Matter of Demesyeux (Demesyeux, Jr.)

Annotate this Case
[*1] Matter of Demesyeux (Demesyeux, Jr.) 2013 NY Slip Op 50547(U) Decided on March 29, 2013 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2013
Sur Ct, Nassau County

In the Matter of the Application of Innocent Demesyeux, as Administrator of the Goods, Chattels and Credits which were of

against

Innocent Demesyeux, Jr., Deceased, For Leave to Compromise a Certain Cause of Action for Wrongful Death of the Decedent and to Render and Have Judicially Settled an Account of the Proceedings as Such Administrator. In the Matter of the Application of Innocent Demesyeux, as Administrator of the Goods, Chattels and Credits which were of MICHAEL DEMESYEUX, Deceased, For Leave to Compromise a Certain Cause of Action for Wrongful Death of the Decedent and to Render and Have Judicially Settled an Account of the Proceedings as Such Administrator.



In the Matter of the Application of Innocent Demesyeux, as Administrator of the Goods, Chattels and Credits which were of MICHAEL DEMESYEUX, Deceased, For Leave to Compromise a Certain Cause of Action for Wrongful Death of the Decedent and to Render and Have Judicially Settled an Account of the Proceedings as Such Administrator.



350391/A

Edward W. McCarty, J.



In these miscellaneous proceedings, the guardian ad litem for Leatrice Brewer seeks an order directing the unsealing of Family Court records in the criminal proceeding relating to her ward.

Innocent Demesyeux Jr. and Michael Demesyeux were both five years of age at the time of their deaths. It is undisputed that the children died by being drowned in the bathtub by their mother, Leatrice Brewer. The children's father, Innocent Demesyeux, received limited letters of administration and commenced a wrongful death action against the County of Nassau. The proceeding was settled for a total of $250,000.00 ($125,000.00 for Innocent and $125,000.00 for Michael). The father has now commenced a proceeding to compromise the wrongful death action and settle his account. As part of his petition, the petitioner requests that the mother, Leatrice Brewer, be held to have forfeited her interest in the children's estates based on the doctrine of Riggs v Palmer (115 NY 506 [1889]),that a wrongdoer should not profit from her own wrong. In the criminal action, Leatrice Brewer entered a plea on February 9, 2010 of "not [*2]responsible by reason of mental disease or defect" in relation to the boys' deaths. After entering her plea, Leatrice Brewer was held in civil confinement in the Mid-Hudson Forensic Psychiatric Center, where she is still being held.

In connection with these proceedings, a guardian ad litem was appointed to represent Leatrice Brewer's interests. In furtherance of her duties, the guardian ad litem attempted to review certain records in the Family Court and in connection with the criminal proceeding concerning the children's deaths. The guardian ad litem, however, was given only limited access to the records and was told that a court order would be necessary in order to unseal those records. Accordingly, the guardian ad litem has filed an interim report seeking such an order.

It is well established law that one who takes the life of another should not be permitted to profit from his own wrong and shall be barred from inheriting from the person slain (Riggs v Palmer, 115 NY 506 [1889]; Matter of Covert, 97 NY2d 68 [2001]; Matter of Miller, 17 Misc 2d 508 [Sur Ct, Nassau County 1959]; Matter of Sparks, 172 Misc 642 [Sur Ct, New York County 1939]). In Riggs v Palmer (115 NY 506, 511 [1889]), the Court of Appeals articulated the basic principle that "[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime." Although there is no express statutory provision denying, to one who killed, the right to inherit from his victim (but cf.EPTL 4-1.6 regarding joint bank accounts), numerous cases since Riggs v Palmer have reaffirmed the applicability of the common-law general principle that one should not be permitted to profit by taking the life of another and, in particular, that one who feloniously murders shall not be entitled to share in his victim's estate (Matter of Covert, 97 NY2d 68 [2001]; Petrie v Chase Manhattan Bank, 38 AD2d 206 [1st Dept 1972], mod 33 NY2d 846 [1973]; Matter of Jacobs, 2 AD2d 774 [2d Dept 1956], affd 3 NY2d 723 [1957]; Bierbrauer v Moran, 244 App Div 87 [4th Dept 1935]; Matter of Kirkman, 120 Misc 2d 278 [Sur Ct, Broome County 1983]; Matter of Bach, 81 Misc 2d 479 [Sur Ct, Dutchess County 1975], affd 53 AD2d 612 [2d Dept 1976]; Matter of Grey v Levitt, 76 Misc 2d 720 [Sup Ct, Albany County 1974]; Matter of Loud, 70 Misc 2d 1026 [Sur Ct, Kings County 1972]; Matter of Miller, 17 Misc 2d 508 [Sur Ct, Nassau County 1959]). These cases hold essentially that there is no vesting of the estate in the wrongdoer because the crime precludes the wrongdoer from becoming a distributee (Matter of Sparks, 172 Misc 642 [Sur Ct, New York County 1939]; Matter of Wolf, 88 Misc 433 [Sur Ct, New York County 1914]).

