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DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER BASED SOLELY UPON THE FACT HE WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN PENNSYLVANIA VIOLATED DUE PROCESS; HOWEVER THE MATTER WAS REMITTED TO DETERMINE WHETHER ANY OF THE PENNSYLVANIA FELONIES WOULD HAVE CONSTITUTED A SEXUALLY VIOLENT OFFENSE IN NEW YORK, A QUESTION NOT RAISED BEFORE COUNTY COURT (FOURTH DEPT). ​

The Fourth Department reversed defendant’s SORA designation as a sexually violent offender based upon Pennsylvania convictions as a violation of due process, but remitted the matter to Count Court for consideration of the issue under another provision of the Correction Law:

… [W]e conclude, based on the reasoning set forth by the plurality in People v Malloy (228 AD3d 1284, 1287-1291 [4th Dept 2024]), that there is no rational basis for designating defendant a sexually violent offender solely on the ground of his conviction of the Pennsylvania felony sex offenses requiring him to register as a sex offender in that jurisdiction … . Defendant has therefore met his burden of showing that the imposition of the sexually violent offender designation under the second disjunctive clause of Correction Law § 168-a (3) (b), as applied to him, violates his constitutional right to substantive due process. Consequently, we reverse the order insofar as appealed from and vacate that designation.

However, we note that the issue whether the essential elements of any of the Pennsylvania felonies were the statutory equivalent of a sexually violent offense in New York under the essential elements test set out in the first disjunctive clause of Correction Law § 168-a (3) (b) was never raised before County Court. We decline to consider that alternative basis for affirmance, sua sponte, for the first time on appeal … . We therefore remit to County Court to consider whether any of the Pennsylvania felonies includes all of the essential elements of a sexually violent offense set forth in Correction Law § 168-a (3) (a) … . People v Boldorff, 2025 NY Slip Op 00765, Fourth Dept 2-7-25

Practice Point: A sexually-violent-offender designation based solely upon the fact defendant was required to register as a sex offender in Pennsylvania was deemed unconstitutional here. But the matter was remitted for a determination whether any of the Pennsylvania felonies would have constituted a sexually violent offense in New York.​

 

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HERE THE DEFENDANT TOWN DID NOT DEMONSTRATE AS A MATTER OF LAW THAT COMPLIANCE WITH THE NEW YORK VOTING RIGHTS ACT (NYVRA) WOULD FORCE THE TOWN TO VIOLATE THE EQUAL PROTECTION CLAUSE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Lasalle, reversing Supreme Court, determined the defendant town did not demonstrate as a matter of law that compliance with the New York Voting Rights Act (NYVRA) would force the town to violate the Equal Protection Clause of the 14th Amendment to the US Constitution:

On this appeal we are asked to decide whether the vote dilution provisions of the John R. Lewis Voting Rights Act of New York (L 2022, ch 226; hereinafter NYVRA), intended to ensure that a numerical minority’s voice is not removed from local government, facially violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (hereinafter the Equal Protection Clause) … . The defendants in this case, the Town of Newburgh and the Town Board of the Town of Newburgh (hereinafter the Town Board), lack the capacity to challenge the constitutionality of the NYVRA except to the extent that it forces them to violate the Equal Protection Clause. Since, on this record, the defendants failed to show as a matter of law that compliance with the NYVRA would force them to violate the Equal Protection Clause, we reverse the order of the Supreme Court. * * *

Here, the defendants contend that any change of its at-large electoral system to comply with the NYVRA would violate the Equal Protection Clause because it would be done with the express purpose of giving citizens statutorily grouped together by race greater electoral success than its at-large system, and that the NYVRA, unlike the FVRA, is not narrowly tailored to achieve a compelling governmental interest. * * *

However, race-based districting is only one of the possible remedies under the NYVRA; the NYVRA also contemplates remedies that do not sort voters based on race, such as such as ranked-choice voting, cumulative voting, limited voting, and the elimination of staggered terms (see Election Law §§ 17-204[3]; 17-206[5][a][ii],[iv] …). Clarke v Town of Newburgh, 2025 NY Slip Op 00518, Second Dept 1-30-25

Practice Point: Consult this decision for an in-depth analysis of whether the New York Voting Rights Act forces a political subdivision the violate the Equal Protection Clause in fashioning a remedy for an alleged violation of the NYVRA.

