Children of Bedford, Inc. v. Petromelis

• Decision Date: 26 October 1987
• Citation: 143 Misc.2d 999,541 N.Y.S.2d 894
• Parties: , 17 Media L. Rep. 2189 In the Matter of the Application of CHILDREN OF BEDFORD, INC., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules Annulling the Determination Entered
• Court: New York Supreme Court

Page 894

541 N.Y.S.2d 894

143 Misc.2d 999, 17 Media L. Rep. 2189

In the Matter of the Application of CHILDREN OF BEDFORD INC., Petitioner For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules Annulling the Determination Entered October 26, 1987 Declaring and Ordering that a Certain Book entitled "Stranger in Two Worlds" written by Jean Harris is subject to Executive Law Sect. 632-a v. Angelo PETROMELIS, Gennaro A. Fischetti, George L. Grobe Jr., and Diane McGrath, constituting the Crime Victims Board of the State of New York Respondents.

Supreme Court, New York County, IAS, Part 50L.

April 12, 1989.

Leon Friedman, New York City, for petitioner Children of Bedford, Inc., Jan F. Constantine, New York City, for petitioner Macmillan, Inc. of counsel: Arthur Eisenberg, New York City.

Robert Abrams, Atty. Gen., New York City, for respondents by Howard L. Zwickel and Anne S. Haskell, of counsel.

ISRAEL RUBIN, Justice:

Petitioner foundation, by way of an order to show cause, seeks a judgment annulling the determination of respondent Crime Victims Board, entered October 26, 1987, which declared that the book Stranger in Two Worlds by Jean Harris is subject to the Executive Law, Section 632-a, the so-called "Son of Sam Law." The parties have stipulated, inter alia, that the subject order shall be stayed pending final disposition of this matter, that Macmillan, Inc. shall be added as an intervening petitioner, and that Macmillan, Inc. shall segregate all sums owed to Jean Harris pursuant to a publishing agreement dated March 19, 1985 and hold them for disposition in accordance with the judgment herein.

Section 632-a of the Executive Law provides, in pertinent part:

Every person, firm, corporation, association or other legal entity contracting with any person ... accused or convicted of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, live entertainment of any kind, or from the expression of such accused person's thoughts, feelings, opinions or emotions regarding such crime, shall ... pay over to the board any moneys which would otherwise, by terms of such contract, be owing to the person so ... convicted or his representatives. The board shall deposit such moneys in an escrow account for the benefit of and payable to any victim ... of crimes committed by: (i) such convicted person; or (ii) by such accused person but only if such accused person is eventually convicted of the crime and provided that such victim, within five years of the date of the establishment of such escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment against such person or his representatives. (Executive Law, § 632-a(1)).

In early 1986, respondent Crime Victims Board, upon learning about the existence of a contract dated March 19, 1985 between intervening petitioner Macmillan, Inc. ("Macmillan") and Jean Harris, commenced an investigation to determine if the contract came within the purview of the statute. By letter dated February 10, 1986, the Board requested a copy of the subject contract from Macmillan. In a reply dated February 11, 1986, Macmillan acknowledged that it was familiar with the statute, but stated that it had not submitted a copy of the contract to the Board because it believed, on the basis of sample material it had received, that the book to be written by Jean Harris would concern "the plight of children with mothers behind bars", as a magazine article had described it in January, 1985. The letter went on to state that, when the "raw" manuscript was received in early September, 1985, it was clear that the contents of the book "would differ substantially from what Mrs. Harris had originally submitted and that it was impossible to assess the potential applicability of the statute until the final shaping of the book had been completed."

In its final determination, dated October 26, 1987, the Board found that the contract, which provides for payment of $50,000.00 to Harris upon signing and an additional $50,000.00 upon submission of an appropriate manuscript, is subject to the statute. The Board further determined that a ten percent commission paid to Harris's agent was proper. Therefore, it ordered Jean Harris to pay over to the Board $45,000.00 (net of commission) already received and, upon her failure to pay such amount within 30 days after issuance of the order, it ordered Macmillan to pay such amount. It further ordered that any other amounts due under the contract be turned over to the Board to be held in escrow pursuant to the statute.

