TN 3 (02-15)

PR 04910.035 New York

A. PR 15-075 S~ – Eligibility for Widow’s Benefits After Conviction of Second-Degree Manslaughter of Number Holder E~ – New York Law

 

DATE: February 2, 2015

1. SYLLABUS

The following question was presented to the Office of the Regional Chief Counsel:

Can the conviction in New York of S~, (Claimant) for the second-degree manslaughter of her husband E~, the number holder (NH), disqualify her from receiving widow’s benefits on the account of her deceased husband, and if so, whether SSA is permitted to reopen her initial determination of eligibility.

The Regional Counsel ruled that under New York law, Claimant’s conviction for the second-degree manslaughter of the NH is a felonious and intentional homicide, and Claimant is therefore ineligible for widow’s benefits on the NH’s account. SSA is permitted to reopen Claimant’s 2014 eligibility determination at any time.

2. OPINION

QUESTION PRESENTED

You have asked whether the conviction in New York of S~, (Claimant) for the second-degree manslaughter of her husband E~, the number holder (NH), disqualifies her from receiving widow’s benefits on the account of her deceased husband, and if so, whether SSA is permitted to reopen her initial determination of eligibility.

OPINION

Under New York State law, a conviction for second-degree manslaughter constitutes a felony and an intentional homicide within the meaning of SSA’s regulations. Accordingly, Claimant’s conviction for the second-degree manslaughter of the NH makes her ineligible to receive benefits on the NH’s account. SSA is permitted to reopen Claimant’s 2014 initial determination of eligibility at any time.

BACKGROUND 1 Claimant married the NH in June 1970 in Syracuse, New York. The NH died in December 1975 in Syracuse, New York. Claimant was convicted of second-degree manslaughter in New York State for the death of the NH in September 1977, and incarcerated from that date until June 1980. Claimant was on placed on parole until June 1983

Claimant filed an application for Social Security widow’s benefits on the record of the NH on April 24, 2014. Claimant’s application was approved on June 11, 2014. Subsequently, the Victorville, California Field Office discovered Claimant’s prior conviction and suspended her widow’s benefits.

Claimant’s daughter informed an SSA Claims Representative that Claimant and the NH had been involved in an altercation at the time of the homicide. She stated that her mother did not kill the NH intentionally, but rather as an act of self-defense.

Claimant has not been cooperative with providing further evidence regarding her prior conviction.

ANALYSIS

  1. Claimant is Ineligible for Benefits on the NH’s Account Because She Was Convicted of the Felonious and Intentional Homicide of the NH

    1. SSA Regulations and Policy

      The widow of an individual who died a fully insured wage earner is entitled to widow’s insurance benefits if she is not married, has attained the age of 60, and has filed an application for widow’s insurance benefits. Social Security Act (Act) § 202(e)(1), 42 US.C. § 402(e)(1); 20 C.F.R § 404.335; Program Operations Manual System (POMS) RS 00207.001(A)(1)(b); see Act § 216(c), 42 U.S.C. § 416(c) (defining the term “widow”). Claimant satisfies these requirements for entitlement to widow’s insurance benefits on the NH’s earnings record.

      SSA regulations and policy provide that a claimant may not become entitled to or continue to receive any survivor’s benefits or payments on the earnings record of any person if he or she was convicted of a felony or an act in the nature of a felony of intentionally causing that person’s death. 20 C.F.R. § 404.305(b). “An adult convicted of the felonious and intentional homicide of another person cannot be entitled to monthly benefits . . . on the earnings record of that person.” PMS GN 00304.060(A)(1). Thus, for purposes of satisfying 20 C.F.R. § 404.305(b), Claimant must have been convicted of a felony and an intentional homicide in order to be deemed ineligible to receive widow’s benefits on the NH’s account.

      The classification of a conviction for manslaughter as an “intentional homicide” under 20 C.F.R. § 404.305(b) depends on the laws of the state in which the claimant was convicted. POMS GN 00304.065. When determining whether the manslaughter conviction constitutes an “intentional homicide,” under the regulations, the Agency must first consider whether the conviction was for involuntary or voluntary manslaughter. Id. In the event that state law does not distinguish between voluntary and involuntary manslaughter, the Agency must not presume intent, but rather must develop the facts relative to the slaying to determine if intent was present. Id.

