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THE SEXUAL ASSAULT REFORM ACT (SARA), PROHIIBITING CERTAIN SEX OFFENDERS FROM RESIDING WITHIN 1000 FEET OF A SCHOOL, APPLIES TO SEX OFFENDERS WHO ARE UNDER POSTRELEASE SUPERVISION (PRS); THE DISSENT ARGUED SARA, BY ITS TERMS, APPLIES ONLY TO THOSE ON PAROLE OR CONDITIONALLY RELEASED (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined the residency requirement of the Sexual Assault Reform Act (SARA) is a mandatory condition of postrelease supervision (PRS) for sex offenders subject to SARA. The dissent argued the applicable statutes do not mention postrelease supervision (PRS) and, by their terms, apply only to defendants who are on parole or conditionally released:

In 1998, the legislature enacted the Sentencing Reform Act, amending the Penal Law to largely “abolish parole” for most felony offenses, including serious sexual offenses, and institute determinate terms of imprisonment to be followed by periods of postrelease supervision … . …[T]the legislature added Penal Law § 70.45 (3)—entitled “[c]onditions of post-release supervision”—which provides that the Board of Parole “shall establish and impose conditions of post-release supervision in the same manner and to the same extent as it may establish and impose conditions in accordance with the executive law upon persons who are granted parole or conditional release.” Further, Penal Law § 70.40 was amended to add references to postrelease supervision; namely Penal Law § 70.40 (1) (b) provides that “conditions of release including those governing postrelease supervision, shall be such as may be imposed by the [Parole Board] in accordance with the provisions of the executive law.” … . …

The SARA residency restriction bars offenders convicted of certain sex offenses from residing within 1,000 feet of a school (see Executive Law § 259-c [14] …). Specifically, it provides that, when certain offenders are “released on parole or conditionally released pursuant to subdivision one or two of this section,” the Parole Board “shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds … . …

Penal Law §§ 70.45 (3) and 70.40 (1) (b), when read together with SARA, mandate that the SARA residency restriction be applied equally to offenders released on parole, conditional release, or subject to a period of postrelease supervision. Matter of Alvarez v Annucci, 2022 NY Slip Op 01957 Ct App 3-22-22

Practice Point: The Court of Appeals rejected the argument that the Sexual Assault Reform Act (SARA), which prohibits certain sex offenders from residing within 1000 feet of a school, does not apply to those under postrelease supervision (PRS).

 

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DEFENDANT, AT THE TIME OF THE PLEA, AGREED TO A SENTENCE OF 20 DAYS OF COMMUNITY SERVICE; AT SENTENCING, AFTER DEFENDANT HAD COMPLETED THE COMMUNITY SERVICE, THE PROSECUTOR AND DEFENSE COUNSEL ACKNOWLEDGED THAT THE BARGAINED-FOR SENTENCE WAS A ONE-YEAR CONDITIONAL DISCHARGE; ON APPEAL DEFENDANT ARGUED HE NEVER AGREED TO THE CONDITIONAL DISCHARGE AND HIS GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE MAJORITY HELD THE ISSUE WAS NOT PRESERVED FOR APPEAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DeFiore, over an extensive three-judge dissent, determined defendant’s argument that his plea was invalid because he was not informed that a one-year conditional discharge (CD) would be imposed, was not preserved for appeal. Defendant argued only the community-service sentence was agreed to at the time of the plea and the subsequent imposition of the conditional discharge rendered the plea involuntary:

Defendant challenges the voluntariness of his guilty plea, asserting that the court in its plea colloquy failed to advise him that the 20 days of community service to be imposed would be a condition of a sentence of a one-year conditional discharge. At the outset of the sentencing proceeding, the defense counsel and prosecutor affirmatively acknowledged to the court that the bargained-for sentence to be imposed was a conditional discharge. Prior to imposition of that sentence, defendant who had the practical ability to do so, failed to protest or otherwise seek to withdraw his guilty plea. As a result, defendant’s claim that the court’s imposition of an alleged new sentence rendered his guilty plea involuntary is unpreserved for our review. * * *

From the dissent:

Defendant … pleaded guilty to a reduced charge in exchange for a noncarceral sentence of 20 days of community service, along with a mandatory surcharge and temporary suspension of his driver’s license. When defendant appeared after completing his community service and without further criminal incident, the sentencing should have been in accord with the prosecutor and defendant’s agreement. Instead, the court imposed additional year-long conditions that were not agreed to and never mentioned during the plea colloquy or prior to sentencing. As a consequence, defendant’s plea is invalid … . People v Bush, 2022 NY Slip Op 01956, Ct App 3-22-22

Practice Point: Here defense counsel, at the outset of sentencing, acknowledged that the bargained-for sentence was a one-year conditional discharge. On appeal, the defendant argued that, at the time of the plea, he agreed only to a sentence of 20 days of community service, rendering his guilty plea involuntary. The majority held the issue was not preserved for appeal because defendant was alerted to the conditional-discharge sentence at the time of sentencing and did not move to withdraw his plea. The three-judge dissent agreed with defendant’s argument that his plea was involuntary.

 

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THE INDUSTRIAL CODE PROVISION REQUIRING THAT POWER BUGGIES BE OPERATED BY TRAINED, COMPETENT, DESIGNATED PERSONNEL DOES NOT SET FORTH A SPECIFIC STANDARD OF CONDUCT SUCH THAT IT GIVES RISE TO A NON-DELEGABLE DUTY UNDER LABOR LAW 241(6); PLAINTIFF WAS INJURED WHEN AN UNTRAINED OPERATOR LOST CONTROL OF A POWER BUGGY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive three-judge dissent, reversing the Appellate Division, determined the Industrial Code provision which provides “[n]o person other than a trained and competent operator designated by the employer shall operate a power buggy” was not a concrete specification sufficient to give rise to a non-delegable duty under Labor Law 241(6). Plaintiff was injured when a worker who was not designated or trained to operate a power buggy lost control. A power buggy is a small self-powered vehicle operated by one person and used to move material on construction sites:

… [W]e have repeatedly reaffirmed the rule that to state a claim under section 241 (6), plaintiff must allege that defendant violated an Industrial Code regulation “that sets forth a specific standard of conduct and [is] not simply a recitation of common-law safety principles” … . …

The regulation relied on by plaintiff provides that “[n]o person other than a trained and competent operator designated by the employer shall operate a power buggy” (12 NYCRR 23-9.9 [a]). In assessing whether that regulation is specific enough to support a Labor Law § 241 (6) claim, we examine the text without reference to the underlying facts … . With respect to 12 NYCRR 23-9.9 (a), we agree with the majority and dissent below that the “trained and competent operator” requirement “is general, as it lacks a specific requirement or standard of conduct” … . We disagree, however, with the Appellate Division majority’s conclusion that the additional direction that “trained and competent” individuals must also be “designated” somehow transforms the provision from a general standard of conduct to a “specific, positive command” … . Toussaint v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 01955, Ct App 3-22-22

Practice Point: If an Industrial Code provision does not set forth a specific standard of conduct, it does not give rise to a non-delegable duty under Labor Law 241(6). Here the Industrial Code provision which required that power buggies be operated only by “trained,” “competent,” “designated” personnel was not actionable. Plaintiff was struck by a power buggy when an untrained operator lost control.

 

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“INTERACTIVE FANTASY SPORT” (IFS) IS NOT “GAMBLING;” THE STATUTES AUTHORIZING AND REGULATING IFS ARE NOT, THEREFORE, UNCONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a comprehensive three-judge dissent, determined the 2016 statutes authorizing and regulating “interactive fantasy sport” (IFS) do not violate the New York Constitution’s prohibition of “gambling:”

… IFS contests are not prohibited gambling activities because contestants use significant skill to select their rosters, creating fantasy teams, and therefore have influence over the outcome of the fantasy contests between IFS participants. … [T]he historic prohibition on “gambling” in article I, § 9 does not encompass skill-based competitions in which participants who exercise substantial influence over the outcome of the contest are awarded predetermined fixed prizes by a neutral operator. * * *

… [T]he prohibition on “gambling” in article I, § 9 [of the NYS Constitution] encompasses either the staking of value on a game in which the element of chance predominates over the element of skill or the risking of value through bets or wagers on contests of skill where the pool of wagered value is awarded upon some future event outside the wagerer’s influence or control. However, games in which skill predominates over chance and skill-based competitions for predetermined prizes in which the participants have influence over the outcome do not constitute “gambling.” … .

