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THE SORA RISK-LEVEL ASSESSMENT PROCEEDINGS MUST BE CONDUCTED 30 DAYS BEFORE DEFENDANT’S RELEASE FROM CONFINEMENT, REGARDLESS WHETHER THE STATE IS CONSIDERING OR IS IN THE PROCESS OF INSTITUTING CIVIL COMMITMENT PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Curran, over a comprehensive two-judge dissenting opinion by Judge Wilson, determined that the sex offender risk-level assessment proceedings must be held 30 days prior to a defendant’s release from confinement, regardless whether the state is considering instituting, or already has instituted, proceedings to civilly commit the defendant pursuant to the Sex Offender Management and Treatment Act (SORA):

The Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.) provides that a sex offender “shall” be classified into one of three risk level categories “[30] days prior to discharge, parole or release” (Correction Law § 168-n [2]). The central question presented by these appeals is whether, for purposes of SORA, this deadline is properly measured from the date an offender is released from confinement by the Department of Corrections and Community Supervision (DOCCS), despite pending or contemplated proceedings to civilly commit the offender under the Sex Offender Management and Treatment Act (SOMTA) (Mental Hygiene Law § 10.01 et seq.). We hold that, under a plain reading of SORA, the 30-day deadline for conducting a risk level classification hearing must be measured from an offender’s release by DOCCS upon the completion of a prison sentence, irrespective of whether the state is considering instituting, or has already instituted, proceedings under SOMTA. We further hold that offenders are not denied due process by having a SORA hearing at a time when they may be civilly committed under SOMTA. People v Boone, 2024 NY Slip Op 00928, CtApp 2-22-24

Practice Point: SORA risk-level-assessment proceedings are to be held 30 days prior to defendant’s release from confinement and cannot be delayed because the state is considering or has instituted proceedings for civil commitment.

 

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PETITIONERS’ MINOR CHILD’S NAME CHANGE AND SEX-DESIGNATION CHANGE COURT RECORDS SHOULD HAVE BEEN PERMANENTLY SEALED PURSUANT TO THE CIVIL RIGHTS LAW (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Garry, reversing Supreme Court, determined the records of petitioners’ minor child’s name change and sex-designation change should be permanently sealed pursuant to the Civil Rights Law:

Endeavoring to remove barriers, expand protections and simplify the subject process for transgender and nonbinary New Yorkers … , the Gender Recognition Act expressly authorizes individuals to simultaneously petition for a change in sex designation and change of name (see Civil Rights Law § 67 [3]). Notwithstanding the different sealing standards articulated within the subject articles, both provisions expressly recognize an applicant’s transgender status as a ground for sealing the records … . The provisions promote the sealing of name change applications by transgender applicants — on the court’s own initiative, even where such relief is not requested.

… [T]his is for good reason. Despite some progress in our recent past, it remains sadly true, as evidenced by nearly every memorandum in support of the Act, and amply illustrated by the amici in this case, that risk to one’s safety is always present upon public disclosure of one’s status as transgender or otherwise gender nonconforming … . The Legislature recognized that disclosure of such status subjects individuals to the risk of “hate crimes, public ridicule, and random acts of discrimination” … . Courts have also observed this unfortunate reality … . There is no doubt that violence and discrimination against transgender and nonbinary individuals continue to permeate our society at alarming rates … . Matter of Cody VV. (Brandi VV.), 2024 NY Slip Op 00961, Third Dept 2-22-24

Practice Point: Court records reflecting a sex-designation change and a name change should, in most cases, be permanently sealed pursuant to the Civil Rights Law.

 

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ALTHOUGH DEFENDANT WAS CHARGED WITH BURGLARY AS A SEXUALLY MOTIVATED FELONY, WHICH REQUIRES PROOF THE CRIME WAS MOTIVATED BY SEXUAL GRATIFICATION, THE PEOPLE WERE ENTITLED TO A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF BURGLARY SECOND, WHICH NEED NOT BE MOTIVATED BY SEXUAL GRATIFICATION (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the People were entitled to a jury instruction on the lesser included offense (burglary second degree) where the indictment charged burglary second degree as a sexually motivated offense. Defense counsel objected arguing defendant was not given notice of the need to defend against a burglary charge which did not include the “sexual gratification” element. The Appellate Division agreed with defense counsel’s argument, but the Court of Appeals rejected it, noting that a burglary could be motivated by “sexual harassment” but not by “sexual gratification:”

Defendant confronted, assaulted, and groped several women outside of a New York University dormitory, including grabbing a student by the throat and sexually assaulting her. The students managed to run from defendant and into their dormitory. Shortly thereafter, defendant entered the dormitory and had an altercation with the building’s security guard who tried to block his way, but defendant pushed through the turnstiles that separated the dormitory’s public lobby from the elevator bank that led to the private residences. The security guard was able to return defendant to the lobby, where defendant continued to harass students until police arrived and arrested him. * * *

… [C]harging burglary as a sexually motivated felony does not … limit the People to proving that a defendant intended to commit what is traditionally considered a “sex crime” when he or she entered the dwelling. … [T]he People must prove that, regardless of the crime the defendant intended to commit inside the dwelling, the burglary was motivated in substantial part by personal sexual gratification. For example, the People may charge a sexually motivated burglary based on a theory that the defendant intended to commit larceny once inside of a dwelling, but still maintain the motivation for the burglary was sexual gratification.