The application of the Riggs v Palmer principle is not always straightforward, and not all wrongful conduct will disqualify a person as a distributee (5 Warren's Heaton, Surrogate's Court §74.13 [7th ed rev]). In Matter of Eckhardt (184 Misc 748 [Sur Ct, Orange County 1945]), a woman, who was a somnambulist, killed her husband. She was acquitted on the grounds that she did not know the nature and quality of her act. The court reasoned that the wife was not profiting from her own wrong since she had not done anything "legally wrong." Similarly, there is some authority that if the killing was unintentional or accidental, the rule will not be applied (Matter of Savage, 175 Misc 2d 880 [Sur Ct, Rockland County 1998] [holding that one who kills by accident does not forfeit the right to inherit from the decedent]; Matter of Wolf, 88 Misc 433 [Sur Ct, New York County 1914] [husband convicted of manslaughter for killing his wife was permitted to take as a distributee where it appeared that he killed her when he really intended to kill her paramour]). [*3]

This court has held that "[a] criminal conviction either by plea or after trial is conclusive proof of its underlying facts in a subsequent civil proceeding and collaterally estops a party from relitigating the issues" (Estate of Mirissis, NYLJ, Mar. 16, 1993, at 25, col 3, [Sur Ct, Nassau County] citing Merchants Mut. Ins. Co. v Arzillo, 98 AD2d 495 [2d Dept 1984]; Grayes v DiStasio, 166 AD2d 261 [1st Dept 1990]). In Mirissis, this court held that a de novo hearing was not necessary in order to prove that the wrong was intentional where the killer entered a plea to manslaughter in the first degree (see also Matter of Loud, 70 Misc 2d 1026 [Sur Ct, Kings County 1972]). Nevertheless, this court held that before declaring a forfeiture on the part of the killer, "the court should review the transcript of the minutes of the pleas." Likewise, the court found that since "the record of conviction indicates that a notice of appeal was filed . . . the guardian ad litem should report on the status of same" (Estate of Mirissis, NYLJ, Mar. 16, 1993, at 25, col 3 [Sur Ct, Nassau County]).

Other courts have similarly held that "[a] criminal conviction, whether by plea or trial, is conclusive proof of the same facts in subsequent civil proceeding and collateral estoppel bars a defendant from relitigating those issues that were raised, or may have been raised, in the criminal proceeding." (Matter of Savage, 175 Misc 2d 880, 882 [Sur Ct, Rockland County 1998]; see also Estate of Camerlengo, NYLJ, Nov. 3, 2000, at 31, col 2 [Sur Ct, Richmond County] [no hearing to disqualify respondent as a distributee was necessary where respondent was found guilty after trial of two counts of murder in the second degree and one count of assault]; Mark G. v Sabol, 180 Misc 2d 855 [Sup Ct, New York County 1999] [no disqualification hearing required where respondent pleaded guilty to first degree manslaughter of the decedent]; Matter of Kirkman, 120 Misc 2d 278 [Sur Ct, Broome County 1983] [no hearing de novo required where there was a conviction of murder in the second degree after trial]).

In the instant proceedings, the guardian ad litem states that it is "absolutely imperative that . . . [she] review and analyze the Criminal Court Files and the Family Court Files in order to assess Petitioner's application to disqualify Ms. Brewer as a distributee . . . " The guardian ad litem states that she cannot effectively represent Ms. Brewer without access to these records, which are the foundation upon which petitioner's application is based.

Family Court Act §166 "Privacy of Records" provides as follows:

"The records of any proceeding in the family court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records. Any duly authorized agency, association, society or institution to which a child is committed may cause an inspection of the record of investigation to be had and may in the discretion of the court obtain a copy of the whole or part of such record."

