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THE ENABLING ACT WHICH TASKED A LEGISLATIVE COMMITTEE WITH DECIDING WHETHER THE SALARIES OF LEGISLATORS AND STATE OFFICIALS SHOULD BE INCREASED IS CONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over an extensive concurring opinion and a two-judge dissent, determined the enabling act which empowered a committee to decide whether to increase the salaries of legislators and state officials was constitutional. The opinions are far too comprehensive to fairly summarize here:

In this declaratory judgment action, plaintiffs challenge the constitutionality of part HHH of chapter 59 of the Laws of 2018 (the enabling act), in which the Legislature tasked the Committee on Legislative and Executive Compensation with determining, after consideration of various factors, whether “the salary and allowances of the members of the [L]egislature” and certain other state officials “warrant an increase” … . The enabling act further provided that the Committee’s recommendation with respect to any salary changes would become effective unless modified or abrogated by statute. Inasmuch as defendants have failed to overcome the presumption of constitutionality afforded to the enabling act as a duly enacted state statute … , we affirm. Delgado v State of New York, 2022 NY Slip Op 06538, CtApp 11-17-22

Practice Point: Here the enabling act which tasked a legislative committee with deciding whether the salaries of legislators and state officials should be increased was deemed constitutional.

 

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THE FACT THAT DEFENDANT DID NOT APPEAL HIS 2006 CONVICTION ON THE GROUND HE WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION DID NOT PREVENT DEFENDANT FROM RAISING THAT ISSUE TO CHALLENGE THE CONSTITUTIONALITY OF THE 2006 CONVICTION IN THE CONTEXT OF A PERSISTENT VIOLENT FELONY OFFENDER PROCEEDING (THIRD DEPT).

The Third Department, vacating defendant’s sentence as a persistent violent felony offender, determined the fact that defendant didn’t appeal his 2006 conviction on the ground he was not informed of the period of postrelease supervision did not prevent him from raising that issue to challenge use of the 2006 conviction in a persistent-felony-offender proceeding:

Defendant … challenged the constitutionality of the 2006 conviction, alleging that he was not informed during the plea allocution that his sentence would include a period of postrelease supervision … . The record reflects that Supreme Court and the People were under the impression that, because defendant had not raised that objection at his 2006 sentencing and had never appealed the 2006 judgment of conviction, such conviction remained unchallenged as of the hearing date and that, as a consequence, defendant’s sole recourse was to bring a motion under CPL article 440 seeking to vacate that conviction. Defendant was advised that, if the CPL article 440 motion was successful, he could then petition Supreme Court regarding his status as a persistent violent felony offender. The court then adjudicated defendant a persistent violent felony offender.

Significantly, “[n]otwithstanding his failure to appeal from the [2006] conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained” … . Under these circumstances, defendant was not afforded a sufficient opportunity to challenge the constitutionality of his 2006 conviction at the hearing. Accordingly, the sentence must be vacated and the matter remitted for a proper persistent felony offender hearing under CPL 400.16 and resentencing. People v Hoyt, 2022 NY Slip Op 05894, Third Dept 10-20-22

Practice Point: The fact that defendant did not appeal his 2006 conviction on the ground he was not informed of the period of postrelease supervision did not prevent defendant from challenging the use of the 2006 conviction in a persistent violent felony offender proceeding on that same ground.

 

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​ AN AMENDED REGULATION DESIGNED TO PROTECT THE INTERESTS OF LIFE-INSURANCE AND ANNUITY CONSUMERS IS NOT VOID FOR VAGUENESS AND WAS PROPERLY CRAFTED AND ISSUED BY THE NYS DEPARTMENT OF FINANCIAL SERVICES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the appellate division, determined an amended regulation designed to protect the interests of life-insurance and annuity consumers was not void for vagueness and was properly crafted and issued by the NYS Department of Financial Services (DFS):

The amendment addressed concerns that the purchase of annuities and life insurance had become increasingly complex with more products available to purchase. DFS reasoned that consumers, finding themselves more reliant on professional advice in order to understand the options available and to make purchasing decisions, had become more susceptible to producers and insurers recommending transactions that prioritized their own compensation over the consumer’s best interest … . The amendment … extended the scope of the regulation to cover both annuity and life insurance contracts, and created a new standard applicable when producers and insurers make “recommendations” to consumers. The amended regulation, which applies to both “sales transactions” and “in-force transactions” … , requires that producers, or insurers when no producer is involved, act in the “best interest of the consumer” when making a “recommendation” … .