From the dissent:

Since 1894, New York’s Constitution has prohibited “lotter[ies] . . . poolselling, bookmaking, or any other kind of gambling.” Everyone knows that sports betting is gambling. Betting on how many touchdowns a particular player will score is gambling. … Aggregating several bets involving different players into a point total that is pitted against point totals of other bettors does not transform gambling into something else. White v Cuomo, 2022 NY Slip Op 01954, Ct App 3-22-22

Practice Point: Statutes authorizing “interactive fantasy sport” IFS are not unconstitutional because such skill-based competitions do not constitute “gambling” in which the element of chance, as opposed to skill, predominates.

 

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​ THE TARGETS OF A NO-KNOCK WARRANT ARE OWED A “SPECIAL DUTY” SUCH THAT A MUNICIPALITY MAY BE LIABLE FOR THE NEGLIGENCE OF THE POLICE OFFICERS EXECUTING THE WARRANT (CT APP).

The Court of Appeals, in a comprehensive opinion by Judge Singas, over a two-judge dissent, determined the police owe a “special duty” to those targeted by a no-knock warrant such that liability may be imposed on a municipality for the negligence of the police during execution of the warrant.. Here plaintiff alleged he was shot by a police officer who entered the apartment where he was sleeping.. The certified question from the Second Circuit asked if the “special duty” requirement applies in this situation, or whether it is triggered only when the municipality fails to protect the plaintiff from injury by a third party who is not a municipal employee. The opinion lays out the confusing interplay between the “special duty” requirement and the “governmental-function immunity” affirmative defense, which can defeat a plaintiff’s action even if a “special duty” is deemed to exist. The dissent argued the “special duty” requirement itself is invalid and the “ordinary negligence” standard should apply to governmental actors:

Our precedent dictates that a plaintiff must establish a special duty when suing a municipality in negligence. However, because the underlying premise of the certified question appears to be that a special duty could not be established in a scenario like the one presented, we take this opportunity to clarify that this is not the case: a special duty may be established where the police plan and execute a no-knock search warrant on a targeted residence. Although we have not yet had an occasion to address application of the special duty rule to the execution of no-knock search warrants, that situation fits within the existing parameters of our special duty precedent.

From the dissent:

The majority’s principal error, which infects its entire analysis, is embodied in the following statement: “Consistent with our precedent and the purpose of the special duty rule, we reiterate that plaintiffs must establish that a municipality owed them a special duty when they assert a negligence claim based on actions taken by a municipality acting in a governmental capacity” … . That statement: (1) is not consistent with our precedent, in which we have repeatedly evaluated negligence claims against governmental actors by asking whether an ordinary duty exists; and (2) improperly incorporates the governmental/proprietary distinction from immunity law into negligence law … . Ferreira v City of Binghamton, 2022 NY Slip Op 01953, CtApp 3-22-22

Practice Point: This opinion lays out in detail the confusing interplay between the “special duty” requirement for a negligence suit against a municipality and the “governmental-function immunity” affirmative defense which can defeat a negligence suit even where a special duty is deemed to exist. Here the Court of Appeals determined those targeted by a no-knock warrant are owed a special duty such that a party injured in the warrant-execution may sue the municipality for the negligence of a police officer. The dissent argued the “special duty” requirement is itself invalid and an ordinary negligence standard should apply.

 

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A LOCAL ONLINE NEWS OUTLET SHOULD NOT HAVE BEEN EXCLUDED FROM A FAMILY COURT HEARING REGARDING WHETHER A DEPUTY COUNTY ATTORNEY SHOULD BE DISQUALIFIED FROM A NEGLECT PROCEEDING ON CONFLICT OF INTEREST GROUNDS; THE OUTLET IS ENTITLED TO A TRANSCRIPT OF THE HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined appellant, an online local news outlet, should not have been excluded from an attorney-disqualification hearing and was entitled to a transcript of the hearing. The respondent in a neglect proceeding had moved to disqualify the deputy county attorney on conflict of interest grounds. Appellant’s owner deemed the motion newsworthy because the deputy county attorney had just been elected City-Court Judge. When appellant’s owner attempted to attend the disqualification hearing he was denied entry:

… “[T]he general public may be excluded from any hearing under [Family Court Act] article [10] and only such persons and the representatives of authorized agencies admitted thereto as have an interest in the case” (§ 1043). In making that determination, however, “[a]ny exclusion of courtroom observers must . . . be accomplished in accordance with 22 NYCRR 205.4 (b)” … . That rule provides that “[t]he general public or any person may be excluded from a courtroom [in Family Court] only if the judge presiding in the courtroom determines, on a case-by-case basis based upon supporting evidence, that such exclusion is warranted in that case” … . The rule further provides certain nonexclusive factors that a Family Court judge may consider in exercising his or her discretion, and requires that the judge make findings prior to ordering any exclusion … .

… [T]he court abused its discretion in excluding appellant from the hearing on the underlying disqualification motion. … [T]he court violated 22 NYCRR 205.4 (b) by failing to make findings prior to ordering the exclusion, and … there is no indication … that the court rendered its determination based on … evidence or considered any of the relevant factors in exercising its discretion. Moreover, … the court lacked an adequate basis to exclude appellant from the hearing on the disqualification motion … . * * *

… [T]he release of the transcript is consistent with Family Court Act § 166 and 22 NYCRR 205.5. … [T]he statute provides in relevant part that although “[t]he records of any proceeding in the family court shall not be open to indiscriminate public inspection[,] . . . the court in its discretion in any case may permit the inspection of any papers or records” … . The statute thus “does not render Family Court records confidential, but merely provides that they are not open to indiscriminate public inspection” … . The statute makes clear that Family Court “has the discretionary statutory authority to permit the inspection of any record by anyone at any time … .Matter of Rajea T. (Niasia J.), 2022 NY Slip Op 01940, Fourth Dept 3-18-22

Practice Point: Although the general public can be excluded from Family Court Article 10 proceedings, the judge exercising the discretion to exclude an observer must make certain findings in accordance with 22 NYCRR 205-4 (b). Family Court here made no findings and abused its discretion by excluding the news outlet. The court proceeding concerned whether the county attorney handling the neglect case should be disqualified on conflict of interest grounds, and did not concern the underlying allegations of neglect. The news outlet is entitled to a transcript of the hearing.

 

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DEFENDANTS’ OWN SUBMISSIONS DEMONSTRATED (1) PLAINTIFF OWNED THE PROPERTY LEFT IN THE HOUSE PURCHASED BY DEFENDANTS, (2) PLAINTIFF HAD REMOVED SOME OF THE PROPERTY, AND (3) PLAINTIFF ASKED FOR MORE TIME TO REMOVE MORE PROPERTY; THOSE FACTS NEGATED DEFENDANTS’ ALLEGATION PLAINTIFF HAD ABANDONDED THE PROPERTY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSING THE CONVERSION CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment dismissing the conversion cause of action should not have been granted. Defendants’ own submissions demonstrated plaintiff’s ownership of the property, his removal of some of the property, and his request for more time to remove the rest. The property was in a house where plaintiff used to live, but which was purchased by the defendants. Defendants disposed of the remaining property, arguing plaintiff had abandoned it. Plaintiff then sued for conversion:

If the property can be deemed abandoned, then plaintiff’s possessory interest was forfeited and defendants’ actions were authorized, i.e., there can be no cause of action for conversion … . “The abandonment of property is the relinquishing of all title, possession or claim to or of it—a virtual intentional throwing away of it. It is not presumed. Proof supporting it must be direct or affirmative or reasonably beget the exclusive inference of the throwing away” … . …

… [D]efendants’ … own submissions establish that plaintiff was the owner of the personal property left on the premises, that he attempted to remove some of the property during the 30-day period, and that he made requests for additional time to retrieve his property…. . Cretaro v Huntington, 2022 NY Slip Op 01935, Fourth Dept 3-18-22

Practice Point: Here defendants purchased a house formerly owned by plaintiff and gave plaintiff 30 days to remove plaintiff’s personal property from the house. Defendants’ disposed of the property, arguing that plaintiff had abandoned it. Defendants’ own submissions demonstrated plaintiff owned the property, removed some of the property and asked for time to remove more. Defendants’ own submissions, therefore, demonstrated plaintiff had not abandoned the property. Defendants’ motion to dismiss plaintiff’s conversion cause of action should not have been granted.