 

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PURSUANT TO THE VILLAGE CODE, WRITTEN NOTICE BY MAIL AND PUBLICATION IS SUFFICIENT NOTICE OF A TAX LIEN AND SALE (SECOND DEPT).

The Second Department, over a concurrence, determined defendant received adequate notice of the real property tax lien and sale:

The defendant argues that the Village should have been required to commence an in rem tax lien foreclosure proceeding. However, she concedes that, pursuant to L 1993, ch 602, § 6, Code of Village of Hempstead § 119-19, and former Real Property Tax Law § 1452 (repealed by L 1993, ch 602, § 4), “[o]pting out [of a law repealing certain sections of the Real Property Tax Law] allowed the Village of Hempstead and the tax lien purchaser to use the old law, which allowed for sale of the tax lien based on a written notice to the owner by mail and publication, and the issuance of a tax deed after service of a notice to redeem on the owner by mail.” The plaintiff correctly argues that the mailing and publication of the notice of tax lien sale and the mailing of the notice of redemption were sufficient to satisfy due process in this case … . Accordingly, the Supreme Court properly denied the defendant’s cross-motion to set aside the tax lien sale and to cancel the tax deed. BR Madison, LLC v Novas, 2025 NY Slip Op 00417, Second Dept 1-29-25

Practice Point: Here, pursuant to the Village Code, written notice by mail and publication of a tax lien and sale satisfied the property owner’s due process rights.

 

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THE TRIAL JUDGE COMPLETELY BYPASSED THE BATSON PROCEDURE WHEN DEFENSE COUNSEL OBJECTED TO THE PEOPLE’S PEREMPTORY CHALLENGES TO FOUR JURORS; ALTHOUGH THE JURORS HAD BEEN EXCUSED, THE BATSON OBJECTION WAS TIMELY; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; CONVICTION HELD IN ABEYANCE AND MATTER REMITTED; TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, holding the judgment of conviction in abeyance and remitting the matter, in a full-fledged opinion by Justice Pitt-Burke, over a two-justice dissent, determined (1) the appeal raising an unpreserved objection to the trial judge’s handling of a Batson challenge could be considered “in the interest of justice,” and (2) the trial judge erroneously bypassed the Batson procedure for addressing whether racial discrimination was the basis for four of the prosecution’s peremptory challenges. Defense raised the Batson challenge after the four jurors had been excused. The trial judge argued the challenge was untimely and the only remedy was a mistrial. Defense counsel argued, and the prosecution conceded, the challenge was timely, but defense counsel declined to request a mistrial. The First Department noted that remedies other than a mistrial were available—recalling the excused jurors, limiting the prosecution’s peremptory challenges, or granting the defense additional peremptory challenges, for example:

Even if we were to agree that defendant’s claim is unpreserved, we find that the trial court’s errors here were critical, and not merely a case of putting the proverbial cart before the horse … . The trial court’s actions, whether intentional or not, sidestepped the entire Batson protocol.

This Court’s recent precedent has been to exercise its interest of justice jurisdiction to correct unpreserved Batson errors where a trial court has substantially deviated from the Batson protocol. * * *

Crucially, here we are not faced with a circumstance in which the trial court erroneously concluded that defendant did not meet his prima facie burden at step one … . In fact, as noted above, the trial court took notice of the preemptory challenges implemented by the prosecution.

This is also not a circumstance in which the court deviated from the Batson protocol by improperly combining steps two and three … . Rather, we are faced with a circumstance where the trial court failed to provide any inquiry into the question of discrimination by circumventing all three steps of the Batson protocol. People v Luke, 2025 NY Slip Op 00297, First Dept 1-21-25

Practice Point: The failure to adhere to the Batson three-step procedure for addressing discrimination in jury selection can be considered by an appellate court “in the interest of justice” despite the failure to preserve the error.

Practice Point: A Batson challenge raised after the jurors had been excused, but before jury selection is complete, is timely.