…[T]he inverse is also possible: the People may argue that the intended crime was obviously sexual in nature, but the jury may find that, although the defendant entered or remained in the dwelling intending to commit that crime, the motivation was something other than sexual gratification. In that situation … the proof may be insufficient to convict defendant of the sexually motivated felony but sufficient as to the lesser included offense of burglary in the second degree. People v Seignious, 2024 NY Slip Op 00927, CtApp 2-22-24

Practice Point: Although it may be possible for defense counsel to ask for a more limited jury instruction, here the People, who had charged defendant with burglary second degree as a sexually motivated felony (with a sexual-gratification element), were entitled to a jury instruction on the the lesser included offense of burglary second degree (with no sexual-gratification element).

 

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EVEN WHERE IT IS POSSIBLE DEFENDANT LACKS THE CAPACITY TO UNDERSTAND THE SORA RISK-LEVEL PROCEEDINGS, THE RISK-LEVEL ASSESSMENT CAN BE MADE WITHOUT AN INDEPENDANT ASSESSMENT OF DEFENDANT’S MENTAL CAPACITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannaturo, over a two-judge dissenting opinion by Judge Rivera, and a dissent by Judge Halligan, determined the SORA risk-level proceedings can proceed without an assessment of the defendant’s mental health, even where, as here, there is a possibility defendant make lack the capacity to fully comprehend the risk-level proceedings:

The Sex Offender Registration Act (SORA) requires that every person convicted of a sex offense be given a risk-level classification corresponding to their assessed likelihood of recidivism and potential danger to the community. This risk level, in turn, determines the scope of information available to the public concerning the offender. To protect against erroneous classification, judicial determination of an offender’s risk level can occur only after the offender has been provided notice, counsel, disclosure of relevant information, and an opportunity to object and present evidence at a hearing, at which the People must prove the appropriateness of the classification by clear and convincing evidence. An offender’s risk level is also subject to re-evaluation on an annual basis.

The primary question on this appeal is whether due process precludes a court from determining a sex offender’s risk level when there is a possibility that the offender—although represented by counsel and provided the other protections listed above—may lack capacity to fully comprehend risk-level assessment proceedings. We hold that the many safeguards already provided under SORA minimize the risk of inaccurate risk-level classification and adequately balance the competing private and State interests in these civil proceedings. People v Watts, 2024 NY Slip Op 00926, CtApp 2-22-24

Practice Point: The safeguards in place for SORA-risk-level-assessment proceedings are sufficient to protect the rights of a defendant who may lack the capacity to comprehend the proceedings. There is no need for an independent assessment of defendant’s mental capacity before making the risk-level assessment.

 

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UNDER THE UNIQUE FACTS OF THIS MED MAL TRIAL, DEFENDANTS DID NOT ATTEMPT TO SHIFT LIABILITY TO PHYSICIANS WHO HAD BEEN AWARDED SUMMARY JUDGMENT PRIOR TO TRIAL (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Warhit, determined defendant doctor and hospital in this med mal case did not attempt at trial to shift liability to the physician-defendants who had been awarded summary judgment before trial. The opinion is fact-specific and therefore will not be summarized here. The issue is discussed in detail and relevant authority is analyzed in some depth:

The principal question presented on this appeal is whether the defendants improperly attempted at trial to shift liability to certain physician-defendants who had been awarded summary judgment prior to trial. We answer this question in the negative, and find that the Supreme Court providently exercised its discretion in denying the application of the plaintiff … , in effect, for a new trial on this ground. We further conclude that the verdict was not contrary to the weight of the evidence. Angieri v Musso, 2024 NY Slip Op 00887, Second Dept 2-21-24

Practice Point: Under the specific facts brought out at trial in this med mal case, the plaintiff did not attempt to shift liability to doctors who had been awarded summary judgment prior to trial. The issue and the relevant authority are discussed in some detail.