In addition, Uniform Rule §205.5 of the Family Court Act provides, in pertinent part, as follows:

"Subject to limitations and procedures set by statute and case law, the following shall be permitted access to the pleadings, legal papers formally filed in a proceeding, findings, decisions and orders and, subject to the provisions of CPLR 8002, transcribed minutes of any hearing held in the proceeding: . . . [*4]

(e) another court when necessary for a pending proceeding involving one or more parties or children who are or were the parties in, or subjects of, a proceeding in the Family Court pursuant to Articles 4, 5, 6, 8 or 10 of the Family Court Act. Only certified copies of pleadings and orders in, as well as information regarding the status of such Family Court proceeding may be transmitted without court order pursuant to this section. Any information or records disclosed pursuant to this paragraph may not be re-disclosed except as necessary to the pending proceeding."

Family Court Act §166 does not render Family Court records confidential, but merely provides that they are not open to indiscriminate public inspection (Schwahl v Grant, 47 AD3d 698 [2d Dept 2008]). Accordingly, the court in its discretion in any case may permit the inspection of any papers or records. In Schwahl, the Second Department affirmed the order of the Supreme Court of Suffolk County providing for an in camera review of Family Court records in a proceeding for medical malpractice. The Second Department found that the Supreme Court "properly exercised its discretion in concluding that the Family Court records sought to be discovered were material and relevant to the plaintiff's theory of causation of the infant's injuries, and even as to whether the infant plaintiff's injuries exist" (Schwahl v Grant, 47 AD3d 698, 699 [2d Dept 2008]). The Second Department also pointed out that in "an effort to preserve confidentiality to an appropriate extent, the Supreme Court first conducted an in camera review of the Family Court records" (Schwahl v Grant, 47 AD3d 698, 699 [2d Dept 2008]). Similarly, in Matter of Kennedie M. (89 AD3d 1544 [4th Dept 2011]), the Fourth Department held that "[t]he court providently exercised its discretion in ordering the disclosure of . . . the father's substance abuse treatment records inasmuch as those records were clearly relevant to its determination on the issue of neglect. The court's finding of good cause is supported by the record" (Matter of Kennedie, M., 89 AD3d 1544, 1545 [4th Dept 2011]).

In Matter of J. Children (101 Misc 3d 479 [Fam Ct, Kings County 1979]), the Society for the Prevention of Cruelty to Children moved for an order directing that the minutes of the Family Court proceeding be forwarded to the District Attorney for the purpose of bringing possible criminal charges for perjury against the respondent. The court stated as follows:

"The primary purpose of section 166 of the Family Court Act and its progeny is to avoid public dissemination of legal disputes involving family problems . . . The crux of that section (Family Ct Act §166) turns on the interpretation accorded to the language indiscriminate public inspection.' Factors upon which such a determination should be made . . . include the person or official making the request, the purpose for which the information is needed and the possibility for improper disclosure." (Matter of J. Children, 101 Misc 2d 479, 480 [Fam Ct, Kings County 1979]).

Here, the guardian ad litem's ward was representing a party in the prior Family Court proceeding. Morever, the records are relevant to the issue of her ward's forfeiture. Nevertheless, although this court believes that there is good cause for the guardian ad litem to review the Family Court records as they are material and necessary to the forfeiture of her ward's interest in the estates of her children, the application must be made to the Family Court, since this court is not a court superior to the Family Court. Only a superior court can entertain such an application [*5](M.S. Housing Assoc. v Williams, 13 Misc 3d 1233A [Civ Court, New York County 2006]). The Family Court and the Surrogate's Court are courts of concurrent jurisdiction. Accordingly, the guardian ad litem is granted permission to make an application to the Family Court to unseal the records. In order, however, to preserve some element of confidentiality, if the Family Court orders the unsealing of the records, the documents shall be subject to an in camera inspection by this court (see Chow v Boonyam, 240 AD2d 737 [2d Dept 1997]).

With respect to the guardian ad litem's request for an order to unseal records in the criminal proceeding, the guardian ad litem relies upon CPL §160.50. CPL §160.50 requires that records be sealed where the criminal action is terminated in favor of the accused. The statute goes on to identify those instances which constitute a termination "in favor of the accused." In People v Schleyer (192 Misc 2d 113 [City Court, Rochester 2002]), the court stated as follows:

"It has long been recognized that the public has a right of access to court records . . . This right, however, is not absolute and in certain limited situations, authorized by statute, court records are sealed'. . . The Legislature was very specific and explicitly spelled out with particularity in CPL §160.50 those instances that will be deemed a determination in favor of the accused . . . The Legislature's intent is clear and unambiguous, there is no room for judicial interpretation . . . ." (People v Schleyer, 192 Misc 2d 113, 115-116 [City Court, Rochester 2002]).

