Constitutional Law Archives - New York Appellate Digest

Constitutional Law, Criminal Law, Evidence

TESTIMONY SUPPORTING THE ADMISSION OF DNA PROFILES WAS HEARSAY WHICH VIOLATED THE CONFRONTATION CLAUSE (CT APP).

The Court of Appeals, reversing defendant’s conviction, over a concurrence, determined the testimony which formed the basis for the admission in evidence of DNA profiles was hearsay which violated the Confrontation Clause:

In People v John, we held that, when confronted with testimonial DNA evidence at trial, a defendant is entitled to cross-examine “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data” (27 NY3d 294, 315 [2016]). In People v Austin, we reiterated that a testifying analyst who did not participate in the generation of a testimonial DNA profile satisfies the Confrontation Clause’s requirements only if the analyst “used his or her independent analysis on the raw data to arrive at his or her own conclusions” (30 NY3d 98, 105 [2017] … ). The records before us do not establish that the testifying analyst had such a role in either case. Accordingly, because the analyst’s hearsay testimony as to the DNA profiles developed from the post-arrest buccal swabs “easily satisfies the primary purpose test” for determining whether evidence is testimonial … , we conclude that her testimony and the admission of those DNA profiles into evidence, over defendants’ objections, violated defendants’ confrontation rights. People v Tsintzelis, 2020 NY Slip Op 02026, CtApp 3-24-20

March 24, 2020/0 Comments/by Bruce Freeman

Constitutional Law, Criminal Law, Judges, Sex Offender Registration Act (SORA)

JUDGE SHOULD NOT HAVE, SUA SPONTE, ASSESSED POINTS ON A THEORY NOT RAISED BY THE BOARD OF EXAMINERS OF SEX OFFENDERS OR THE PEOPLE; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge should not have, sua sponte, assessed points on a theory not raised by the Board of Examiners of Sex Offenders or the People:

… [D]efendant contends, and the People correctly concede, that County Court violated his right to due process by sua sponte assessing points on a theory not raised by the Board of Examiners of Sex Offenders or the People … . The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment … . Here, no allegations were made either in the risk assessment instrument (RAI) or by the People at the SORA hearing that defendant should be assessed 30 points under risk factor 3, and defendant learned of the assessment of the additional points under that risk factor for the first time when the court issued its decision … . …

The court stated that, if defendant were a presumptive level one risk, an upward departure to level two would be warranted based on certain aggravating factors stemming from the nature of the crimes. Because those factors were not presented as bases for departure in the RAI or by the People at the hearing, defendant was not afforded notice and a meaningful opportunity to respond to them … . People v Wilke, 2020 NY Slip Op 02002, Fourth Dept 3-20-20

March 20, 2020/0 Comments/by Bruce Freeman

Civil Procedure, Constitutional Law, Real Property Tax Law

PLAINTIFF DID NOT SUFFICIENTLY ALLEGE THAT NEW YORK’S PROPERTY TAX SYSTEM DISCRIMINATES AGAINST PROPERTY OWNERS IN “MAJORITY-MINORITY” NEIGHBORHOODS; COMPLAINT SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY (FIRST DEPT).

The First Department, in a comprehensive opinion by Justice Kern, reversing (modifying) Supreme Court, determined the complaint alleging the New York property tax system is unconstitutional should have been dismissed in its entirety for failure to state a cause of action. The opinion is too detailed to fairly summarize here. With respect to the allegations the property tax system discriminates against property owners in “majority-minority” neighborhoods, the court wrote:

… [P]laintiff does not adequately allege a causal connection between the property tax system and any racial disparities in the availability of housing. Plaintiff has failed to allege sufficient concrete facts or produce statistical evidence showing that the application of the property tax system, as opposed to other factors, causes financial barriers that inhibit the ability of minority residents to own homes. Additionally, plaintiff does not allege sufficient concrete facts or produce statistical evidence showing how the current property tax system contributes to higher rates of foreclosure or discourages the production of rental units in majority-minority communities. …

… [P]laintiff has failed to meet its burden “to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection” between the property tax system and the continued segregation of New York City neighborhoods sufficient to “make out a prima facie case of disparate impact” … . …

… [P]laintiff argues that the terms and conditions of all home, condominium and cooperative sales and apartment rentals include the transfer of an illegal tax burden that make purchasing or renting a dwelling more expensive in affected communities. The portion of the FHA [Fair Housing Act] upon which plaintiff relies makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of race, color, religion, sex, familial status, or national origin” … . However, in the context of taxation, defendants are not involved in the terms and conditions of the sale or rental of property … . Tax Equity Now NY LLC v City of New York, 2020 NY Slip Op 01401, First Dept 2-27-20

