ofLGAC's bondholders pursuant to section 3241(1). Local Govt., 2 NY3d at 544 (emphasis supplied). {AJP0036.1} 8 Petitioner has simply not met its extremely heavy burden under these established precedents to show either an "expressed legislative intent to limit or repeal" RSSL §110 and CPLR 5205( c) or that the Son of Sam Law and RSSL §110 "are in such conflict that it is impossible to give some effect to both." Id. "[H]armonizing the provisions of the statute[s], as *** [this Court] must," compels the conclusion that the 2001 Amendments to the Son of Sam Law did not sub silentio supersede RSSL §110 and CPLR 5205. Id C. The Legislative History Offers No Definitive Guidance On The Specific Issue Whether The Legislature Intended To Supersede RSSL §110 And CPLR5205 Just as we have, Petitioner has combed the legislative history of the 2001 Amendments and it acknowledges that there is absolutely no mention of pensions, RSSL §110 or CPLR 5205( c) and (d) in the legislative history. Petitioner's Brief (at 21) asserts that "there is no indication in the legislative history that public pension proceeds were to be exempted from the broad statutory mandate." On the other hand, since pensions and RSSL §110 is not even mentioned in the legislative history, there is no indication therein that RSSL §110 was to be overruled or superseded by the 2001 Amendments to the Son of Sam Law. Once again, this means that the Court must harmonize and read the statutes together to achieve the intended purpose of both statutes. {AJP0036.1} 9 As Petitioner admits (Brief at 21), the legislative history repeatedly states that the amendments would enable crime victims to recover property received by or on behalf of a convicted person ''from virtually any source." Senate Introducer Memorandum in Support, L. 2001, ch. 62, reprinted in 2001 McKinney's Session Laws of N.Y. at 1305 (A12) (emphasis supplied); Governor's Approval Mem., Bill Jacket, L. 2001, ch. 62, at 2 (A22); Budget Report, Bill Jacket, L. 2001, ch. 62, at 9 (A29). "Virtually any source" is not "every source." While the legislative history mentions several examples of the new sources of "wealth" now available to crime victims for recovery from criminals, including gifts, bequests, income, civil recoveries, inheritance, money judgment, investment income, and lottery winnings, (A17, A22, A30), there is absolutely no mention of "pensions" or "retirement allowances." The cases cited in Petitioner's Brief (at 22) for the proposition that a sponsor's memorandum "while not determinative, 'is entitled to considerable weight in discerning a legislative intent' " are neither applicable here nor supportive because the sponsor's memorandum provides no definitive evidence of a legislative intent to supersede RSSL §110 or CPLR 5205( c). Vatore v. Commissioner of Consumer Affairs, 83 NY2d 645,651 (1994), quoting Matter of Knight-Ridder Broadcasting v. Greenberg, 70 NY2d 151, 158 (1987). Vatore, in which this Court held that the Legislature, in enacting the Adolescent Tobacco-Use {AJP0036.1} 10 Prevention Act, Public Health Law art 13-F, did not intend to preempt local municipal regulation of tobacco sales and distribution through vending machines in public places and, therefore, Local Law No. 67 of the City of New York was valid, is distinguishable on the point for which it is cited by Petitioner. There the "Joint Sponsors' Memorandum" and a letter from the General Counsel of the Department of Health in support of the law "explicitly interpreted the Act to 'permit[] localities to adopt additional provision[s] which comply with at least the minimum requirements of the vending machine provisions of this act.'" 83 NY2d at 651. In fact, Vatore actually supports Raucci. This Court noted that the statute contained one "specific, limited preemption provision," which "supports our holding that the Act has no implied general preemptive effect" because" [u]nder generally applicable principles of statutory construction, the inference to be drawn from the Legislature's having given preclusive effect to one section of article 13-F is a concomitant intention not to give preclusive effect to any other section of article 13-F (see, McKinney's Cons Laws of NY, Book 1, Statutes § 240 ***)." Id. at 650. Further, this Court wrote that "[h]ad the Legislature intended that the remainder of article 13-F have a general preemptive effect, it could have so stated," and that it was "particularly significant [that] *** the State statute was enacted after the enactment of Local Law No. 67." Id. at 650. Similarly, in this case, the 2001 Amendments came long after the enactment ofRSSL §110, and the {AJP0036.1} 11 Amendments contained one express override of existing law - the statutes of limitations contained in "the estates, powers and trusts law or the civil practice law and rules." See Executive Law §632-a(3). Thus, the absence of such a clause in the "all funds" portion of the statute must be presumed to have been deliberate.2 D. The Treybal/ Decision Is Relevant To The Effect