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TRADE SECRET EXEMPTION DOES NOT REQUIRE PROOF DISCLOSURE WOULD RESULT IN COMPETITIVE INJURY.

The Third Department, in a full-fledged opinion by Justice Rose, determined the exemption from disclosure under the Freedom of Information Law (FOIL) for trade secrets did not require a showing that disclosure of the trade secrets would result in substantial competitive injury. Rather, the statute, Public Officers Law 87 (2) (d), provides two distinct exemptions from disclosure: one for bona fide trade secrets and one for documents which, if disclosed, would cause substantial injury to the competitive position of the owner of the documents. Supreme Court’s finding that the exemption for trade secrets did not require proof of injury to competitive position was upheld. There are strict criteria in place for determining whether information constitutes a bona fide trade secret. Applying those criteria, Supreme Court properly determined that several documents provided by petitioner (Verizon) to the Department of Public Service were exempt from FOIL disclosure as bona fide trade secrets:

 

As pertinent here, Public Officers Law § 87 (2) (d) protects from FOIL disclosure “all records” that “are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise.” Respondents argue that this language unambiguously indicates that the Legislature intended to create a single FOIL exemption for all types of confidential commercial information imparted to an agency — including trade secrets — and to subject all such information to the same showing of substantial competitive injury. * * *

Our courts have long recognized “[t]he importance of trade secret protection and the resultant public benefit” … , and have developed a fact-intensive inquiry to determine whether specific commercial information is a bona fide trade secret worthy of such protection. First, it must be established that the information in question is a “‘formula, pattern, device or compilation of information which is used in one’s business, and which gives [one] an opportunity to obtain an advantage over competitors who do not know or use it'” … . Second, if the information fits this general definition, then an additional factual determination must be made

“concerning whether the alleged trade secret is truly secret by considering: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others” … .

Inasmuch as an entity seeking to establish the existence of a bona fide trade secret must make a sufficient showing with respect to each of these factors, we agree with Supreme Court that it is wholly unnecessary and overly burdensome to require the entity to then make a separate showing that FOIL disclosure of the trade secret would cause substantial injury to its competitive position.  Matter of Verizon N.Y., Inc. v New York State Pub. Serv. Commn.2016 NY Slip Op 00239, 3rd Dept 1-14-16

 

HUMAN RIGHTS LAW (REFUSAL TO ALLOW SAME-SEX MARRIAGE ON PETITIONER’S PROPERTY CONSTITUTED AN UNLAWFUL DISCRIMINATORY PRACTICE)/CONSTITUTIONAL LAW (REFUSAL TO ALLOW SAME-SEX MARRIAGE ON PETITIONERS’ PROPERTY DID NOT VIOLATE PETITIONERS’ RIGHTS TO FREE EXERCISE OF RELIGION, FREE SPEECH OR EXPRESSIVE ASSOCIATION)/SAME-SEX MARRIAGE (REFUSAL TO ALLOW VIOLATED HUMAN RIGHTS LAW)/PLACE OF PUBLIC ACCOMMODATION (DEFINED FOR PURPOSES OF UNLAWFUL DISCRIMINATION UNDER THE HUMAN RIGHTS LAW)

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WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, COUNTY COURT’S ERROR IN ALLOWING EVIDENCE AT TRIAL WHICH THE COURT HAD PREVIOUSLY PRECLUDED REQUIRED REVERSAL AND A NEW TRIAL.

The Third Department determined it was reversible error to allow a police officer’s testimony identifying defendant as a person depicted in surveillance video from a store about an hour before the robbery of which defendant was convicted. Defendant claimed he was shopping in the store at the time of the robbery. The evidence of defendant’s participation in the robbery was not overwhelming. The trial judge had ruled the video could be introduced in evidence but no testimony identifying the defendant as a person depicted in the video could be offered. At trial, however, over objection, Cornell, a police officer, was permitted to identify the defendant in the video:

 

… [E]arlier in the proceedings County Court had ruled that, to the extent that the People were going to offer such surveillance footage into evidence, they were precluded from offering testimony identifying defendant in such footage. Cornell then testified on direct examination that he obtained the video surveillance footage from the store where defendant had claimed to have been shopping at the time of the robbery and described a group of five people that entered at approximately 6:20 p.m. and left at approximately 6:45 p.m., approximately one hour before the robbery. Upon the People’s question, “And the group being [defendant], three women and a toddler,” Cornell answered, “That’s correct.” Defendant objected to the question and the answer, which was overruled by County Court. Inasmuch as this testimony violated County Court’s prior ruling because it identified defendant as being the individual in the video who was accompanied by three women and a toddler, it should have been precluded.