February 27, 2020/by Bruce Freeman

Constitutional Law, Criminal Law, Evidence

28-YEAR PRE-INDICTMENT DELAY IN THIS MURDER CASE DID NOT VIOLATE DEFENDANT’S RIGHT TO DUE PROCESS; DNA PROFILE STEMMING FROM DEFENDANT’S 2008 ARREST MATCHED BLOOD EVIDENCE FROM THE 1984 MURDER (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, determined the 28 year pre-indictment delay in this murder case did not violate defendant’s due process rights. Defendant was arrested in 2008 and his DNA profile was obtained. He had been a suspect in the 1984 murder and the blood evidence from the murder was linked to the defendant:

… [T]he preindictment delay of more than 28 years was undoubtedly extraordinary, a fact that weighs in favor of the defendant … . However, under the circumstances presented, the People met their burden of demonstrating good cause for the delay … . The record of the Singer hearing supports the hearing court’s determination that the People acted in good faith in deferring commencement of the prosecution until after they were able to match the defendant’s DNA profile with the one found on some of the blood-stained items recovered from the crime scene.

While the defendant correctly points out that DNA testing of the crime scene evidence could have been performed years earlier, there is nothing to suggest that such tests would have yielded any meaningful information, as the defendant’s own DNA profile was not available to investigators for comparative purposes until it was entered into CODIS in March of 2008. Nor are we persuaded by the defendant’s contention that the People could have sought a court order compelling the defendant to produce a DNA sample for analysis before 2008 … . Considering that the outcome of such a proceeding, under the particular facts of this case, would be very difficult to predict … , we are loath to saddle the People with an affirmative duty to embark upon a course that could ultimately prove unsuccessful, and possibly jeopardize an ongoing investigation. People v Innab, 2020 NY Slip Op 01363, Second Dept 2-26-20

February 26, 2020/by Bruce Freeman

Appeals, Constitutional Law, Criminal Law

THE WAIVER OF APPEAL WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY MADE (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was not knowingly, voluntarily and intelligently made. Executing a written waiver does not fix a deficient colloquy:

A defendant should … ” receive an explanation of the nature of the right to appeal, which essentially advises that this right entails the opportunity to argue, before a higher court, any issues pertaining to the defendant’s conviction and sentence and to have that higher court decide whether the conviction or sentence should be set aside based upon any of those issues . . . [and] that appellate counsel will be appointed in the event that he or she were indigent”‘ … . … [T]he Criminal Jury Instructions & Model Colloquies, available online through the New York State Unified Court System’s website, include a model colloquy for the waiver of the right to appeal … . While the use of the model colloquy is not mandatory, its use may nevertheless “substantially reduce the difficulties” … , provided that the trial judges retain and use flexibility to undertake individualized inquiries as appropriate.

Here, the record does not establish that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The County Court’s terse colloquy during the plea allocution failed to sufficiently advise the defendant of the nature of his right to appeal and the consequences of waiving that right … . Although the defendant executed a written appeal waiver form, a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal … . Moreover, the defendant was not informed of the maximum sentence that could be imposed if he failed to comply with the conditions of his plea agreement … . Thus, the purported appeal waiver does not preclude appellate review of the defendant’s contention that the enhanced sentence was excessive. People v Slade, 2020 NY Slip Op 01366, Second Dept 2-26-20

February 26, 2020/by Bruce Freeman

Constitutional Law

THE ARTICLE OF THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW WHICH ALLOWS INTERACTIVE FANTASY SPORTS (IFS) CONTESTS AND EXCLUDES SUCH CONTESTS FROM THE PENAL LAW GAMBLING PROHIBITIONS VIOLATES THE NEW YORK CONSTITUTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Mulvey, determined that Racing, Pari-Mutuel Wagering and Breeding Law Article 14, which states that interactive fantasy sports (IFS) do not constitute gambling and do not violate the Penal Law, violates the New York Constitution:

It is undisputed that IFS contestants pay an entry fee (something of value) in hopes of receiving a prize (also something of value) for performing well in an IFS contest. Therefore, such contests constitute gambling if their outcomes depend to “a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein,” such that they are contests of chance (Penal Law § 225.00 [1]), or if they depend on a “future contingent event not under [the contestants’] control or influence” (Penal Law § 225.00 [2]). * * *