 

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RIDING A BICYCLE ON A PUBLIC PATH USED BY BOTH BICYCLISTS AND PEDESTRIANS IS NOT A RECREATIONAL ACTIVITY WHICH TRIGGERS THE ASSUMPTION OF THE RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing the Court of Claims in this bicycle-fall case, determined the assumption of the risk doctrine did not apply. Plaintiff was riding on public path which was not a designated venue for bicycling when he hit an area of broken asphalt:

… [T]he Court of Claims erred in determining that the path where the claimant’s accident occurred was a designated venue used specifically for bicycling. When the injury occurred, the claimant was engaged in a recreational bicycle ride on a paved, public surface. The claimant was not participating in an organized group event or sponsored ride. The claimant testified at trial that he could both bike and walk the path. That, in addition to the presence of pedestrians who precipitated the accident, demonstrated that the path was for public use, and not a designated venue for bicycling. Therefore, the claimant, by participating in recreational bicycling, cannot be said to have assumed the risk of being injured as a result of an alleged defective condition on the paved path, and therefore, the doctrine of primary assumption of risk is inapplicable to the claimant’s activity … . Alfieri v State of New York, 2024 NY Slip Op 00886, Second Dept 2-21-24

Practice Point: Riding a bicycle on a public path used by pedestrians and bicyclists is not a recreational activity which triggers the assumption of the risk doctrine.

 

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PETITIONER’S FOIL REQUEST FOR DOCUMENTS AND EVIDENCE RELATING TO HIS MURDER CONVICTION SHOULD NOT HAVE BEEN DENIED ON THE GROUND RESPONDING TO THE REQUEST WOULD INTERFERE WITH PETITIONER’S HABEAS CORPUS PROCEEDINGS IN FEDERAL COURT; THE FEDERAL COURT HAD ISSUED A STAY-IN-ABEYANCE ORDER TO ALLOW PETITIONER TO EXHAUST HIS STATE REMEDIES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wan, addressing a matter of first impression, determined petitioner’s FOIL request for documents and evidence related to his murder prosecution should not have been denied on the ground that granting the request would interfere with petitioner’s pending habeas corpus proceedings in federal court. The federal court issued a stay-and-abeyance order in the habeas corpus action to allow petitioner to exhaust his state remedies. Because the stay-and-abeyance order is in effect, the Second Department held that responding to the FOIL request would not interfere with the habeas corpus proceedings and the petition to compel production of the requested records should have been granted:

On July 12, 2020, the petitioner made a request to the Kings County District Attorney (hereinafter the District Attorney), pursuant to the Freedom of Information Law …, for “any and all material” related to the matter of People v Sarkodie, Indictment No. 2544/13, “including, but not limited to, any and all recordings, whether video or audio, DD-5’s, medical reports, witness statements, police memo books, crime scene investigative reports, evidence vouchers, and ballistics reports.” … On December 13, 2020, the petitioner’s counsel filed a second habeas corpus petition in the EDNY, which was consolidated with the petitioner’s pro se habeas petition In the federal habeas proceeding, the petitioner alleged both exhausted and unexhausted state law claims.

By order dated December 23, 2020 (hereinafter the stay-and-abeyance order), the EDNY acknowledged that the federal habeas proceeding “contains unexhausted claims that are not plainly meritless.” Accordingly, the EDNY “f[ound] a stay to be appropriate and h[eld] the Petition [*2]in abeyance” to allow the petitioner to “exhaust his unexhausted claims and perfect the petition … .  * * *

… [T]he District Attorney failed to establish that the records sought were exempt from disclosure pursuant to Public Officers Law § 87(2)(e)(i), since the District Attorney failed to establish that disclosure would interfere with the pending federal habeas proceeding … . Matter of Sarkodie v Kings County Dist. Attorney, 2024 NY Slip Op 00908, Second Dept 2-21-24

Practice Point: A FOIL request for documents and evidence related to defendant’s murder conviction should not have been denied on the ground that responding to the request would interfere with petitioner’s habeas corpus proceedings in federal court  The federal court had issued a stay-and-abeyance order to allow petitioner to exhaust his state remedies. Therefore, the petition to compel production of the sought documents and evidence should have been granted.

 

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THERE ARE QUESTIONS OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE; THE PURSUED CAR STRUCK PLAINTIFF’S CAR; THE ACTION AGAINST THE OFFICER AND THE TOWN SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action against a town police officer (Cunningham) and the town alleging the officer acted in reckless disregard for the safety of others during a high speed chase should not have been dismissed. The car which was pursued by Cunningham struck plaintiff’s (Kolvenbach’s) car:

… [T]he Town defendants failed to eliminate all triable issues of fact as to whether Cunningham acted with reckless disregard for the safety of others and whether such conduct was a proximate cause of Kolvenbach’s injuries … . In support of the Town defendants’ motion, they submitted, among other things, transcripts of the deposition testimony of Cunningham and other witnesses who testified that, on the day at issue, Cunningham pursued Williams at high speeds on damp roads through a main thoroughfare, and that Williams’ vehicle narrowly avoided colliding with other vehicles at earlier points during the pursuit. Thus, contrary to the determination of the Supreme Court, there are triable issues of fact as to whether Cunningham acted in reckless disregard of the safety of others in continuing the pursuit … . There also remain triable issues of fact as to whether Cunningham activated the siren on his police vehicle … and whether he violated police protocols by failing to update his supervisors on the progress of the pursuit via his police radio … . Kolvenbach v Cunningham, 2024 NY Slip Op 00900, Second Dept 2-21-24

Practice Point: This case demonstrates what may constitute “reckless disregard for the safety of others” by a police officer during a high-speed chase which may result in municipal liability for injuries caused by the pursued vehicle.

 

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THE COUNTERCLAIM FOR LOST PROFITS DID NOT DEMONSTRATE “LOST PROFITS” AS CONSEQUENTIAL DAMAGES WAS CONTEMPLATED BY THE PARTIES AT THE TIME THE CONTRACT FOR THE SALE OF GOODS WAS ENTERED; THE MOTION TO DISMISS THE COUNTERCLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the defendant’s counterclaim for lost profits should not have been converted to a summary judgment motion and the counterclaim must be dismissed because defendant did not demonstrate consequential damages for lost profits was contemplated by the parties when the contract for the sale of goods was entered. The contract was for the sale of military ordnance (target practice rounds) for the Mexican Navy. In its counterclaim, the defendant alleged the goods were not timely delivered and were not accepted by the Mexican Navy:

Lost profits are a form of consequential damages that a buyer, such as the defendant, may recover if “the seller at the time of contracting had reason to know [of them] and which could not reasonably [have been] prevented by cover or otherwise” (UCC 2-715[2][a] …). “To determine whether consequential damages were reasonably contemplated by the parties, ‘the nature, purpose and particular circumstances of the contract known by the parties should be considered, as well as what liability the defendant fairly may be supposed to have assumed consciously, or to have warranted the plaintiff reasonably to suppose that it assumed, when the contract was made'” … . In order to recover consequential damages, a pleading party is required to allege that the damages were foreseeable and within the contemplation of the parties at the time the contract was made … . “[W]here the damages reflect a loss of profits on collateral business arrangements, they are only recoverable when (1) it is demonstrated with certainty that the damages have been caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) it is established that the damages were fairly within the contemplation of the parties” … .

Here, the defendant’s allegations, even as supplemented by an affidavit from its president, failed to sufficiently allege that consequential damages as lost future profits resulting from the cancellation of the defendant’s contract with the Mexican Navy due to the plaintiff’s breach of contract were within the plaintiff’s contemplation at the time of entering into the contract for the sale of goods (see UCC 2-715[2][a] …). Island Ordnance Sys., LLC v Amerimex, Inc., 2024 NY Slip Op 00897, Second Dept 2-21-24

Practice Point: With respect to a contract for the sale of goods controlled by the UCC, a claim for lost profits must specifically allege “lost profits” as an element of consequential damages was contemplated by the parties at the time the contract was entered, not the case here.

 

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THE NYC LOCAL LAW ALLOWING NON-CITIZENS TO VOTE IN MUNICIPAL ELECTIONS IS INVALID (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Wooten, over a comprehensive partial concurrence and partial dissent, determined that a NYC Local Law which allowed non-citizens to vote in NYC municipal elections is invalid. The opinion addressed in detail the standing of the different categories of plaintiffs and the validity of the Local Law under the NYS Constitution, the Election Law, and the Municipal Home Rule Law:

This case concerns the validity of Local Law No. 11 (2022) of City of New York, which created a new class of voters eligible to vote in municipal elections consisting of individuals who are not United States citizens and who meet certain enumerated criteria. We determine that this local law was enacted in violation of the New York State Constitution and Municipal Home Rule Law, and thus, must be declared null and void. …

The local law created a new class of voters called “municipal voters” who would be entitled to vote in municipal elections for the offices of mayor, public advocate, comptroller, borough president, and council member. The law defines a “municipal voter” as “a person who is not a United States citizen on the date of the election on which he or she is voting,” and who meets the following criteria: (1) “is either a lawful permanent resident or authorized to work in the United States”; (2) “is a resident of New York [C]ity and will have been such a resident for 30 consecutive days or longer by the date of such election”; and (3) “meets all qualifications for registering or pre-registering to vote under the election law, except for possessing United States citizenship, and who has registered or pre-registered to vote with the board of elections in the city of New York under this chapter.” Fossella v Adams, 2024 NY Slip Op 00891, Second Dept 2-21-24

Practice Point: A NYC Local Law allowing non-US citizens to vote in NYC municipal elections is null and void.

 

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