Johnsen, Matter of

• Decision Date: 10 April 1979
• Citation: 430 N.Y.S.2d 904,103 Misc.2d 823
• Parties: Matter of JOHNSEN (David A. Berkowitz).
• Court: New York Supreme Court

Page 904

430 N.Y.S.2d 904

103 Misc.2d 823

Matter of JOHNSEN (David A. Berkowitz).

Supreme Court, Special Term, Kings County, Part VI.

April 10, 1979.

Seth Rubenstein, P. C., Brooklyn, for Doris Johnsen, conservator

Robert Abrams, Atty. Gen. (William J. Caplow, Asst. Atty. Gen., of counsel), for Crime Victims Compensation Bd.

DECISION

CARMINE A. VENTIERA, Justice.

This proceeding, involving the management and disposition of substantial proceeds derivable from the sale of literary and other rights to the "Son of Sam" tragic events, presents serious issues that are not resolvable by mere reading of the controlling statute as amended, nor is there instructive legal precedent for determination of the issues.

The Successor Conservator has by virtue of her commendable efforts succeeded in obtaining a contract with Lawrence David Klausner (Author) and McGraw-Hill Book Company (Publisher) for publication of the story of David Berkowitz (as yet untitled) wherein the Publisher will advance the sum of $250,000, payable $125,000 on the signing of the contract with this court's approval, $62,500 on March 31, 1979, and $62,500 on delivery of a manuscript acceptable to the Publisher. The estimated royalties may exceed the advance payment.

In the application presently pending before the court, the Conservator seeks approval and authority to execute contracts with the Author, Publisher and a collateral agreement with Jultak & Stern, the former attorneys for Berkowitz.

There is a unanimity of consent among the parties for the execution of contracts with the Publisher and Author in order to secure the monetary windfall from the public's base delight in the ghoulish recounting of the "exploits" of "Son of Sam" the ".44 caliber killer." However, there is strong opposition to the Conservator's receipt and administration of the funds from the Publisher and the Author, and to the unconditional payment to Jultak & Stern for their services in the overall "Production".

Historically, the New York Legislature and the legislatures of our sister states enacted a new statutory concept of aid to victims of crimes. The aid is furnished by the state and is administered by the State Board pursuant to defined procedures. In this state the new act is entitled Crime Victims Compensation Board (Board) and is Article 22 of the Executive Law. Understandably, the amount of the aid is limited.

The sophistication of our society has embellished the field of entertainment to the extent that reading of the "exploits" becomes an acceptable substitute for "live performances in the Roman arena" witness the mad rush of publishers to obtain the literary and motion picture rights to the last days of the condemned murderer who preferred death by execution to life imprisonment. With such an atmosphere of public "beneficence" to the criminal, the Legislature, shocked by the large numbers of vicarious thrill seekers and by the media trumpeting forth each little Berkowitz happening, hastened to debar Berkowitz and others from profiting from their heinous misdeeds.

Section 632-a of the Executive Law, conceived in haste, written in haste, and declared under the cry of the public for the Legislature to exact retribution, reflects its noble spirit, though clothed in loose, vague and inconsistent language.

Fortunately, as noted by the Appellate Division, Second Department, in Barrett v. Wojtowicz, 66 A.D.2d 604, 414 N.Y.S.2d 350 (1979), the statute was amended to remove the inconsistency as to when an action may be brought thereunder. The Appellate Division meticulously hewed to the issue before it and ventured no obiter with respect to the other portions of the section. However, it did note that the legislative jacket contained a report stating "This bill is terribly drafted!! Its intent and objectives should be praised, but it should be vetoed with a promise to resubmit a bill which will (1) be clear; (and) (2) have a chance of surviving a constitutional attack." The same jacket contained a memorandum to counsel for the Governor reading in part: "Obviously, there are many holes in the proposal. * * * Though it may be a little weak on details, the bill is certainly strong and definite as an expression of public policy. We believe the public policy is a good one and should be supported."

This court in its research has found no counterpart to section 632-a in any of our sister states, nor any legal precedents, other than the Barrett case (supra ) wherein the court limited itself to the one issue of limitation of time for the commencement of an action under the statute. To construe and apply the relevant provisions of the statute to the problems presented to this court in administering the funds receivable on the sale of the literary rights, the court will observe and rely on the guidelines of constitutional construction.

The Conservator's attack on the constitutionality of the statute and its provisions with respect to the payments to be received and the deposit thereof in an escrow account centers on the looseness of the language, its vague and undefined scope, yet limited umbrella coverage, and its retroactive effect on the property rights of Berkowitz. However, the Conservator's attack is an alternative position to be advanced and to be considered only if the court's determination is adverse to the relief sought by the Conservator.

This court will hallow the commands that a "statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score" (United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct 658, 659, 60 L.Ed. 1061); that "Legislative enactments are presumed to be constitutional, i. e., they are presumed to be supported by facts known to the Legislature . . . (and that) we must be guided by the familiar principle that 'it is only as a last resort' that courts strike down legislative enactments on the ground of unconstitutionality" (Wiggins v. Town of Somers, 4 N.Y.2d 215, 218, 219, 173 N.Y.S.2d 579, 581, 140 N.E.2d 869, 871; motion for lv. to reargue den. 4 N.Y.2d 1045); that "The cardinal principle to be applied in the construction of statutes is to ascertain and give effect to the intention of the Legislature whenever possible" (Wilson v. Board of Education Union Free School, 39 A.D.2d 965, 966, 333 N.Y.S.2d 868, 871, mod. 32 N.Y.2d 636, 342 N.Y.S.2d 659, 295 N.E.2d 387); that "A statutory enactment must be read in the light of its history and purpose * * * and that construction is to be preferred which furthers the object, spirit and purpose of the statute" (Schuyler v. South Mall Constructors, 32 A.D.2d 454, 455, 303 N.Y.S.2d 901, 903); that "The purpose cannot be defeated or thwarted by selecting and isolating sentences of the statute which seem inharmonious with it. A statute must receive such reasonable construction as will, if possible, make all its parts harmonize and render them consistent with its scope and purpose" (Price v. The County of Erie, 221 N.Y. 260, 266, 116 N.E. 988, 990); that "The literal language of a statute will not always be controlling where it contravenes the legislative intent or leads to an unreasonable result" (Le Drugstore Etats Unis v. New York State Board of Pharmacy, 33 N.Y.2d 298, 302, 352 N.Y.S.2d 188, 191, 307 N.E.2d 249, 255); that "We will not blindly apply the words of a statute to arrive at an unreasonable or absurd result" (Williams v. Williams, 23 N.Y.2d 592, 599, 298 N.Y.S.2d 473, 479, 246 N.E.2d 333) and will observe the teaching that "the letter killeth, but the spirit giveth life." (2 Cor. 3, 6).

To better comprehend the contested provisions and capture the spirit, intent and purpose of the statute, examination and analysis...