of RSSL §110 Petitioner's Brief (at 12,23) asserts that the "dicta" in this Court's decision in Board a/Education a/City o/N.Y. v. Treyball, 63 NY2d 980 (1984) "does not control this case." In reality, Petitioner is not giving proper weight to this Court's decision in Treyball with respect to the effect ofRSSL §110. The Third Department held, and Petitioner acknowledges, that Treyball held that "section 110 shields a retirement allowance from creditors both while the funds are in the possession and control of the Retirement System and after disbursement to retirees." (A264-265) Thus, the determination in Treyball was not dicta regarding RSSL §110. The decision simply did not involve the Son of Sam Law, but that does not make this Court's ruling dicta with respect to the effect of §110. Petitioner's argument begs the question: is there any mention in the legislative 2 Knight-Ridder is certainly no more helpful to Petitioner. In that case this Court accepted the Attorney General's interpretation newly enacted legislation over the view expressed in the Sponsor's memorandum, and specifically noted that "[t]he views of one legislator, however, are not necessarily revealing of the legislative intent ***." 70 NY2d at 159. {AJP0036.1} 12 history to the 2001 Amendments regarding overruling or superseding Treyball? No, there is not. Thus, this Court cannot infer that the Legislature intended to overrule or supersede Treyball when it amended the Son of Sam Law in 2001. 3 Finally, Gold Ex Rei. Gold v. United Health Servs. Hosps., Inc., 261 AD2d 67,72 fn 5 (3d Dep't 1999) (Graffeo, J.), modified 95 NY2d 683 (2001), cited in Petitioner's Brief (at 24), does not, as Petitioner states, "control this case." E. Crime Victims Have Only A Limited "Special Creditor Status" Under The Son Of Sam Law Petitioner asserts that the Son of Sam Law gives crime victims "special creditor status." Petitioner's Brief at 14, 25-26. This is true in only one respect. The Son of Sam Law allows a crime victim to freeze and seize a convicted person's assets without a judgment, a pre-judgment remedy that an "ordinary creditor" cannot do. While this is a tremendous advantage for a crime victim, it is 3 As this Court stated in Knight-Ridder, 70 NY2d at 150 (emphasis supplied): It is well settled that the legislative history of a particular enactment must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with and to the extent it left it unchanged, that it accepted * * * . Where the interpretation of a statute is well settled and accepted across the State, it is as much a part of the enactment as if incorporated into the language of the act itself *** . Consequently, any intention to change such a well- established rule must emanate from the Legislature and may not be imputed to the Legislature in the absence of a clear manifestation of such intent * * * . {AJP003 6.1 } 13 the only "special" status provided to a crime victim in the Son of Sam Law. The statute provides no other "special" benefits vis-a-vis RSSL §110 and CPLR 5205(c) and (d). Petitioner also asserts that "nor is there any merit to Raucci's argument that Raucci's wife should have a right to his pension proceeds that is superior to the right of his victims. To be sure, upon a divorce, Ms. Raucci would be able to enforce her marital rights against the pension proceeds under this Court's decision in Majauskas, notwithstanding RSSL §110." Petitioner's Brief at 26-27. Petitioner goes on to state that Shelley Raucci's interest in the pension is at most "an inchoate one, since Raucci and Ms. Raucci are still married and no judgment providing for the equitable distribution of their marital property has been entered." Id. at 27. What Petitioner ignores is that no judgment been entered in favor of any crime victims at this point, and therefore their right to Raucci's pension is merely "inchoate" as this time as well. But according the Appellate Division Petitioner can take Raucci's pension away from his wife now. Petitioner does not address the complicated issues of superior rights to Raucci's pension if Shelley Raucci were to divorce him, or for that matter what will happen when any spouse of a "convicted person" entitled to a pension divorces that spouse to make sure that his or her crime victims do not take away the innocent spouse marital right to a portion of the pension. If an innocent spouse like Shelley Raucci is awarded 50% of a convicted {AJP0036.1 } 14 person's pension by equitable distribution, will the innocent spouse be able to recover 50% of the pension that has already been seized by injunction under the Son of Sam Law as well as 50% of the future payments? Notably, the Son of Sam Law and its legislative history provide no answers to these difficult issues because the Legislature never intended to invade a convicted person's pension by superseding RSSL §110 in the 2001 Amendments.4 Petitioner appears to argue that these issues are not ripe for consideration, arguing that "Raucci's suggestion that the Third Department's holding