ALBANY – The state on Thursday closed a loophole, based on a 2009 murder case in Tonawanda, that previously permitted individuals convicted of murdering a family member to have a say over their burial.
The new provision, one of several in a domestic violence-related measure signed by Gov. Andrew M. Cuomo, seeks to prevent a repeat of the case involving Stephen Shepherd, who was convicted of murdering his wife three years ago in the couple’s home. Over the objections of her family, Shepherd had his wife’s remains buried at a Buddhist site in the Catskills at a spot the couple had frequented.
The new law bans someone who has been charged with murder – or was under an order of protection – from controlling what happens to the remains of the dead person. The new provision allows a court to intervene and waive the new requirements under certain conditions.
The loophole closing was pushed by State Sen. Michael Ranzenhofer, an Amherst Republican, and Assemblyman Robin Schimminger, a Kenmore Democrat, following the Shepherd murder case. Family members of the murdered woman say they had sought to stop Shepherd from deciding the burial plans and said the site he selected was meant as a final act of hostility toward the woman and her family.
Ranzenhofer said previous state law on the matter contained a “disturbing loophole … that only serves to compound a family’s grief after the tragic passing of a loved one.”
The new law takes effect in 30 days.
Elaine O’Toole, a cousin of the slain woman, said Constance Shepherd’s body sat in a morgue for more than a month before her husband released the body to an attorney.
“It was just a fiasco,” O’Toole, a Tonawanda resident, said of the episode.
One area Buddhist leader, Ray Eigen Ball, told The Buffalo News earlier this year before the bill was approved in June that Constance Shepherd was a frequent visitor to the Catskills’ Buddhist monastery site and that her husband followed through on her wishes to be buried there. He said some of her family had wanted a Catholic burial for the woman, a faith, he said, she had abandoned.
O’Toole told The News the family was given no say, although she praised a local Buddhist group for their handling of her ashes that were taken to a mountain monastery downstate.
“Whether she wanted to be buried there or not has nothing to do with the story,” O’Toole added. “What has to do with the story is that her family, not the abuser, would have the final say.
“I hope, as the cliche goes, that no other family has to go through this. … It was really very painful.”
Stephen Shepherd, 59 at the time of the killing, pleaded guilty in 2009 to first-degree manslaughter in the death of his 49-year-old wife in their home, which had been foreclosed upon days earlier. He worked as a bank fraud investigator at HSBC and is in prison on a 21-year sentence.
Lawmakers noted the problem is not rare, citing the case of family members of Aasiya Hassan who were unable to obtain rights to her remains after she was beheaded by her husband, Muzzammil Hassan, in their Orchard Park television studio in 2009, a week after she filed for divorce.
“Persons who exhibit extreme hostility towards a decedent, as evidenced by an order of protection or being the subject of criminal charges arising out of the treatment of such decedent, are not suitable persons to plan final funeral and burial arrangements,” states a legislative bill memo accompanying the new law.
The new legislation closing the Shepherd case loophole also includes stronger punishments for domestic violence cases, including felony-level charges against someone convicted during a previous five-year period of domestic violence against a family member.
Judges will also now be required to consider risk factors in bail decisions for defendants charged with an act of violence against a family member.