Practice Point: Remedies for a Batson challenge first raised after the jurors have been excused include recalling the excused jurors, limiting the prosecution’s peremptory challenges, and granting the defense additional peremptory challenges.

 

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DEFENDANT’S UNEQUIVOCAL ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS IGNORED REQUIRING SUPPRESSION OF THE SUBSEQUENT STATEMENTS; THE ERROR WAS DEEMED HARMLESS (THIRD DEPT).

The Third Department determined defendant was improperly questioned after he unequivocally asserted his right to remain silent, but found the error harmless:

Approximately 45 minutes into the interview, after defendant had been provided his Miranda rights and answered numerous inquiries, defendant told the investigators that just prior to the shooting he observed a fight between a man and a woman on Crane Street. Defendant then provided no audible responses to investigators’ questions for several minutes. One of the investigators repeated the inquiry as to the next thing defendant remembered, and, after about eight seconds of silence, defendant said “get the f**k out of here b***h, you trying to play me.” The investigator then asked defendant what he said and defendant repeated his statement. This prompted the investigator to respond that he would leave if defendant wanted him to. However, the investigator then attempted to persuade defendant to continue the interview, stressing that the investigators needed defendant’s side of the story in light of the damaging evidence against him. It is evident from this interaction that the investigators understood defendant’s statement as an unequivocal request for them to leave the room and for the interview to end … . By continuing the interview without providing further warnings, defendant’s right to remain silent was violated and the remainder of the recorded interview should have been suppressed … .

Nevertheless, our inquiry is not complete, as we must assess whether that error was harmless. “Where, as here, the asserted error is of a constitutional dimension, the error may be deemed harmless only if there is no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt” … . … [T]he … evidence of defendant’s guilt, which included multiple angles of video footage that depicted defendant on scene and discharging several projectiles from his firearm at a crowd, together with witness testimony that corroborated the footage, was overwhelming. * * * … [W]e conclude that the error was harmless under the constitutional standard and that reversal is not required … . People v Dorvil, 2025 NY Slip Op 00246, Third Dept 1-16-25

Practice Point: Ignoring defendant’s unequivocal assertion of his right to remain silent is an error of constitutional dimension which will be deemed harmless only if there is “no reasonable possibility” the error might have contributed to defendant’s conviction.

 

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THE DEFENDANT WAS NOT NOTIFIED HE WOULD BE CLASSIFIED AS A SEXUALLY VIOLENT OFFENDER, A VIOLATION OF HIS RIGHT TO DUE PROCESS WHICH DEPRIVED HIM OF THE OPPORTUNITY TO CHALLENGE THE DESIGNATION ON CONSTITUTIONAL GROUNDS; MATTER REMITTED (THIRD DEPT). ​

The Third Department, vacating the sexually violent offender designation, determined the failure to notify defendant that he would be classified as a violent sexual offender deprived defendant of due process resulting in his inability to argue his constitutional objections to the designation on appeal. The matter was remitted:

Here, neither the Board nor the People requested that County Court designate defendant a sexually violent offender, and the designation was never mentioned at the hearing … . Although the court appropriately concluded that the foreign registration clause compelled it to designate defendant a sexually violent offender … , the court erred when it failed to provide defendant with notice and an opportunity to be heard on his designation before issuing a determination (see Correction Law § 168-k [2] …). This error prejudiced defendant, as he could not timely assert, and thereby preserve, the constitutional defenses he presses on appeal … . Specifically, defendant contends that his designation as a sexually violent offender violates his rights to substantive due process and equal protection of the laws and runs afoul of the Privileges and Immunities Clause … . People v Schultz, 2025 NY Slip Op 00251, Third Department 1-16-25

Practice Point: Although the judge was required to designate defendant as a sexually violent offender, the failure to notify him and give him an opportunity to be heard deprived him of his right to challenge the designation on constitutional grounds. The sexually-violent-offender designation was vacated and the matter remitted.