Based upon the record before us, County Court’s evidentiary error in permitting Cornell’s identification testimony of defendant in the surveillance video cannot be deemed harmless. Specifically, under the particular factual circumstances of this case, the evidence of defendant’s guilt, although legally sufficient to support the jury’s verdict, was not overwhelming given the lack of direct evidence linking defendant to the crime and the conflicting witness testimony regarding defendant’s presence at the crime scene … . People v Myrick, 2016 NY Slip Op 00217, 3rd Dept 1-14-16

 

CRIMINAL LAW (WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, ALLOWING EVIDENCE AT TRIAL WHICH HAD BEEN PREVIOUSLY PRECLUDED WAS REVERSIBLE ERROR)/EVIDENCE (WHERE THE EVIDENCE OF GUILT WAS NOT OVERWHELMING, ALLOWING EVIDENCE AT TRIAL WHICH HAD BEEN PREVIOUSLY PRECLUDED WAS REVERSIBLE ERROR)

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SHAREHOLDERS’ DERIVATIVE ACTION AGAINST MORGAN STANLEY ARISING FROM THE LOSS OF $6.2 BILLION FROM HIGH RISK TRADING DISMISSED; PLAINTIFFS FAILED TO DEMONSTRATE PRE-SUIT DEMAND WOULD BE FUTILE.

The First Department, in this shareholders’ derivative action against Morgan Stanley, determined the plaintiffs did not demonstrate that a pre-suit demand upon the board of directors would have been futile.  Therefore, the action was properly dismissed (without prejudice). The lawsuit involved the so-called “London Whale” debacle where $6.2 billion was lost in high-risk trading despite public representations the group engaged in only low risk hedging. The court explained the relevant criteria for a futility demonstration:

 

Plaintiffs’ claim, based on the Board’s alleged failure to properly exercise its oversight duties, is premised on the theory of liability articulated in In re Caremark Intl. Inc. Derivative Litig. (698 A2d 959…). * * *

In Caremark cases, allegations of demand futility are analyzed under the principles set forth in Rales v Blasband (634 A2d 927, 933-934 [Del 1993]) …). Under Rales, the plaintiff must plead particularized facts raising “a reasonable doubt that, [at] the time the complaint [was] filed, the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand” … . To rebut the presumption of disinterestedness, the plaintiff must plead particularized facts that, if proved, would establish that a majority of the directors face a “substantial likelihood” of personal liability for the wrongdoing alleged in the complaint … . A “mere threat” of liability is insufficient … .

Here, plaintiffs failed to make the requisite showing that the board could not exercise independent business judgment because a majority of directors faced a substantial likelihood of liability for the challenged conduct. At the time plaintiffs filed their complaint, the board consisted of 11 directors. At most, plaintiffs showed that four of them — inside director Dimon and the three members of the Risk Policy Committee — faced a substantial likelihood of liability … . “Because a majority of the directors are independent, demand is not excused”… . Wandel v Dimon, 2016 NY Slip Op 00252, 1st Dept 1-14-16

 

CRIMINAL LAW (SEXUAL ASSAULT REFORM ACT DOES NOT VIOLATE EX POST FACTO CLAUSE)/SEXUAL ASSAULT REFORM ACT [SARA] (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IS NOT PUNITIVE IN EFFECT AND DOES NOT VIOLATE EX POST FACTO CLAUSE)/CONSTITUTIONAL LAW (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IN THE SEXUAL ASSAULT REFORM ACT IS NOT PUNITIVE IN EFFECT AND THEREFORE DOES NOT VIOLATE EX POST FACTO CLAUSE)/EX POST FACTO CLAUSE (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IN THE SEXUAL ASSAULT REFORM ACT IS NOT PUNITIVE IN EFFECT AND THEREFORE DOES NOT VIOLATE EX POST FACTO CLAUSE)

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RENTAL PERMIT REQUIRED BY TOWN CODE WAS A CONDITION PRECEDENT TO THE LEASE; CODE PROVISION CREATED A PRIVATE RIGHT OF ACTION TO SEEK RESCISSION OF THE LEASE AND RETURN OF RENT PAID.