The purpose of the sealing provision of CPL §160.50 is to ensure confidentiality and to protect the individual from the potential public stigma associated with a criminal prosecution (Abrams v Skolnik, 185 AD2d 407, 408 [3d Dept 1993]). The benefit of sealing is a statutory privilege and can be waived when the protected individual affirmatively places in issue elements that are common or related to the prior criminal action (Abrams v Skolnik, 185 AD2d 407, 408 [3d Dept 1993]).

In order to determine whether sealing is appropriate under the statue, it must be determined whether a proceeding terminated in favor of a person who was the subject of the criminal proceeding. Subdivision (3) of CPL §160.50 lists 12 types of terminations that qualify as a termination in favor of a defendant. In Matter of Anonymous (174 Misc 2d 333 [Sup Ct, Kings County 1997]), the court was faced with the question whether sealing was meant to apply to a person acquitted of a crime by reason of mental disease or defect. The court stated as follows:

"Persons acquitted of a crime by reason of mental disease or defect constitute an exceptional' or special' class. The effect of such an acquittal is limited. In contrast to other acquittees, an insanity acquittee is kept in the custody of the State after being found not guilty' . . .Insanity acquittees are individuals who have admittedly committed or have been proven to have committed what would normally be a crime, but who have been relieved of the penal sanctions of criminal liability as a result of their success in convincing a Judge or jury that they were insane. It has been forcefully said, and with much logic, that [a]lthough acquittal represents a lack of criminal culpability, and therefore makes punitive treatment inappropriate, reliance on the insanity defense is tantamount to an admission that the person performed the criminal act in question and has therefore been dangerous to the community. An individual acquitted by reason [*6]of mental disease and defect is not a person who was charged with an unsustained accusation', but is a person who committed what would normally be a crime'. The insanity defense is a reflection of society's compassionate belief that such a person not be criminally punished. Such a person, however, does not escape complete punishment, but is kept in society's custody, albeit in a different setting.

In sum, the defense of mental disease or defect, also may be properly considered a complete defense in the sense that, if believed, it would relieve the defendant of responsibility for his otherwise criminal conduct, it is nevertheless a defense of a unique and specific nature —the defense of mental disease or defect does not have the potential for eliminating a needless or unfounded prosecution'.

It is the court' s opinion that the Legislature did not intend to extend the presumption of innocence' to a person acquitted as a result of mental disease or defect. Such a person actually committed acts which are crimes and are deserving of punishment. Such persons are not set free to roam in society, but are kept in custody until they are no longer dangerous' to themselves or to the public. The charges against such persons are not unfounded', frivolous, or unproven.

The court holds that insanity acquittees are not statutorily entitled to have their records sealed. They are not persons whose criminal actions have been terminated favorably' under CPL 160.50" (Matter of Anonymous, 174 Misc 2d 333, 337-338 [Sup Ct, Kings County 1997] [internal citations and quotation marks omitted]).

Similarly, in Matter of John Doe (191 Misc 2d 382 [Crim Ct, Bronx County 2002]), the defendant's felony proceeding was terminated when he was found incapacitated due to a mental defect. The court found that in the context of sealing a defendant's criminal record, like an acquittal by reason of mental disease, a pretrial finding that a defendant is incapacitated due to mental disease is not a favorable termination. "A defendant found incapacitated due to mental disease, like a defendant found not guilty by reason of mental disease is not at liberty to leave the courtroom, but is subject to immediate detention . . . . Because the disposition is not favorable within the meaning of CPL §160.50 (3), . . . [a] court is without authority to seal the record" (Matter of John Doe, 191 Misc 2d 382, 384 [Crim Ct, Bronx County 2002]).

Here, it appears that the records relating to the ward's criminal proceeding should not be sealed based upon CPL §160.50 and the ward's plea. Nevertheless, in the event such records are sealed, since this court is not a superior court which can order the unsealing, the guardian ad litem is granted permission to make an application in the criminal court to unseal the records, if necessary. The unsealed criminal records will likewise be subject to an in camera review by this court.

This constitutes the decision and order of the court.

Proceed accordingly.

Dated: March 29, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court [*7]

OCA e-submission: no Judge E-Mail