The producer or insurer must, among other things: make “reasonable efforts” to obtain the consumer’s “suitability information”; base any recommendation “on an evaluation of the relevant suitability information” that “reflects the care, skill, prudence, and diligence that a prudent person acting in a like capacity and familiar with such matters would use under the circumstances then prevailing”; “[o]nly [consider] the interests of the consumer . . . in making the recommendation” and not be influenced by compensation or other incentives; recommend only “suitable” transactions; and have a “reasonable basis” to believe that the consumer has been reasonably informed of the features of the policy, the potential consequences of the transactions, both favorable and unfavorable, and that the consumer would benefit from certain features of the policy and the particular policy as a whole … . Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v New York State Dept. of Fin. Servs., 2022 NY Slip Op 05917, CtApp 10-20-22

Practice Point: An amended regulation designed to protect the interests of life-insurance and annuity consumers is not void for vagueness and was properly created and issued by the NYS Department of Financial Services. The amendment seeks to ensure the advice given to consumers does not place the financial compensation of the insurer ahead of the best interests of the consumer.

 

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DESPITE THE DRIVER’S FAILURE TO USE A TURN SIGNAL AS THE JUSTIFICATION FOR THE TRAFFIC STOP, DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THE STOP WAS ACTUALLY BASED UPON RACIAL PROFILING; IN THE FIRST DEPARTMENT THE “TURN SIGNAL” GROUND FOR THE STOP WOULD BE ENOUGH, EVEN IF THE STOP WAS ACTUALLY MOTIVATED BY DISCRIMINATION; NOT SO IN THE THIRD DEPARTMENT (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Lynch, disagreeing with the First Department, determined defendant was entitled to a hearing on his motion to vacate his conviction on the ground the traffic stop was motivated by racial profiling. The traffic stop was justified by the driver’s failure to use a turn signal. In the First Department, that is good enough, even if racial profiling was the real reason for the stop. Not so in the Third Department:

… [Defendant] asserted a violation of his constitutional rights … based on the allegedly discriminatory police stop. Defendant, who is black, supported this claim with sworn affidavits from himself and the vehicle’s driver. The driver — a white woman — averred in her affidavit that, during the police encounter, the investigator who initiated the stop chided her, saying “you stupid little white b****, you think this black guy cares about you, but he’s just using you to run drugs.” .* * *

… [W]e are mindful that both the majority and dissent in Robinson rejected as unworkable the “primary motivation” subjective test for a traffic stop (see People v Robinson, 97 NY2d at 353; id. at 371 …). We abide by that conclusion. Whether a traffic stop was premised on racial profiling must be assessed objectively with reference to the facts and circumstances of the encounter. Such considerations may include, for example, whether the arresting officers were involved in a plausible investigation prior to executing the vehicle stop. Also important — and certainly most relevant here — is consideration of the officers’ actions and comments during the encounter. …

Defendant [submitted] the sworn affidavit of the driver of the vehicle, who … recounted a highly concerning racist statement ostensibly made by the investigator conducting the stop. … [T]he People neither controverted the driver’s statement nor included an affidavit from the investigator doing so … . Having demonstrated his right to a hearing (see CPL 440.30 [5]), defendant bears the burden of proving his claims by a preponderance of the evidence … . In resolving the motion, the court should undertake an objective analysis of the facts and circumstances of the entire police encounter. People v Jones, 2022 NY Slip Op 05892, Third Dept 10-20-22

Practice Point: In the Third Department, even if there exists a valid reason for a vehicle stop, here the failure to use a turn signal, the stop may still be deemed invalid if it was motivated by racial profiling. In the First Department, the turn-signal violation would be enough, even if the actual motivation was discriminatory.