The Second Department determined plaintiffs-lessees were entitled to bring a private action (pursuant to a provision of the town code) to rescind a lease, and were entitled to rescission and return of the paid rent. After paying $216,000 to lease defendant’s residential property for approximately 3 1/2 months, the plaintiffs learned defendant did not have a rental permit required by section 270 of the town code. The code provision was enacted to address overcrowding in properties rented for the summer. The Second Department held the code provision created a private right of action and the rental permit was a condition precedent to any lease. With respect to the private right of action, the court wrote:

 

Where, as here, a statute “does not explicitly provide for a private cause of action, recovery may be had under the statute only if a legislative intent to create such a right of action is fairly implied’ in the statutory provisions and their legislative history” … . This inquiry involves three factors: ” (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme'” … . The third factor is often noted to be the “most important” … . Where, as here, the legislature clearly contemplated administrative enforcement of the statute, ” [t]he question then becomes whether, in addition to administrative enforcement, an implied private right of action would be consistent with the legislative scheme'”… .

The plaintiffs satisfied the first and second factors here. Town Code § 270 is intended to benefit the occupants of rental properties in the Town of Southampton by requiring owners to obtain a valid rental permit as a condition precedent to the collection of rent (see Town Code § 270-13). Moreover, the legislative purpose is promoted by preventing owners from profiting from the rental of properties that are overcrowded, substandard, or otherwise violate State and Town laws.

The third factor, requiring that a private cause of action under a statute be consistent with the legislative scheme, has also been satisfied. As the Supreme Court correctly observed, Town Code § 270 is directed toward protecting the health, safety, and well-being of persons renting homes in the Town of Southampton. In that regard, Town Code § 270-6 requires that prior to the issuance of a rental permit, the enforcement authority must “make an on-site inspection of the proposed rental property” to ensure that the property “complies with the New York State Uniform Fire Prevention and Building Code and the Code of the Town of Southampton” (Town Code § 270-6). Although Town Code § 270 is intended to be enforced by designated Town officials and provides for penalties and fines, “without the threat of recoupment of rent, aside from the possibility of administrative enforcement, there is no incentive for a landlord to obtain a license, which is an overriding concern of the Town” … . Ader v Guzman, 2016 NY Slip Op 00137, 2nd Dept 1-13-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER HOTEL DEFENDANT VICARIOUSLY LIABLE FOR NEGLIGENCE OF SNOWMOBILE TOUR GUIDE UNDER APPARENT AGENCY THEORY)/AGENCY (QUESTION OF FACT WHETHER HOTEL DEFENDANT VICARIOUSLY LIABLE FOR NEGLIGENCE OF SNOWMOBILE TOUR GUIDE UNDER APPARENT AGENCY THEORY)

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HOSPITAL DEFENDANTS ENTITLED TO MEDICAL-PEER-REVIEW AND COMMON-INTEREST QUALIFIED PRIVILEGE RE: COMMENTS MADE IN CONNECTION WITH THE TERMINATION OF PLAINITFF-PHYSICIAN’S HOSPITAL PRIVILEGES.

The Second Department, reversing Supreme Court, determined defendant hospital and administrators were entitled to summary judgment dismissing plaintiff’s defamation complaint. Plaintiff was a physician with privileges at defendant hospital. Based upon complaints about plaintiff’s behavior, the hospital terminated plaintiff’s hospital privileges pursuant to a recommendation of the hospital’s credentials committee. The statements at issue were made before, during and after the administrative proceedings at the hospital. The Second Department determined the defendants were not entitled to absolute privilege for comments made during the meeting of the credentials committee because those proceedings were not judicial or quasi-judicial in nature. However, the defendants were entitled to qualified privilege for medical peer review proceedings pursuant to 42 USC 1111. With respect to comments made both prior to and during the meeting of the credentials committee, the Second Department found that a “qualified privilege of common interest” applied. The Second Department rejected Supreme Court’s finding that plaintiff had raised a question of fact whether the defendants acted with malice (which would have removed the qualified privilege). With respect to comments made after the termination of plaintiff’s hospital privileges, the Second Department found, based upon plaintiff’s public comments, plaintiff was a limited-purpose public figure and there was no showing defendants’ post-termination comments were made with actual malice.  Concerning the two types of qualified privilege which were found applicable, the court explained:

 

The defendants established, prima facie, that they were entitled to a qualified privilege under 42 USC § 11111(a), part of the Health Care Quality Improvement Act, which creates a qualified privilege for information provided in medical peer review proceedings concerning the competence or professional conduct of a physician, “unless such information is false and the person providing it knew that such information was false” (42 USC § 11111[a][2]…)

* * * With respect to [the] causes of action … predicated upon allegedly defamatory statements made both during and prior to the Credentials Committee meeting, the defendants established, prima facie, that they were entitled to a qualified privilege of common interest … , under state statutory law (see Public Health Law §§ 2805-j[2]; 2805-m[3]; Education Law § 6527[3], [5]), and under [the hospital’s] bylaws … . Colantonio v Mercy Med. Ctr., 2016 NY Slip Op 00147, 2nd Dept 1-13-16

 

DEFAMATION (MEDICAL PEER REVIEW AND COMMON INTEREST QUALIFIED PRIVILEGE APPLIED TO COMMENTS MADE IN CONNECTION OF TERMINATION OF PLAINTIFF’S HOSPITAL PRVILEGES)/QUALIFIED PRIVILEGE (DEFAMATION, MEDICAL PEER REVIEW AND COMMON INTEREST QUALIFIED PRIVILEGE APPLIED TO COMMENTS MADE IN CONNECTION OF TERMINATION OF PLAINTIFF’S HOSPITAL PRVILEGES)/MEDICAL PEER REVIEW QUALIFIED PRIVILEGE (DEFAMATION)/COMMON INTEREST QUALIFIED PRIVILEGE (DEFAMATION)

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ALTHOUGH THE ORAL CONTRACT CALLED FOR THE MATURATION OF A LOAN AFTER 15 YEARS, THE STATUTE OF FRAUDS DID NOT APPLY BECAUSE IT WAS POSSIBLE TO PERFORM THE CONTRACT WITHIN A YEAR.

In 1998 plaintiff and defendant allegedly entered an oral agreement for a loan of $71,500 at 9% annual interest. The loan matured on December 31, 2013. When plaintiff sued for payment, the defendant sought to dismiss the complaint, arguing the statute of frauds prohibited the oral agreement because the agreement could not be performed within a year. The Second Department affirmed Supreme Court’s denial of the defendant’s motion, finding that it was possible the agreement could have been performed within a year:

 

Pursuant to the statute of frauds, an agreement not reduced to writing is void if, by its terms, it cannot be performed within one year of its making (see General Obligations Law § 5-701[a][1]…). Only those agreements which, by their terms, “have absolutely no possibility in fact and law of full performance within one year” will fall within the statute of frauds … . “As long as the agreement may be fairly and reasonably interpreted such that it may be performed within a year, the Statute of Frauds will not act as a bar however unexpected, unlikely, or even improbable that such performance will occur during that time frame” … .

Here, contrary to the defendant’s contention, the oral agreement between the parties, by its terms, was capable of being performed within one year of its making. As such, the statute of frauds was inapplicable.  JNG Constr., Ltd. v Roussopoulos, 2016 NY Slip Op 00156, 2nd Dept 1-13-16

 

CONTRACT LAW (STATUTE OF FRAUDS DID NOT RENDER AN ORAL CONTRACT TO PAY OFF A LOAN AFTER 15 YEARS VOID)/STATUTE OF FRAUDS (ORAL CONTRACT TO PAY OFF A LOAN AFTER 15 YEARS WAS NOT VOID, CONTRACT COULD HAVE BEEN PERFORMED WITHIN A YEAR)

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LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT; CRITERIA EXPLAINED.

