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Graswald entered a guilty plea to criminally negligent homicide in the death of Vincent Viafore.
John Ferro/Poughkeepsie Journal

Angelika Graswald “doesn’t have any plans to try to fight” for Vincent Viafore’s insurance money in civil court, her lawyer said.

Slayer laws, which vary from state to state, prevent killers from profiting from their crimes. A person is not allowed to profit from “reprehensible conduct” that causes someone’s death, said Marty Rutberg, head of Rutberg Breslow Personal Injury Law in Poughkeepsie.

When Graswald pleaded guilty to criminally negligent homicide in the death of her fiancé, she did not automatically forfeit her claim to his life insurance — though in all likelihood, she wouldn’t ever be granted the right to claim it, legal experts say. 

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But Graswald “doesn’t have any plans to try to fight for the money,” said her defense attorney, Richard Portale. “I’m sure of that.”

Graswald, 37, was facing charges of second-degree murder and second-degree manslaughter in connection to Viafore’s death. She was accused of killing the 46-year-old Poughkeepsie man during a Hudson River kayaking trip the couple took to Bannerman Island on April 19, 2015.

Her long-awaited trial was set to start in mid-August before Orange County Court Judge Robert Freehill.

Instead, she pleaded guilty to criminally negligent homicide on Monday. In exchange for her plea, she got a sentence of 1 1/3 to 4 years in state prison, the maximum allowed. 

Graswald was the primary beneficiary on Viafore’s two life insurance policies and stood to gain $250,000 in the event of his death.

A defendant found liable of intentionally causing another’s death — even in a civil case — is prevented from collecting life insurance under New York’s common law slayer rule. 

A conviction of criminally negligent homicide “does not mean an automatic forfeiture,” said Rutberg, who is not representing any party in proceedings involving Viafore or Graswald. But generally, “the conduct which constitutes criminal negligence is going to be found reprehensible” by a jury or judge.

So Rutberg said he’s “very confident” she wouldn’t get the life insurance money, even if she did decide to seek it — “because of our slayer law, but also because any money Graswald could try to claim would also be claimed by Mr. Viafore’s estate in a civil wrongful death lawsuit.” 

Slayer rule

In New York, the slayer rule is “not necessarily determined by whether the crime was murder or criminally negligent (homicide) or manslaughter — though in some cases it is automatic,” Rutberg said. “Our law is framed in terms of not benefiting from a wrongful act that brings about somebody’s death.” Almost always, “a person in Graswald’s position won’t end up getting the money.”

New York is one of the few states that doesn’t have a codified slayer rule. Instead, it’s a rule of common law, which means decisions are based on previous court decisions instead of legislation.

“When somebody is convicted of a murder, there is no question — they can’t profit from their wrongdoing,” said C. Raymond Radigan, a retired Nassau County Surrogate’s Court judge, who now serves as counsel to the Ruskin Moscou Faltischek law firm. 

But if a defendant is convicted of a lesser charge, such as criminally negligent homicide, “the case law is in doubt,” Radigan said. “It depends on the judge… whether or not they say, ‘this (conviction) is enough, or we have to hold a hearing'” to determine the outcome. Historically, many surrogate court judges have taken the position “that if you cause wrongdoing, you shouldn’t profit.” 

The plea

As part of her plea, Graswald admitted she caused Viafore’s drowning death by removing the plug from his kayak. She also admitted she was aware that the locking clip on one of his paddles was missing, that he was not wearing a life vest or a wet suit and that the river waters were dangerously cold at the time of their kayaking trip.

Prosecutors said those admissions constitute actions that are a “gross deviation from the standard of conduct that a reasonable person would have observed in the situation” and caused Viafore’s death.

Attorneys on both sides agreed that a plea deal was the best move. 

“It’s a fair outcome,” Orange County District Attorney David Hoovler told the Journal. “Am I happy with it? No. But it’s fair… given the evidence.”

For the defense, taking the plea rather than risking trial “was a no-brainer,” Portale said. “We have maintained from the beginning this was not an intentional killing. This resolution supports that. Our job was always to get her home.”