      SSA defines “intent” to mean:

      A wish or expectancy that an act will have a certain result (regardless of the actual likelihood of such result).

      The presence of will in the commission of a criminal act where the individual is fully aware of the nature and probable consequences of the act that he or she plans to commit. This applies whether the individual desires that such consequences occur or is indifferent as to their occurrence.

      Seldom intent is established by direct proof, but must be inferred from facts.

      POMS GN 00304.060(B)(1). SSA excludes homicides where the killing is the result of self-defense from its definition of intentional homicide. POMS GN 00304.065.

    2. New York State Law

      New York State law classifies manslaughter in the second degree as a class C felony. N.Y. Penal Law § 125.15 (McKinney 1965). Thus, second degree manslaughter in New York constitutes a “felony” for purposes of satisfying 20 C.F.R. § 404.305(b) and POMS GN 00304.060(A)(1).

      As noted above, whether manslaughter in the second degree is classified as an “intentional homicide” under the regulations depends on the laws of the state in which the claimant was convicted. POMS GN 00304.065. Under New York State law, “[a] person is guilty of manslaughter in the second degree when he recklessly causes the death of another person. . . .” N.Y. Penal Law § 125.15. 2 A person acts recklessly under New York law when “he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” N.Y. Penal Law § 15.05(3) (McKinney 1965). 3 New York courts have held that a person is “chargeable with recklessness when he is aware of a designated risk and consciously disregards it.” People v. Licitra, 393 N.E.2d 456, 458-59 (N.Y. 1979) (holding that a defendant’s conviction for manslaughter in the second degree was proper because a jury could have properly concluded that defendant acted recklessly in creating and disregarding a substantial and unjustifiable risk) (citing People v. Montanez, 359 N.E.2d 371 (N.Y. 1976) (“if he was aware of the grave risk of death and acted in disregard of it, he acted recklessly … and is guilty of manslaughter in the second degree…”) (additional citations omitted). “[T]o establish manslaughter in the second degree, the prosecution must prove three elements: the creation of a substantial and unjustifiable risk; an awareness and disregard of the risk on the part of defendant; and a resulting death.” Licitra, 393 N.E.2d at 459.

    3. Analysis

      A homicidal act is intentional if the actor “is fully aware of the nature and probable consequences of the act that he or she plans to commit.” POMS GN 00304.060(B)(1). Thus, if a person commits an act which he or she wishes or expects will result in the death of another person, he or she would be considered to have committed an “intentional homicide”, regardless of whether or not the resulting death was actually desired. Id.; See SSR 89-6c (noting that the POMS “expand[s] on the traditional meaning of an intentional state of mind . . . [to] include … ‘an act which [the actor] knows could result in death of the [wage earner] even though the [insured’s] death is not actually desired.’”) (adopting the holding of Davis v. Secretary of Health and Human Services, 867 F.2d 336 (6th Cir. 1989).

      The definition of second-degree manslaughter in New York State comports with the definition of intent found in the POMS. Furthermore, in Davis, the Sixth Circuit held that a claimant’s conviction of second-degree manslaughter in Kentucky satisfied the Agency’s definition of an “intentional homicide” for the purposes of applying the regulation. 867 F.2d at 340. In 1982, the Kentucky penal code defined second-degree manslaughter as “wanton killing.” Kentucky defined “wantonly” as follows: “[a] person acts wantonly . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” Davis, 867 F.2d at 337. With the exception of the use of the word “wanton” instead of “reckless,” Kentucky’s definition of second-degree manslaughter is virtually identical to New York State’s definition of second-degree manslaughter. See N.Y. Penal Law §§ 15.05; 125.15.

      For these reasons, second-degree manslaughter in New York qualifies as an intentional homicide within the meaning of 20 C.F.R. § 404.305(b). See POMS GN 00304.060(B)(1).; SSR 89-6c (citing Davis.).