The Second Department determined plaintiff was entitled to lost profits as damages for the wrongful termination of a subcontract. Plaintiff had completed three of seven work items when the contract was terminated and, pursuant to the contract, would have been paid for the remaining four work items in a lump sum and would have been given additional paid work in the form of change orders. The measure of lost-profit damages for the unfinished work was the contractual lump sum minus plaintiff’s anticipated costs. The measure of lost-profit damages for the change orders were the relevant amounts paid to the subcontractor who replaced plaintiff:

 

“A party may not recover damages for lost profits unless they were within the contemplation of the parties at the time the contract was entered into and are capable of measurement with reasonable certainty. The rule that damages must be within the contemplation of the parties is a rule of foreseeability. The party breaching the contract is liable for those risks foreseen or which should have been foreseen at the time the contract was made” … . For damages to be “reasonably certain, does not require absolute certainty. Damages resulting from the loss of future profits are often an approximation. The law does not require that they be determined with mathematical precision. It requires only that damages be capable of measurement based upon known reliable factors without undue speculation” … . Inspectronic Corp. v Gottlieb Skanska, Inc., 2016 NY Slip Op 00155, 2nd Dept 1-13-16

 

CONTRACT LAW (LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT)/DAMAGES (CONTRACT LAW, LOST PROFITS PROPERLY AWARDED FOR WRONGFUL TERMINATION OF SUBCONTRACT)/LOST PROFITS (PROPERLY AWARDED AS DAMAGES FOR WRONGFUL TERMINATION OF SUBCONTRACT)

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DEFENDANT, WHICH OPERATED A STUDY-ABROAD PROGRAM, OWED A DUTY OF CARE TO INJURED STUDENT; BECAUSE DEFENDANT PRESENTED NO AFFIRMATIVE PROOF ON CAUSATION IN SUPPORT OF ITS SUMMARY JUDGMENT MOTION, THE BURDEN OF PROOF ON THAT ISSUE NEVER SHIFTED TO PLAINTIFF.

The First Department, over a two-justice dissent, determined defendant synagogue’s motion for summary judgment was properly denied. Plaintiff was a participant in a study-abroad program run by defendant in Israel. She injured her knee and alleged she was prescribed physical therapy but defendant refused to provide it (delaying and compromising recovery). The First Department held defendant owed a duty of care to plaintiff because it had agreed to provide medical care and was in the best position to protect plaintiff from injury. The court noted that defendant’s attempt to place the burden on plaintiff to demonstrate a causal link between her injury and the failure to provide physical therapy must fail in the context of a defense summary judgment motion. The burden never shifted to plaintiff on that issue because the defendant did not demonstrate, through an expert affidavit, the absence of causation. [Yet another example of the need for a defendant to present affirmative proof on every relevant issue when seeking summary judgment. Without affirmative proof on a necessary issue, the burden never shifts to plaintiff.]:

 

The existence of a duty depends on the circumstances, and the issue is one of law for the court; “the court is to apply a broad range of societal and policy factors” … .

In determining the threshold question of whether a defendant owes a plaintiff a duty of care, courts must balance relevant factors, “including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” … . The parties’ relationship may create a duty where it “places the defendant in the best position to protect against the risk of harm [] and [] the specter of limitless liability is not present” … . Thus, where a defendant exercises a sufficient degree of control over an event, a duty of care to plaintiff may arise … .

Here, the parties’ relationship created a duty to provide plaintiff with the necessary medical care because not only did defendant agree to do so, it was in the “best position to protect against the risk of harm” and “the specter of limitless liability [was] not present” … . The program was not an ordinary college or study-abroad program. Indeed, the second “semester” did not take place in a university environment. Rather, it took place in Yerucham, a small town in the Negev desert, involved volunteering, and was supervised by counselors who did “[p]retty much everything,” including responding to medical issues. Under the circumstances, defendant exercised a sufficient degree of control over the program to create a duty of care to plaintiff … . Katz v United Synagogue of Conservative Judaism, 2016 NY Slip Op 00094, 1st Dept 1-12-16

 

NEGLIGENCE (OPERATOR OF STUDY-ABROAD PROGRAM OWED DUTY OF CARE TO INJURED STUDENT)/DUTY OF CARE (OPERATOR OF STUDY-ABROAD PROGRAM OWED DUTY OF CARE TO INJURED STUDENT)/EVIDENCE (DEFENDANT DID NOT PROVIDE AFFIRMATIVE EVIDENCE OF ABSENCE OF CAUSATION IN ITS SUMMARY JUDGMENT MOTION, BURDEN ON THAT ISSUE NEVER SHIFTED TO PLAINTIFF)/SUMMARY JUDGMENT (DEFENSE MOTION FOR SUMMARY JUDGMENT MUST SUBMIT AFFIRMATIVE PROOF ON ISSUE OF CAUSATION OF INJURY, ABSENT AFFIRMATIVE PROOF BURDEN NEVER SHIFTED TO PLAINTIFF ON THAT ISSUE)

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SUPPRESSION OF JUVENILE’S PROVIDING FALSE NAME AND DATE OF BIRTH TO POLICE OFFICER PROPERLY DENIED; JUVENILE DELINQUENCY ADJUDICATION BASED UPON THE FALSE PEDIGREE INFORMATION PROPER.