Petitioners contend that Section 632-a of the Executive Law violates the First Amendment to the United States Constitution and Article I, Section 8 of the New York State Constitution (although petitioners advance no separate State constitutional argument). Petitioners further claim that the law does not apply to the subject work and that, in any event, the order issued by respondent Crime Victims Board is invalid for failure of the Board to comply with procedural due process requirements.

It is well settled that, while an Article 78 proceeding may be used to determine whether a legislative enactment has been applied in a manner consistent with constitutional requirements (Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 458, 322 N.Y.S.2d 696, 271 N.E.2d 537 [1971], it may not be utilized to review the constitutionality of the enactment itself, requiring that this court convert the matter into a declaratory judgment action (CPLR 103; Matter of Kovarsky v. Hous. & Dev. Administration, 31 N.Y.2d 184, 192, 335 N.Y.S.2d 383, 286 N.E.2d 882 [1972]; see also, Matter of Ames Volkswagen v. State Tax Commn., 47 N.Y.2d 345, 348, 418 N.Y.S.2d 324, 391 N.E.2d 1302 [1979].

It is appropriate to first take up petitioners' argument that due process has not been accorded. They contend that the Board's actions 1) in failing to identify the particular passages of the Harris book which bring it within the ambit of Section 632-a of the Executive Law; and 2) in upholding the findings of one of its members that the work is subject to the statute violate principles of procedural due process.

The procedure employed by the Board in effectuating the statute is set forth in 9 NYCRR 526.1. The rule requires an investigation to be conducted to determine if the contract in question falls within the purview of Section 632-a of the Executive Law. Upon completion of the investigation, the results are incorporated into a proposed determination, notice of which is served upon the parties to the contract, the accused or convicted party and his victims. The parties are advised that the proposed determination will become final 30 days after service, unless a written request for a hearing is received from an interested person. Following receipt of such a request, a hearing is conducted by one or more Board members assigned by the chairman to report on the matter and file written findings with the full Board. Following due consideration of the member's report, the Board issues a final determination containing the findings of fact and conclusions of law which support its decision (9 NYCRR 526.1(f)).

Due process requires only that the parties be afforded reasonable notice of the proceeding and the opportunity to be heard in objection thereto, and what is reasonable may be considered "with due regard for the practicalities and peculiarities of the case ..." (Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 [1950]. The same criteria are applicable to administrative proceedings (Alvarado v. State, 110 A.D.2d 583, 488 N.Y.S.2d 177 [1st Dept.1985].

The propriety of the procedure followed by the Crime Victims Board is not seriously open to question. A board or officer may designate that a hearing be conducted by a board member or a subordinate as long as the ultimate determination is that of the board or officer empowered to make it (Matter of Simpson v. Wolansky, 38 N.Y.2d 391, 380 N.Y.S.2d 630, 343 N.E.2d 274 [1975]. The proposed determination, issued July 28, 1986, contained a detailed statement of the issues involved in this controversy. As such, it must be considered more than adequate notice of the nature of the proceeding (see, Matter of Photo Medic Equip., Inc. v. Suffolk County Dept. of Health Servs., 122 A.D.2d 882, 505 N.Y.S.2d 927 [2d Dept.1986]. Therefore, petitioners were adequately apprised of the issues presented in this administrative proceeding and were heard in opposition to the agency's contentions.

The assertion that the Board failed to identify the specific passages which subject the book to the statute is of no significance. The Board alleged, generally, that material contained within pages 123 and 192 renders the book subject to the law. However, based upon the observations which follow, this court deems it quite unnecessary that specific passages be identified as statutorily objectionable (see, Matter of Fitzgerald v. Libous, 44 N.Y.2d 660, 405 N.Y.S.2d 32, 376 N.E.2d 192 [1978].

Petitioners' contention that the subject work does not fall within the purview of the statute is totally uncompelling. The gravamen of petitioners' argument is that the two chapters, "Harrison, New York: The End of the Line" and "Westchester: The People vs. Jean Harris," which deal with the death of Herman Tarnower, contain only material available from the trial transcript. They maintain, in their memorandum of law, that only original material should be subject to the statute and that it should be construed "to exclude legitimate reference to evidence in the case as part of a general discussion of the trial."

It must be emphasized that the statute contains no exclusion for material which is introduced during trial and which is therefore a matter of public record. Any such...