We recognize that the Legislature was sympathetic to and supportive of IFS participants (see e.g. Racing, Pari-Mutuel Wagering and Breeding Law § 1400 [3]). Nevertheless, we have rejected the Legislature’s explicitly stated basis for the removal of IFS from the Penal Law definition of gambling (see Racing, Pari-Mutuel Wagering and Breeding Law § 1400 [1]). Moreover, as part of the same legislation that decriminalized IFS, the Legislature clearly intended that IFS contests be heavily regulated (see Racing, Pari-Mutuel Wagering and Breeding Law §§ 1400 [3]; 1402-1406). Hence, we conclude that the Legislature, if it had envisioned the possibility that courts would invalidate the majority of article 14, would not have wished to preserve the decriminalization of IFS located in Racing, Pari-Mutuel Wagering and Breeding Law § 1400 (2). Thus, we refuse to sever that provision, and invalidate it as well. White v Cuomo, 2020 NY Slip Op 00895, Third Dept 2-6-20

February 6, 2020/by Bruce Freeman

Constitutional Law, Criminal Law

STATUTE CRIMINALIZING THE POSSESSION OF AN UNLICENSED FIREARM DOES NOT VIOLATE THE SECOND AMENDMENT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Peradotto, determined that the statute prohibiting possession of an unlicensed firearm in the home does not violate the Second Amendment:

… [D]efendant contends that New York may not constitutionally impose any criminal sanction whatsoever on the unlicensed possession of a handgun in the home. * * *

… [I]t is beyond dispute that “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention” … . Those concerns include the state’s “substantial and legitimate interest and[,] indeed, . . . grave responsibility, in insuring the safety of the general public from individuals who, by their conduct, have shown” that they should not be entrusted with a dangerous instrument … . …

… [T]the criminal prohibition on the unlicensed possession of a handgun, including in the home, bears a substantial relationship to the state’s interests. “In the context of firearm regulation, the legislature is far better equipped than the judiciary’ to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying [and possessing] firearms and the manner to combat those risks” … . People v Tucker, 2020 NY Slip Op 00739, Fourth Dept 1-31-20

January 31, 2020/by Bruce Freeman

Civil Procedure, Constitutional Law, Criminal Law, Judges

TRIAL JUDGE SHOULD NOT HAVE, SUA SPONTE, DECLARED A MISTRIAL TO ACCOMMODATE A JUROR’S WEEKEND PLANS; WRIT OF PROHIBITION GRANTED; RETRIAL BARRED; INDICTMENT DISMISSED (FIRST DEPT).

The First Department, granting petitioner’s application for a writ of prohibition and dismissing the indictment, determined the trial court should not have, sua sponte, declared a mistrial to accommodate a juror’s weekend travel plans. Retrial was barred:

The trial court was not compelled by manifest necessity to declare a mistrial and terminate the proceedings …, and accordingly, retrial is barred under the Double Jeopardy Clauses of the Federal and New York State Constitutions … . It was an abuse of discretion to declare a mistrial in order to accommodate a juror’s weekend travel plans, including a Friday, which she belatedly informed the court about during deliberations, where the court, as requested by defendant, reasonably could have directed the juror to report for deliberations the following day, and the court also failed to confirm that the jury was hopelessly deadlocked at the time … . Matter of Bannister v Wiley, 2020 NY Slip Op 00522, First Dept 1-28-20

January 28, 2020/by Bruce Freeman

Constitutional Law, Criminal Law, Evidence

THE CO-DEFENDANT’S REDACTED STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE BECAUSE IT WAS CLEAR THE REDACTED PORTIONS REFERRED TO DEFENDANT AND WERE INCULPATORY, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the redacted statement of the co-defendant (Quaile) should not have been admitted in evidence because it was clear the redacted portions referred to the defendant and were inculpatory. Defendant’s right to confront the witnesses against him was violated:

… [A]lthough Quaile’s statement was redacted, the jury was allowed to see where portions were blacked out and, given that the statement focused upon defendant’s arrest and the items found in the trailer, there were “obvious indications that it was altered to protect the identity of a specific person,” namely, defendant … . The redacted statement further advised the jury that defendant was Quaile’s live-in boyfriend, that she did not know what the plastic bottle and tissues found in their bedroom were used for, that she did not know how to make methamphetamine and that she “did not know the answers” to some of [a sheriff’s] questions at the trailer. When those comments are considered in tandem with the location of the blacked-out text in the statement, they can “only be read by the jury as inculpating defendant” by suggesting that he had the information and know-how that Quaile lacked and was involved in the charged crimes … . The admission of the statement therefore violated defendant’s right to confront the witnesses against him. In view of County Court’s failure “to give the critical limiting instruction that the jury should not consider the statement itself against anyone but” Quaile, as well as the lack of methamphetamine in the trailer or test results tying the items found in the trailer to methamphetamine production, we cannot say that the evidence against defendant is overwhelming or ” that ‘there is no reasonable possibility that the erroneously admitted [statement] contributed to the conviction'” … . People v Stone, 2020 NY Slip Op 00323, Third Dept 1-16-20