The First Department, over an extensive dissent, determined suppression of the juvenile’s giving a false name and date of birth when asked for that information by a police officer was properly denied. The juvenile was warned by the officer that providing false pedigree information would result in a false personation charge (a class B misdemeanor). The juvenile was in fact found to have committed an act which, if committed by an adult, would constitute false personation. The court further determined the sentence of probation was the least restrictive alternative consistent with the juvenile’s needs. The dissent focused on the propriety of the sentence. With respect to the denial of the suppression motion, the court explained:

The court properly denied appellant’s motion to suppress her statement to the police, in which she gave a false name and date of birth, resulting in the false personation charge (Penal Law § 190.23). The police had probable cause to believe appellant was a runaway … . The then 14-year-old appellant, who appeared to be as young as 13, was alone in a PATH station in New Jersey, but she vaguely claimed to live in “upstate” New York. In addition, she had a bruised eye and was wearing provocative clothing, suggesting the possibility of some kind of sexual exploitation. The police were entitled to ask pedigree questions without Miranda warnings, even though an officer warned appellant, as required by the false personation statute, that providing false information would result in an additional charge … . Matter of Christy C., 2016 NY Slip Op 00095, 1st Dept 1-12-16

 

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THE SEXUAL ASSAULT REFORM ACT (SARA), WHICH PROHIBITS CERTAIN SEX OFFENDERS FROM RESIDING OR TRAVELING WITHIN 1000 FEET OF A SCHOOL, DOES NOT IMPOSE PUNISHMENT AND THEREFORE DOES NOT VIOLATE THE EX POST FACTO CLAUSE.

The First Department, in an extensive opinion by Justice Gische, over a dissenting opinion by Justice Kapnick, determined the Sexual Assault Reform Act (SARA), which prohibits certain sex offenders, including appellant, from residing or traveling within 1000 feet of school grounds, did not violate the federal or state constitutions. Appellant claimed there was no place he could reside in Manhattan, and no way to travel to the places he was required to visit in Manhattan, without violating the statute. SARA was enacted after appellant’s conviction. Appellant argued the statute violated the prohibition against Ex Post Facto laws. The court applied the intent-effects analysis. If the intent of the legislation was to impose punishment, the statute would violate the EX Post Facto prohibition and the court’s inquiry would end. But if the intent was to establish civil proceedings, the court must go on to determine whether the effect of the statute is so punitive as to negate its civil nature. After an extensive analysis, the First Department held the statute was not intended to impose punishment, and the additional restrictions the statute imposed upon appellant, who was already otherwise restricted as a parolee, did not rise to the level of punishment:

 

… [W]hile some factors favor petitioner, overall we do not find the clear proof that is necessary to support a determination that SARA is punitive in its effect. The legislature was not “masking punitive provisions behind the veneer of a civil statute” … . Consequently, we conclude that SARA does not violate the Ex Post Facto Clause of the United States Constitution. Matter of Williams v Department of Corr. & Community Supervision, 2016 NY Slip Op 00135, 1st Dept 1-12-16

 

CRIMINAL LAW (SEXUAL ASSAULT REFORM ACT DOES NOT VIOLATE EX POST FACTO CLAUSE)/SEXUAL ASSAULT REFORM ACT [SARA] (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IS NOT PUNITIVE IN EFFECT AND DOES NOT VIOLATE EX POST FACTO CLAUSE)/CONSTITUTIONAL LAW (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IN THE SEXUAL ASSAULT REFORM ACT IS NOT PUNITIVE IN EFFECT AND THEREFORE DOES NOT VIOLATE EX POST FACTO CLAUSE)/EX POST FACTO CLAUSE (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IN THE SEXUAL ASSAULT REFORM ACT IS NOT PUNITIVE IN EFFECT AND THEREFORE DOES NOT VIOLATE EX POST FACTO CLAUSE)

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