 

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A CITY CODE ENFORCEMENT OFFICER ORDERED PETITIONER-TENANT TO VACATE HER APARTMENT AFTER FINDING SOME WINDOWS DID NOT OPEN; PENDING THE INSTANT APPEAL, THE CITY AMENDED THE CODE TO ALLOW A HEARING IN THIS CIRCUMSTANCE (RELIEF REQUESTED BY THE PETITIONER); THE CODE ENFORCEMENT OFFICER WAS AN AGENT OF THE STATE AND PETITIONER WAS ENTITLED TO COSTS, DISBURSEMENTS AND COUNSEL FEES AS THE PREVAILING PARTY IN THIS ACTION AGAINST THE STATE (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Fisher, determined petitioner-tenant was entitled to costs, disbursements and counsel fees in petitioner’s action against the city for ordering petitioner to vacate her apartment without first affording a hearing. The order to vacate was made after the code enforcement officer found windows in the apartment which could not be opened and an electrical problem. Before the appeal was heard, the city amended to code to provide an administrative hearing to those ordered to vacate their apartments. Petitioner was deemed to be a prevailing party and was therefore entitled to costs, disbursements and counsel fees:

Petitioner entered into a lease agreement for a second-floor apartment in the City of Schenectady … . … [P]etitioner contacted respondent City of Schenectady Code Enforcement Office and reported problems with the apartment including, among other things, that only three of the windows in the apartment could be opened. Following this complaint, the owner hired a repairperson to fix the windows … . … [A] code enforcement officer conducted an inspection of said premises. Upon finding that several of the second-floor windows still could not be opened and there was an electrical violation, the code enforcement officer issued an order to “immediately vacate” the second floor of the premises due to “sealed emergency rescue openings” and “unsafe conditions.” The order to vacate listed multiple violations of the Property Maintenance Code of New York State (19 NYCRR part 1226 [hereinafter PMCNYS]) and violations of the Code of the City of Schenectady. * * *

… [R]espondents argue that Supreme Court erred in awarding petitioner counsel fees because this matter is not a civil action against the state within the meaning of CPLR 8601 (a) and, nonetheless, respondents were substantially justified in their acts. We disagree. “CPLR 8601 (a) mandates an award of fees and other expenses to a prevailing party in any civil action brought against the state, unless the position of the state was determined to be substantially justified or that special circumstances render an award unjust” … .

… [G]iven [the] statutory and regulatory framework, we are satisfied that respondents’ code enforcement officer acted as a state agent in issuing the order in the course of his enforcement of the PMCNYS…. .

… [P]etitioners were expressly entitled to a post-deprivation administrative hearing pursuant to Property Maintenance Code of New York State § 103.2.1. That provision contemplates a prompt forum for a dispossessed occupant to address his or her concerns with the involved municipal officials. … [R]espondents’ disregard of petitioner’s repeated requests for such a hearing effectively deprived her of a meaningful opportunity to be heard. Respondents’ failure to follow up on the code violations only compounded the problem. Matter of Brown v City of Schenectady, 2022 NY Slip Op 05245, Third Dept 9-21-22

Practice Point: A tenant ordered to vacate an apartment by a code enforcement officer is entitled to a prompt hearing.

Practice Point: A municipal code enforcement officer is an agent of the state. Therefore, a suit against a municipal code enforcement officer is a suit against the state entitling the prevailing party to costs, disbursements and counsel fees.

 

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RETROACTIVE IMPOSTION OF THE SUPPLEMENTAL SEX OFFENDER VICTIM FEE DOES NOT VIOLATE THE EX POST FACTO CLAUSE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the retroactive imposition of the supplemental sex offender victim fee did not violate the Ex Post Facto Clause of the US Constitution. The fee was deemed to have a revenue-generating purpose, not a punitive purpose, and was not so punitive in effect as to negate the revenue-generating purpose. The court noted two two decisions (People v Bradshaw, 76 AD3d 566, People v Diggs, 73 AD3d 1210).should no longer be followed:

… [A] review of the legislative history of the 2004 amendment pursuant to which the supplemental sex offender victim fee was added to Penal Law § 60.35, reveals that it was part of an act entitled “Appropriations-Budgets,” that enacted “into law major components of legislation which are necessary to implement the state fiscal plan for the 2004-2005 state fiscal year” … . …

Next, we proceed to the second step of the inquiry, and consider whether the statute is punitive in effect … . In so doing, we consider the following factors articulated in Kennedy v Mendoza-Martinez (372 US 144): “[1] whether the sanction involved an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned” … . People v Bradshaw, 2022 NY Slip Op 05216, Second Dept 9-21-22

Practice Point: Retroactive imposition of the supplemental sex offender victim fee does not violate the Ex Post Facto clause. The purpose of the fee is to generate revenue, not to punish. The fee is not so punitive in nature as to negate its revenue-generating purpose.