 

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PLAINTIFF WAS WORKING ON POWER LINES WHILE SUSPENDED FROM A HELICOPTER WHEN THE HELICOPTER LOST CONTROL AND CRASHED; PLAINTIFF’S LABOR LAW 200, 240 AND 241(6) CAUSES OF ACTION WERE NOT PREEMPTED BY THE FEDERAL AVIATION ACT (FAA) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, over a two-justice dissent, determined the Federal Aviation Act (FAA) did not preempt New York’s Labor Law protections for workers. Plaintiff was working on power lines and towers while suspended from a helicopter when the helicopter collided with a structure, lost control and crashed. Plaintiff sued the general contractor for failure to provide adequate safety devices. This lawsuit did not include the helicopter company or seek damages for negligent operation of the helicopter (apparently addressed by other lawsuits against different defendants):

Plaintiff’s complaint … asserted claims against defendant as the general contractor on the project alleging that defendant was negligent and violated Labor Law §§ 200, 240 and 241 (6), as well as the Industrial Code (see 12 NYCRR 23-1.7). * * *

… [T]he FAA “contained a saving provision preserving pre-existing statutory and common-law remedies” …, and it continues to authorize “any other remedies provided by law” in addition to the ones created by the FAA … . In other words, the FAA contemplates that state law remedies survive its enactment and may be pursued within its purview, including “state law personal injury suits” … . The question is accordingly not whether the FAA preempts all state law claims that somehow intersect with air safety — its own terms make clear that it does not — but whether the claims arise in the area of air safety and “interfere with federal laws and regulations sufficiently to fall within the scope of the preempted field” … . …

Plaintiff’s claims … arise out of the state’s police power to regulate occupational health and safety issues, not aviation, and defendant points to “nothing in [the FAA or implementing regulations] indicating that Congress meant to affect state regulation of occupational health and safety, or the types of damages that may be recovered” for a violation of those workplace safety standard … . Scaletta v Michels Power, Inc., 2025 NY Slip Op 00258, Third Dept 1-16-25

Practice Point: Consult this decision for a discussion of field and conflict preemption issues in the context of the Federal Aviation Act and New York’s Labor Law protections for workers. Plaintiff was suspended from a helicopter working on power lines when the helicopter lost control and crashed.

 

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THE MAJORITY AFFIRMED WITHOUT DISCUSSION; JUDGE RIVERA IN A DISSENTING OPINION JOINED BY JUDGE WILSON WOULD HAVE REVERSED ON INEFFECTIVE ASSISTANCE GROUNDS (CT APP). ​

The Court of Appeals affirmed defendant’s burglary, assault, criminal contempt and resisting arrest convictions without discussion. Judges Rivera and Wilson would have reversed on ineffective assistance grounds:

From the dissent:

Counsel’s performance here was deficient in several respects and no reasonable defense strategy explains those failings. Before trial, counsel’s boilerplate motion referenced matters not at issue and lacked factual support in several respects, evincing counsel’s failure to properly investigate defendant’s case. Counsel also failed to show defendant video crucial to the prosecution’s case until shortly before trial—and even then, only after defendant complained to the court and the court ordered counsel to provide the video. During trial, counsel’s cross-examination of the victim resulted in admission of defendant’s criminal history, even though the trial court had denied the prosecution’s request to present that same history should defendant testify. Counsel then failed to object to an obviously-ambiguous jury instruction that might have resulted in a conviction on the top count. Despite these glaring errors, the majority concludes that defendant received constitutionally-acceptable representation. This outcome ignores our precedents and reduces the right to effective counsel to a platitude spoken to appease defendants. Our State Constitution’s guarantee of effective assistance ensures the integrity of the process and a fair trial—including for those defendants who appear guilty. Counsel’s many errors fell below that standard. I would therefore reverse and order a new trial. People v Howard, 2025 NY Slip Op 00184, CtApp 1-14-25

Practice Point: Although the majority affirmed the convictions without discussion, the two-judge dissenting opinion described “glaring errors” by defense counsel in detail.

