Skip navigation
× You have 2 more free articles available this month. Subscribe today.

New York Court Allows Garnishment of Military Pay for Crime Victim's Judgment

The New York Supreme Court in Albany County has held that funds in a prisoner's inmate account are not exempt from garnishment to satisfy a judgment under the state's Son-of-Sam law even if those funds are military retirement pay.

Before the Court was a motion to modify a preliminary injunction to satisfy a $5,000,000 judgment obtained against New York prisoner George Wendell, who was convicted and sentenced in 2002 to 15 years for the crime of Course of Sexual Conduct Against a Child in the 1st degree, 1 1/3 to 4 years for sodomy in the third degree, and 1 year for endangering the welfare of a child.

After he was convicted, K.A.S. sued Wendell for the assaults that began when she was 10 years old and continued for three years. Wendell receives funds earned through civilian employment and military retirement pay. He contended those funds were exempt from garnishment.

The Court found that 5 U.S.C. § 8345(j)(1) allows payment that would be made to a civil service member to be paid to another person "to the extent expressly provided for in the terms of ... any order ... in the nature of garnishment for the enforcement of a judgment rendered against such ... member for physically, sexually, or emotionally abusing a child."

Wendell's contention that 38 U.S.C. § 5301 exempted his veteran benefits from garnishment was rejected. The Court found that because the funds were administered by the Defense Finance and Accounting Service rather than the Veteran's Administration, that statute did not apply. "In fact, 5 U.S.C. § 5520a(b) provides that 'pay from an agency to an employee is subject to legal process in the same manner and to the same extent as if the agency were a private person,'" the Court stated.

The Court then turned to Wendell's claimed exemption under N.Y. C.P.C.R. § 5205(e). The Court held the "military retirement pay portion of the inmate account is ... prima facie exempt from garnishment" under § 5205.
However, the Court held that exemption must yield to the provisions of N.Y. Executive Law § 632-a(1)(c), which is the 2001 amendment to the Son-of-Sam law. A legislative memo indicated it was the Legislature's intent that the "funds of a convicted person" include "all funds and property that a convicted person receives from any source." Thus, Wendell's account could be garnished regardless of where the funds came from.

The Court therefore amended its judgment to allow K.M.S. to recover funds from Wendell's inmate account. See: New York State Crime Victims Board v. Wendell, 12 Misc. 3d 801; 815 N.Y.S.2d 438 (N.Y.S.Ct. 2006).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

New York State Crime Victims Board v. Wendell