      SSA excludes homicides where the killing is the result of self-defense from its definition of intentional homicide. POMS GN 00304.065A. Nevertheless, despite the statement of Claimant’s daughter that Claimant’s killing of the NH was an act of self-defense, the evidence does not establish this. Under New York State law, a person who “use[s] physical force upon another person when, and to the extent he reasonably believes such to be necessary to defend [himself] from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person,” is justified in his or her actions. N.Y. Penal Law § 35.15(1) McKinney 1968). 4 “In any prosecution for an offense, justification, as defined [by the Statute] is a defense.” N.Y. Penal Law § 35.00 (McKinney 1965). 5 “The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful.” People v. McManus, 496 N.E.2d 202, 205 (N.Y. 1986) (citations omitted). Thus, if a jury determines that the use of force is justified, then the act cannot be considered criminal and the actor cannot be convicted of the crime. Here, Claimant was convicted of second-degree manslaughter, and thus, there is no evidence that her act was determined to be legally justifiable. 6 Because Claimant’s conviction for second-degree manslaughter constitutes a felonious and intentional homicide under 20 C.F.R. § 404.305(b), she is ineligible to receive widow’s benefits on the NH’s account.

  2. SSA Regulations Permit Reopening Claimant’s Eligibility Determination

    SSA regulations provide that a determination may be reopened within twelve months of the determination for any reason. 20 C.F.R § 404.988(a). Furthermore, a determination may be reopened at any time if that determination “is incorrect because . . . [y]ou were convicted of a crime that affected your right to receive benefits or your entitlement to a period of disability. . . ." 20 C.F.R. § 404.988(c)(11).

    The initial determination regarding this matter was made on June 11, 2014, and thus, may be reopened at this time for any reason. Furthermore, the initial determination that Claimant was eligible for widow’s benefits was incorrect, because she was convicted of a crime that rendered her ineligible to collect benefits on her deceased husband’s account. We therefore conclude that the determination may be reopened at any time pursuant to 20 C.F.R. § 404.988(c)(11).

CONCLUSION

Under New York law, Claimant’s conviction for the second-degree manslaughter of the NH is a felonious and intentional homicide, and Claimant is therefore ineligible for widow’s benefits on the NH’s account. SSA is permitted to reopen Claimant’s 2014 eligibility determination at any time.


Footnotes:

[1]

The Center for Programs Support (CPS) provided this office with a copy of Claimant’s marriage certificate and marriage license, information from the New York Department of Corrections, a State of New York Certificate of Release to Parole Supervision, and a memorandum summarizing the case. Additionally, CPS provided a Report of Contact documenting the Claim Representative’s discussion with Claimant’s daughter concerning the Claimant’s conviction. This opinion is based on the facts as presented.

[2]

N.Y. Penal Law § 125.15 was enacted in 1965 and has not been amended. Thus, this definition of second-degree manslaughter was in effect in 1977, the year of S~’s conviction.

[3]

N.Y. Penal Law § 15.05(3) was enacted in 1965 and has not been amended. This definition of recklessness was therefore in effect in 1977, the year of S~’s conviction.

[4]

This memorandum cites the version of N.Y. Penal Law § 35.15(1) that was in effect in 1977, the year of S~’s conviction.

[5]

N.Y. Penal Law § 35.00 was enacted in 1965 and has not been amended. Thus, this section of the penal code was in effect in 1977, the year of S~’s conviction.

[6]

In Shakari v. Astrue, the Illinois District Court held that Plaintiff was not entitled to widow’s benefits because she had been convicted of voluntary manslaughter in connection with the death of the wage earner. 825 F.Supp.2d. 948 (N.D. Ill. 2011). In Shakiri, Plaintiff brought an action in the district court after she was pardoned by the Governor of Illinois for her crime, and she argued that she was entitled to widow’s benefits because she had been pardoned for the manslaughter of the number holder. Id. at 950-951. The District Court held that Plaintiff remained ineligible for benefits because a general pardon releases an inmate from custody and supervision, but “does not act to erase or negate an offender’s conviction.” Id. at 951. Similarly, in this matter, regardless of Claimant’s daughter’s claims that her mother acted in self-defense, there is no evidence that the homicidal act was deemed justifiable. The fact that Claimant was convicted of second-degree manslaughter is the controlling factor in determining whether she is eligible to receive widow’s benefits.


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PR 04910.035 - New York - 02/27/2015
Batch run: 02/27/2015
Rev:02/27/2015