January 16, 2020/by Bruce Freeman

Constitutional Law, Insurance Law, Real Estate

INSURANCE REGULATION WHICH PROHIBITS TITLE INSURERS FROM PROVIDING VALUABLE INDUCEMENTS TO ATTRACT TITLE INSURANCE BUSINESS IS NOT UNCONSTITUTIONALLY VAGUE, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined Insurance Regulation 208 (11 NYCRR part 228), which prohibits title insurers from providing valuable inducements to attract title insurance business, is not unconstitutionally vague:

Petitioners contend that section 228.2(c) is unconstitutionally vague in setting forth a non-exhaustive list of activities that are “permissible, provided[,]” among other things, that they are “reasonable and customary, and not lavish or excessive” … . The court should have rejected this vagueness challenge, since section 228.2(c) “is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden,” and “the enactment provides officials with clear standards for enforcement so as to avoid resolution on an ad hoc and subjective basis” … . … [T}he words “lavish” and “excessive,” standing in clear contrast with the word “reasonable,” provide adequate notice of the type of behavior that is proscribed. The word “customary” also sets forth a standard that can be understood by an ordinary person … . …

The provisions of section 228.2(c) generally permitting advertising, charitable contributions, and political contributions are consistent with the right to free speech under the First Amendment to the United States Constitution and article I, § 8 of the New York Constitution. … The content-neutral provisions at issue in this case are narrowly tailored to the substantial government interest of clarifying a statute intended to “prevent consumers from being required to subsidize unscrupulous exchanges of valuable things for real estate professionals” … , and that interest is “unrelated to the suppression of free expression” … . Matter of New York State Land Tit. Assn., Inc. v New York State Dept. of Fin. Servs., 2019 NY Slip Op 09366, First Dept 12-26-19

December 26, 2019/by Bruce Freeman

TESTIMONY SUPPORTING THE ADMISSION OF DNA PROFILES WAS HEARSAY WHICH VIOLATED THE CONFRONTATION CLAUSE (CT APP).

JUDGE SHOULD NOT HAVE, SUA SPONTE, ASSESSED POINTS ON A THEORY NOT RAISED BY THE BOARD OF EXAMINERS OF SEX OFFENDERS OR THE PEOPLE; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT).

PLAINTIFF DID NOT SUFFICIENTLY ALLEGE THAT NEW YORK’S PROPERTY TAX SYSTEM DISCRIMINATES AGAINST PROPERTY OWNERS IN “MAJORITY-MINORITY” NEIGHBORHOODS; COMPLAINT SHOULD HAVE BEEN DISMISSED IN ITS ENTIRETY (FIRST DEPT).

28-YEAR PRE-INDICTMENT DELAY IN THIS MURDER CASE DID NOT VIOLATE DEFENDANT’S RIGHT TO DUE PROCESS; DNA PROFILE STEMMING FROM DEFENDANT’S 2008 ARREST MATCHED BLOOD EVIDENCE FROM THE 1984 MURDER (SECOND DEPT).

THE WAIVER OF APPEAL WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY MADE (SECOND DEPT).

THE ARTICLE OF THE RACING, PARI-MUTUEL WAGERING AND BREEDING LAW WHICH ALLOWS INTERACTIVE FANTASY SPORTS (IFS) CONTESTS AND EXCLUDES SUCH CONTESTS FROM THE PENAL LAW GAMBLING PROHIBITIONS VIOLATES THE NEW YORK CONSTITUTION (THIRD DEPT).

STATUTE CRIMINALIZING THE POSSESSION OF AN UNLICENSED FIREARM DOES NOT VIOLATE THE SECOND AMENDMENT (FOURTH DEPT).

TRIAL JUDGE SHOULD NOT HAVE, SUA SPONTE, DECLARED A MISTRIAL TO ACCOMMODATE A JUROR’S WEEKEND PLANS; WRIT OF PROHIBITION GRANTED; RETRIAL BARRED; INDICTMENT DISMISSED (FIRST DEPT).

THE CO-DEFENDANT’S REDACTED STATEMENT SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE BECAUSE IT WAS CLEAR THE REDACTED PORTIONS REFERRED TO DEFENDANT AND WERE INCULPATORY, NEW TRIAL ORDERED (THIRD DEPT).

INSURANCE REGULATION WHICH PROHIBITS TITLE INSURERS FROM PROVIDING VALUABLE INDUCEMENTS TO ATTRACT TITLE INSURANCE BUSINESS IS NOT UNCONSTITUTIONALLY VAGUE, SUPREME COURT REVERSED (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.