will encourage divorce (Br. at 36) is a policy argument that is better addressed to the Legislature." Petitioner's Brief at 28. That is ironic since according to Petitioner the Legislature created this problem. In fact, it will be the courts of this State that will have to address these thorny issues unless the decision below is reversed. F. The 2011 Pension Forfeiture Law Is Instructive In This Case Petitioner argues that the 2011 Pension Forfeiture Law (RSSL Art. 3-B, L 2011, ch 399, pt C) "is not relevant here" because it "accomplishes something 4 It is not inconceivable that if this Court affirms the Third Department's decision, innocent spouses will be running to court to file for divorce even before their spouse is convicted of crimes so long as there is a substantial pension involved. Moreover, these innocent spouses no longer have to rely on the old, traditional grounds for divorce in New York, including imprisonment for at least three years, but can now file on the grounds of an "irretrievable break down" in the relationship. See Domestic Relations Law §170(3), (7). {AJP0036.1 } 15 much more drastic that §632-a" and "sheds no light on whether [the Legislature] intended the Son of Sam Law to supersede RSSL §110." Petitioner's Brief at 29. To the contrary, the way the Legislature enacted the Pension Forfeiture Law demonstrates that the Legislature knows how to supersede RSSL §110 when it wants to. It placed the pension forfeiture statute in the RSSL and it specifically included the broad superseding language "notwithstanding any other law to the contrary" in the statute. RSSL §157(1). With regard to Petitioner's inaction in going after pensions of convicted persons since the 2001 Amendments, the State notes two cases where it did seek to seize inmate accounts that included, but were not made up entirely of, pension proceeds. Notably, the two pro se inmates in those cases did not argue RSSL §110 and the courts in these two cases did not find that the 2001 Amendments superseded RSSL §11O. Appellants' Brief did not argue that Petitioner was now "estopped" from bringing this proceeding because of their inaction. The point is that given that the Comptroller has never provided the required "notice" of pension payments to Petitioner and Petitioner has almost never sought to seize pension funds under the Son of Sam Law in almost 11 years speaks volumes about the correct interpretation of the statute. Appellants have certainly provided numerous examples of notorious criminals with large state pensions that Petitioner could {AJP0036.1} 16 have pursed if it actually believed that the 2001 Amendments allowed Petitioner to seize pensions notwithstanding RSSL §110. G. The Only Basis For The "End-Around" Relief Granted Is That It Is "Necessary" Petitioner's Brief (at 30-31) asserts that "there was nothing wrong with the injunctive relief that the Third Department granted, which simply deems Raucci, his agents or assigns[,] to have directed the [Retirement] System to pay him at the correctional facility where he is now incarcerated for deposit in his inmate account rather than at his former residence." Petitioner's argument in favor of this unusual and unauthorized remedy, not found in the Son of Sam Law or anywhere else: "The requested relief is necessary here." Id. at 31. Petitioner also argues that the relief was within the Court's "inherent plenary power to fashion any remedy necessary for the proper administration of justice, and in effect views that it is necessary and therefore appropriate," quoting 64 B Venture v. American Realty Co., 194 AD2d 504 (1st Dep't 1993), and citing Town a/Caroga v.Herms, 62 AD3d 1121, 1125-1126 (3d Dep't), lv denied 13 NY3d 708 (2009). In Herms, the court found that the penalty imposed by Supreme Court was not excessive because "with reference to [violation of] zoning regulations, removal of offending structures is among the appropriate remedies ***." Id. at 1126. Moreover, the issue in 64 B was whether Supreme Court properly exercised {AJP0036.1} 17 its equitable powers to appoint a receiver to operate a nursing home. 194 AD2d at 504. This is completely insufficient authority for this "end around" the facts of this case. If all that was required to obtain a convenient remedy is that "it is necessary," the courts would create chaos. CONCLUSION For all of the foregoing reasons, we respectfully request that this Court revers the Order of the Appellate Division, and remit this Proceeding to the Supreme Court for entry of an Order denying Petitioner's motion for a preliminary injunction and dismissing this proceeding, together with such other and further relief as to the Court seems just and equitable. DATED: December 20, 2012 Respectfully Submitted by: ATTORNEYS FOR RESPONDENTS-ApPELLANTS Appellate Counsel for Steven and Shelley Raucci: By: 100 Madison St., Suite 1500 Syracuse, New York 13202 (315) 565-4500 Counsel of Record for Shelley Raucci: Frank M. Putorti, Esq. 1338 Union St. Schenectady, NY 12308-3008 (518) 382-1044 {AJP0036.1} 18