Graswald’s sentencing is set for Nov. 1. Portale said she will be paroled by late December. The two-plus years she’s served, so far, in Orange County Jail will count toward her time in state prison. 

A native of Latvia and a U.S. permanent resident, Graswald may face deportation after her 16 months on parole are up. That decision would be up to a federal judge, prosecutors said.

The plea deal did not include any agreement in regard to Viafore’s insurance money, according to attorneys.

That was “not part of the deal…was never a consideration,” Portale said. But “she doesn’t have any plans to try to fight for the money.”

“The insurance is not part of any issue that is covered in the criminal case,” Hoovler said. “Civilly, that can be contested.”

The case

During a pre-trial hearing in June 2016, state police investigators testified that Graswald admitted to tampering with Viafore’s kayak and paddle. She told them she was happy Viafore died, that she wanted to be free of him and knew she was primary beneficiary on two of his life insurance policies.

The defense said Graswald’s incriminating statements were coerced by police during an 11-hour interview, that removing the kayak plug (which was on top of the vessel) wouldn’t have caused Viafore’s kayak to capsize, that Viafore was not wearing a life-jacket and had a blood alcohol concentration of 0.066. 

With limited physical evidence, the case essentially hinged on Graswald’s alleged confession. During interviews with police, some of which were recorded, some of which were not, Graswald gave conflicting statements about her involvement, which stopped short of a direct confession, Hoovler said. 

Her defense team was going to try to prove she falsely confessed to killing Viafore.

With her guilty plea, Graswald has acknowledged that Viafore’s death was a result of her criminal conduct and not an accident, Hoovler said. The plea also spared Viafore’s loved ones of the uncertainty and emotional trauma of a trial; the deal was entered into “after extensive consultation” with his family. 

Legal causation 

In “perfect weather conditions,” pulling the plug alone would not contribute to Viafore’s kayak capsizing, Hoovler said. But tests showed that “removing the plug, knowing the weather conditions that day… affected the performance of the kayak as it would take on water more quickly, destabilizing it.”

Removing the plug while “knowing the weather conditions (it was windy and the water was cold) that day, knowing they had alcohol, knowing the victim had no life jacket on…starts the causation chain in motion that leads to his death,” Hoovler added. “Every one of those factors had to be known and happen for her to be criminally negligent.”

If she hadn’t pulled the plug, Viafore might be alive today, the district attorney said. Graswald didn’t have to be the sole cause of his death – only “a cause.” 

No one “can answer the question” of whether or not Viafore knew the plug had been removed, the district attorney said. “There were only two people out on the river. He’s not here to tell us.”

Wrongful death lawsuit

An order filed in the Dutchess County Surrogate’s Court in November 2015 blocked life insurance companies from paying any money to Graswald “pending a final determination” of Viafore’s cause of death and whether she was “responsible” for it, according to legal records.

The court order was the result of an application filed by Viafore’s sister, who sought to block Graswald from collecting any of her brother’s life insurance proceeds or other assets. Graswald didn’t oppose Viafore’s sister’s application, which mentioned the likelihood of Viafore’s estate bringing a wrongful death civil lawsuit against her.

Unlike a murder charge, which is a criminal action filed by the state, a wrongful death suit is a civil action brought against a person who has allegedly caused someone’s death negligently or through intentional harm, according to state law. The burden of proof is much higher in a criminal case than in a civil case. A person can be found “not guilty” of a murder charge and still found liable in civil court.

The statute of limitations to file a wrongful death suit in New York — two years from the date of death — can be extended when there are criminal charges pending against the person who could be sued. An estate has a year from the date when the criminal trial ends to file, according to state law.

At this point, “we haven’t discussed that (proceeding with a wrongful death) to be honest,” Kevin Rice, Viafore’s brother-in-law, said on Thursday. But “we have the money tied up if we have to go to civil court.”

Nina Schutzman: nschutzman@poughkeepsiejournal.com, 845-451-4518, Twitter: @pojonschutzman

 

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