 

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AFTER A VALID TRAFFIC STOP BASED ON THE LICENSE PLATES NOT MATCHING THE VEHICLE, DEFENDANT PRESENTED HIS TEMPORARY REGISTRATION AND EXPLAINED THE PLATES HAD BEEN TRANSFERRED FROM A DIFFERENT VEHICLE; AT THAT POINT THE AUTHORIZATION TO DETAIN DEFENDANT CEASED; THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT). ​

The Fourth Department, reversing defendant possession of a controlled substance conviction and dismissing the indictment, determined the police, after making a valid traffic stop of defendant’s vehicle, did not have the authority to detain him after he presented his temporary registration and explained that the license plates had been transferred from another vehicle:

… [T]he justification for the officer’s initial detention ceased once defendant showed the officer the temporary registration that had been issued for the vehicle and explained that the license plates on the vehicle had recently been transferred from another vehicle … .. We further conclude that the record does not support the court’s determination that the circumstances following the initial stop provided the officer with probable cause to believe that defendant was violating Vehicle and Traffic Law § 507 (2) … . Indeed, the record does not support the court’s finding that, when defendant produced a learner’s permit upon being asked to produce his driver’s license, the officer asked defendant to exit the vehicle due to the lack of a valid driver’s license. Thus, inasmuch as “the initial justification for seizing and detaining defendant . . . was exhausted” at the time of defendant’s removal from the vehicle, the evidence seized during the ensuing search of defendant’s person, as well as the statements that he made to the police thereafter, should have been suppressed … .People v Betsey-Jones, 2022 NY Slip Op 01924, Fourth Dept 3-18-22

Practice Point: Here the police stopped defendant because the license plates did not match the color and make of defendant’s vehicle in the DMV database. Once the the defendant showed the officer his temporary registration and explained the license plates had been transferred from a different vehicle, the justification for the detention of the defendant ceased. Any statements made and evidence seized after that point should have been suppressed.

 

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THERE WAS NO PROOF DEFENDANT EXERCISED DOMINION AND CONTROL OVER THE AREA WHERE THE DRUGS WERE FOUND; DEFENDANT’S MERE PRESENCE IN THE VICINITY OF THE DRUGS DID NOT PROVE HIS POSSESSION OF THE DRUGS (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession of a controlled substance conviction and dismissing the indictment, determined defendant’s constructive possession of the drugs was not demonstrated. There was no proof defendant exercised dominion and control over the area in which the drugs were found, as opposed to merely being present in the vicinity of the drugs:

Where there is no evidence that the defendant actually possessed the controlled substance, the People are required to establish that the defendant “exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized” … . The People may establish constructive possession by circumstantial evidence … , but a defendant’s mere presence in the area in which contraband is discovered is insufficient to establish constructive possession … . People v Mighty, 2022 NY Slip Op 01923, Fourth Dept 3-18-18

Practice Point: If a defendant does not physically possess the drugs, to prove constructive possession, the People must demonstrate the defendant exercised dominion and control over the area where the drugs were found, perhaps by proving defendant resided there, for example.

 

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THE JUDGE’S FAILURE TO PRONOUNCE THE DEFINITE TERM COMPONENT OF DEFENDANT’S SENTENCE REQUIRED VACATION OF THE SENTENCE AND REMITTAL FOR RESENTENCING; THE ISSUE SURVIVES A WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting for resentencing, determined the definite term component of the sentence was not pronounced by the court:

CPL 380.20 provides that a court “must pronounce sentence in every case where a conviction is entered.” That statutory requirement is “unyielding” … . A violation of CPL 380.20 “may be addressed on direct appeal notwithstanding [any] valid waiver of the right to appeal or the defendant’s failure to preserve the issue for appellate review” … . “When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme” … .

Here, although the certificate of conviction states that defendant was sentenced to a split sentence of a definite term of time served in jail and five years of probation, which is consistent with the sentencing promise made during the plea proceeding, the court failed to orally pronounce during the sentencing proceeding the definite term component of defendant’s sentence as required by CPL 380.20 … . People v Adams, 2022 NY Slip Op 01921, Fourth Dept 3-18-22

Practice Point: Every component of a sentence must be “pronounced” by the judge in open court or the sentence will be vacated.

 

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