 

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PETITIONER’S APPLICATION FOR A PISTOL PERMIT SHOULD HAVE BEEN GRANTED; NEW YORK’S “PROPER CAUSE” STANDARD IS NO LONGER APPLICABLE PURSUANT THE US SUPREME COURT’S RULING IN “NEW YORK STATE RIFLE & PISTOL ASSN V BRUEN” (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the recent US Supreme Court decision New York State Rifle & Pistol Assn., Inc. v Bruen (597 US _, 142 S Ct 2111 [2022] required that petitioner’s application for a pistol permit be granted. New York’s “proper cause” standard is no longer applicable:

Petitioner commenced this CPLR article 78 proceeding challenging the determination by the New York City Police Department denying an application to renew a business carry handgun license. Supreme Court denied and dismissed the petition on the ground that the Police Department had a rational basis to deny the renewal of a business carry license where petitioner’s application did not establish “proper cause” within the meaning of Penal Law § 400.00 (see 38 RCNY 5-03). Supreme Court also found petitioner’s constitutional rights were not violated.

We are constrained by the recent United States Supreme Court decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US _, 142 S Ct 2111 [2022]) which mandates the grant of this CPLR article 78 petition. Specifically, in Bruen , the United States Supreme Court held that denial of a license applications for failing to satisfy New York’s “proper cause” standard, under which the applicants had to demonstrate a special need for self-protection distinguishable from that of the general community, was unconstitutional as violative of the Second Amendment to the United States Constitution, which protects an individual’s fundamental right to keep a firearm, and the Fourteenth Amendment to the United States Constitution, which makes this right equally applicable throughout the states.  Matter of Callahan v City of New York, 2022 NY Slip Op 05057, First Dept 8-30-22

Practice Point: Pursuant to the US Supreme Court’s ruling in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US _, 142 S Ct 2111 [2022] the “proper cause” standard for issuing a pistol permit no longer applies. Petitioner’s application should have been granted.

 

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THE ATTORNEY GENERAL’S PETITION ALLEGING RESPONDENT DISINFECTANT-DISTRIBUTOR ENGAGED IN PRICE GOUGING AT THE OUTSET OF THE COVID-19 PANDEMIC SHOULD NOT HAVE BEEN DISMISSED; THE CONTROLLING STATUTE, GENERAL BUSINESS LAW 396-R, IS NOT VOID FOR VAGUENESS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court, determined the attorney general’s (AG’s) petition alleging that the respondent distributor (Quality King Distributors, Inc) engaged in price gouging should not have been dismissed. The petition alleged Quality King raised the price of Lysol, a disinfectant, at the outset of the COVID-19 pandemic in violation of General Business Law 396-r. The First Department rejected the argument the relevant statutory provisions were void for vagueness:

In the special proceeding underlying this appeal, petitioner Attorney General of the State of New York accused respondent Quality King Distributors, Inc. of engaging in price gouging in contravention of General Business Law § 396-r based on its sale of certain Lysol products in the first four months of 2020. … [W]e reverse Supreme Court’s order denying the AG’s petition and, in effect, dismissing the proceeding, and remand the matter for further proceedings. * * *

Employing the February 26, 2020 onset date, our review of the purchase and sale data discloses several instances in which the amount charged to a particular customer in a particular transaction represents, prima facie, a gross disparity between the price of the Lysol product and the price at which it was sold by Quality King in the usual course of business immediately prior to the onset of the abnormal disruption of the market. …

Thus, the AG’s evidence demonstrated, prima facie, that Quality King sold the Lysol product at unconscionably excessive prices on at least several occasions. Matter of People of the State of N.Y. v Quality King Distribs., Inc., 2022 NY Slip Op 05010, First Dept 8-23-22

Practice Point: The petition sufficiently alleged the distributor of Lysol, a disinfectant, engaged in price-gouging in violation of General Business Law 396-r at the outset of the COVD-19 pandemic.