 

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REMOVAL OF THE CHILDREN FROM MOTHER’S CARE WITHOUT NOTICE DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS; THE EVIDENCE DID NOT SUPPORT REMOVAL OF THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the removal of the children from mother’s care without notice violated mother’s due process rights. In addition, the evidence did not support the removal:

… [P]ursuant to a dispositional order, the children were released to their mother’s care with ACS [Commissioner of the Administration for Children’s Services] supervision. ACS moved pursuant to Family Court Act § 1061 to extend the period of supervision. Family Court violated the mother’s due process rights when, on the return date of the motion, it sua sponte removed the children without giving the mother notice or an opportunity to be heard and, at a later hearing, effectively imposed upon the mother the burden of showing that the removal was unwarranted … . There was nothing in the language of the agency’s motion to put the mother on notice that the children might be removed from her care on the return date, and the record demonstrates that the mother was not given a meaningful opportunity to be heard on the issue … . Moreover, the agency maintained that it was in the children’s best interests to remain with the mother, and the children’s attorney supported the agency’s position.

Furthermore, Family Court’s decision to continue the children’s placement in the agency’s care until the next placement hearing was not supported by a sound and substantial basis in the record …  Contrary to the court’s conclusion, neither the initial neglect petition nor the order to show cause alleged that the mother used illicit substances or was impaired while taking care of the children. Moreover, during the 10-month period of supervision in 2023—2024, the mother submitted to at least three random drug screenings and tested negative for all illicit substances. When the mother underwent an evaluation by a credentialed alcohol and substance abuse counselor on February 1, 2024, she was not found to need any drug treatment services. Matter of E.I. (Eboniqua M.), 2025 NY Slip Op 00022, First Dept 1-2-25

Practice Point: Here removal of the children from mother’s care without prior notice to mother violated her due process rights. Removal was not supported by the evidence.

 

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THE COMPLAINT STATED CAUSES OF ACTION PURSUANT TO 18 USC 1983 AGAINST INDIVIDUAL POLICE OFFICERS FOR DEPRIVING PLAINTIFF OF HIS RIGHT TO A FAIR TRIAL AND HIS RIGHT TO BE FREE FROM CONTINUED DETENTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined several 42 USC 1983 causes of action against individual police officers should not have been dismissed. The Second Department noted allegations that individual police officers violated plaintiff’s constitutional rights need not be based upon a municipal policy or custom. Plaintiff alleged the officers fabricated evidence and conspired with the district attorney’s office to deprive him of his right to a fair trial and his right to be free from continued detention:

The plaintiff alleged … that the individual defendants, with knowledge that the plaintiff was not guilty, improperly caused the neup witness to identify the plaintiff as the shooter and thereafter caused him to be prosecuted. … [T]he allegations in the complaint were sufficient to plead the personal involvement of the individual defendants in the deprivation of the plaintiff’s right to a fair trial … . Moreover, the Supreme Court improperly concluded that this cause of action was defective for failing to satisfy the “policy or custom” standard. Since the plaintiff was asserting a cause of action against the individual defendants in their individual capacities for an alleged constitutional violation … he was not required to allege facts satisfying that standard … . * * *

… [T]he complaint sufficiently stated a viable cause of action alleging a violation of the plaintiff’s right to be free from continued detention insofar as asserted against the individual defendants. The complaint alleged that the individual defendants knowingly concealed, among other things, evidence regarding the improper lineup identification, thereby “suppress[ing] evidence that was favorable to the plaintiff during the criminal proceeding” … . …

[U]nder the intra-corporate or intra-enterprise conspiracy doctrine,” and subject to certain exceptions, employees of “a public entity generally cannot conspire with [other] employees or agents” of the same entity, since “all are considered a single entity” … . Here, however, the doctrine is inapplicable because the plaintiff alleged that the individual defendants, members of the New York City Police Department, conspired with employees of a distinct governmental entity, the Queens County District Attorney’s Office … . Pressley v City of New York, 2024 NY Slip Op 06563, Second Dept 12-24-24

Practice Point: Causes of action asserting the violation of constitutional rights by individual police officers, as opposed to by the police department as a municipal entity, need not allege the violations were pursuant to a department policy or custom.

Practice Point: Although a conspiracy to violate constitutional rights cannot be based upon an agreement among police officers in a single department, it can be based upon an agreement among police officers and district attorneys.

 

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