 

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ALTHOUGH DEFENDANT WAS PROPERLY DETAINED, ONCE THE PAT-DOWN SEARCH REVEALED DEFENDANT DID NOT HAVE A WEAPON THE POLICE WERE NOT JUSTIFIED IN REMOVING THE (STOLEN) WALLET FROM DEFENDANT’S POCKET AND SEARCHING IT; THE ERROR WAS NOT HARMLESS UNDER THE STANDARD FOR CONSTITUTIONAL ERROR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress the wallet seized in the search of his person should have been granted. The related robbery convictions were reversed and a new trial on those counts was ordered. Defendant fled from the scene of the mugging and was properly detained by the police. However, once the pat-down search revealed defendant did not have a weapon, the police should not have seized the (stolen) wallet from defendant’s pocket and searched it. The “constitutional” error was not harmless because, under the facts, the error could have influenced the factfinder:

… [E]ven assuming that the officers were justified in performing a protective frisk … , there was no justification for searching the defendant’s pants pocket, reaching into it, and removing the wallet. In the course of conducting a protective pat-down based upon reasonable suspicion, “[o]nce an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion” … . There was no evidence presented at the suppression hearing that, during his frisk of the defendant, Nelson felt anything in the defendant’s pocket that seemed to be a weapon or that could have posed a danger to the officers at the scene. Indeed, Nelson did not testify at the hearing. Accordingly, there was no lawful basis for removing the wallet from the defendant’s pocket … , and that act violated the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures … . The officers committed an additional constitutional violation when, after retrieving the wallet from the defendant’s pocket, they opened it and conducted a warrantless search of its contents … . * * *

… [U]nder the constitutional standard, an error cannot be harmless if there is a reasonable possibility that it may have been a contributing factor that influenced the factfinder’s determination … . People v Lewis, 2022 NY Slip Op 04920, Second Dept 8-10-22

Practice Point: Although defendant was properly detained in a street stop, once the pat-down search revealed defendant did not have a weapon the police were not justified in seizing the stolen wallet from defendant’s pocket and then searching it.

Practice Point: There are two sets of harmless-error criteria, one for nonconstitutional error and one for constitutional error. Under the constitutional-error criteria, the error in this case was not harmless and a new trial was ordered.

 

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WHERE DEFENDANT ASSERTED HIS INNOCENCE AT TRIAL, HAS A PENDING APPEAL AND ASSERTS HIS RIGHT AGAINST SELF-INCRIMINATION IN THE SORA PROCEEDING, THE SORA COURT SHOULD NOT ASSESS POINTS UNDER RISK FACTOR 12 FOR FAILURE TO TAKE RESPONSIBILITY FOR THE OFFENSE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt, reversing the SORA court, in a matter of first impression, determined that where defendant asserted his innocence at trial, has a pending appeal, and has asserted his right to avoid self-incrimination, he should not be assessed points under risk factor 12 for failing to take responsibility for the relevant offense:

… [W]e conclude that a defendant who has invoked his Fifth Amendment right against self-incrimination and has a direct appeal pending should not be assessed points under risk factor 12. Considering this conclusion, and in view of defendant’s consistent refusal to incriminate himself and the pending status of his direct appeal, the assessment of 10 points under this factor amounts to a violation of defendant’s Fifth Amendment rights. * * *

… [D]efendant was forced to choose between, on the one hand, exercising his Fifth Amendment right against self-incrimination and being assessed points under risk factor 12, and, on the other, admitting responsibility for the acts that led to his conviction after so far maintaining his innocence and risking that those admissions would be used against him in a potential retrial or form the basis of a perjury charge. Ultimately, the penalty imposed on defendant when presented with this choice is that he was assessed 10 points under risk factor 12 and adjudicated a risk level two sex offender.

The difference between a level one and level two sex offender adjudication is substantial and illustrative of why the penalty is so great as to compel self-incrimination. If defendant were classified as a level one sex offender, he would be required to register annually for a period of 20 years from the date of initial registration (see Correction Law § 168-h), but his personal information would not be listed in a publicly available database. However, as a level two sex offender, defendant would be required to register annually for life (see Correction Law § 168-h), and his photograph, address, place of employment, physical description, age, and distinctive markings would be included in a public database (see Correction Law § 168-q). People v Krull. 2022 NY Slip Op 04783, First Dept 8-2-22

Practice Point: Here defendant asserted his innocence at trial, had a pending appeal and asserted his right against self-incrimination in the SORA proceedings. The SORA court should not have assessed points under risk factor 12 for failure to take responsibility for the offense.

 

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