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DEFENDANT’S DENIAL OF GUILT MADE WHEN HIS APPEAL WAS PENDING CANNOT BE USED AS THE BASIS FOR THE ASSESSMENT OF POINTS IN A SORA RISK-LEVEL PROCEEDING FOR “FAILURE TO ACCEPT RESPONSIBILITY” (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this SORA risk-assessment proceeding, determined defendant should not have been assessed 10 points for failure to accept responsibility because his denial of guilt was made when his appeal was pending:

… [T]he court should not have assessed 10 points under risk factor 12 for failure to accept responsibility. Defendant’s denials of guilt were made at the time his appeal from his underlying conviction was pending. “Requiring defendant to accept responsibility could potentially result in his admissions being used against him in any retrial, violating his Fifth Amendment right against self-incrimination” … . People v Wallace, 2024 NY Slip Op 05189, First Dept 10-22-24

Practice Point: A denial of guilt made when defendant’s appeal was pending and there was a chance for a retrial cannot be used against him in a SORA risk-level assessment.

 

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THE PROVISION OF THE MENTAL HYGIENE LAW WHICH ALLOWS TEMPORARY CONFINEMENT OF SEX OFFENDERS WITHOUT THE OFFENDER’S PARTICIPATION AT THE PROBABLE CAUSE STAGE IS CONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the Appellate Division, over a two-judge dissenting opinion, determined the procedure under the Mental Hygiene Law which allows the temporary confinement of sex offenders without the offender’s participation at the probable cause stage is constitutional:

This appeal requires us to examine whether certain provisions of Mental Hygiene Law § 10.11 (d) (4) satisfy procedural due process. Those provisions govern the procedure for the temporary confinement of sex offenders adjudicated to have “mental abnormalities”—but released from confinement to strict and intensive supervision and treatment (SIST)—pending a final SIST revocation hearing. * * *

This appeal concerns the initial step in the process for revoking SIST. “If a parole officer has reasonable cause to believe that” a respondent has violated a SIST condition, or if an “evaluation or report by a treating professional indicat[es] that the person may be a dangerous sex offender requiring confinement,” a parole officer may take the violator into custody and transport them to a facility for a psychiatric evaluation, which must take place within five days … . Once the violator is taken into custody, DOCCS must “promptly” notify the Attorney General and the Mental Hygiene Legal Service (MHLS), which provides legal representation to article 10 respondents … . The Attorney General may then petition for confinement or a petition to modify the conditions within five days …  The petition must “be served promptly on the respondent and [MHLS],” and the court must appoint legal counsel to represent the respondent and provide counsel with a copy of the psychiatric evaluation … . If the Attorney General files a petition seeking confinement,

“then the court shall promptly review the petition and, based on the allegations in the petition and any accompanying papers, determine whether there is probable cause to believe that the respondent is a dangerous sex offender requiring confinement. Upon the finding of probable cause, the respondent may be retained in a local correctional facility or a secure treatment facility pending the conclusion of the proceeding” … .

* * * “The respondent shall not be released pending the completion of the hearing” … . People ex rel. Neville v Toulon, 2024 NY Slip Op 05178, CtApp 10-22-24

Practice Point: The provision of the Mental Hygiene Law which allows temporary confinement of sex offenders without the offender’s participation at the probable cause stage is constitutional.

 

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UNDER THE FACTS, THE PRO SE DEFENDANT WAS NOT DEPRIVED OF HIS RIGHT TO PUT ON A DEFENSE BY THE PEOPLE’S ACCESS TO HIS RECORDED JAIL PHONE CALLS; DEFENDANT EFFECTIVELY WAIVED HIS RIGHT TO COUNSEL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, determined (1) the fact that the People had access to defendant’s recorded jail phone calls did not, under the facts, deprive the pro se defendant of his right to present a defense, and (2) the defendant effectively waived his right to counsel:

Under the particular facts of this case, however, we conclude that defendant’s right to present a defense was not impaired by the monitoring of his jail phone calls. Defendant was out on bail for nearly the entire two years between indictment and his mid-trial remand, including more than six months while representing himself, giving him ample time to prepare his witnesses. Even after remand, there is no dispute that defendant had means other than the recorded phone lines to prepare his witnesses. Indeed, the record establishes that defendant’s daughter visited him in jail at his request before he called her to testify so that they could continue their trial preparations in person. The court was proactive in protecting defendant’s rights, permitting him time in the courtroom to speak to each of his witnesses in private before their testimony. In addition, when defendant asked to adjourn for the weekend to prepare his witnesses, the court stated that it would take the matter up in the morning, at which time it was agreed that defendant would testify for most of the remainder of the week. The court also noted that defendant had been assigned a legal advisor and an investigator, both of whom had the expertise and wherewithal to assist in the preparation of the defense.

Although the People’s monitoring of an incarcerated pro se defendant’s jail phone calls may have a chilling effect on the defendant’s trial preparation that threatens the right to present a defense—particularly if the People are able to make use of the information in the calls in the pending trial—the facts here are otherwise. Defendant became aware that the People were listening to his phone conversations only after he had presented the direct testimony of his daughter and an expert. Aside from himself, the only remaining defense witnesses provided character testimony and little else that could be considered relevant to the case. Thus, any chilling effect here was negligible. People v Dixon, 2024 NY Slip Op 05176, CtApp 10-22-24

Practice Point: Under the facts of this case, the pro se defendant was not deprived of his right to present a defense by the People’s access to his recorded jail phone calls.

Practice Point: Here the defendant effectively waived his right to counsel.

 

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THE PORTION OF THE CORRECTION LAW WHICH REQUIRED DEFENDANT BE DESIGNATED A “SEXUALLY VIOLENT OFFENDER,” BASED UPON AN OHIO TELEPHONE-SOLICITATION OFFENSE WHICH DID NOT INVOLVE VIOLENCE, IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a dissent, determined the portion of “Correction Law § 168-a (3) (b), which defines a ‘sexually violent offense’ as a ‘conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred'” is unconstitutional as applied to defendant. Defendant pled guilty to an Ohio offense which prohibits “soliciting” a person 13 to 15 years old by telephone. Violence is not an element of the Ohio offense:

… [W]e conclude that defendant established that he is an “individual[ ] . . . for whom the [sexually violent] offender designation ‘is unmerited’ ” … because the out-of-state conviction was “not sexual[ly violent] in nature and his conduct provides no basis to predict risk of future sexual[ly violent] harm” … . * * *

… [W]e conclude that, as applied to him, the designation of defendant as a sexually violent offender pursuant to the second disjunctive clause of Correction Law § 168-a (3) (b) “unconstitutionally impacts defendant’s liberty interest in a criminal designation that rationally fits his conduct and public safety risk” … . People v Brightman, 2024 NY Slip Op 04654, Fourth Dept 9-27-24

Practice Point: Here the Correction Law required that defendant be designated a “sexually violent offender” based on an Ohio conviction for telephone solicitation of a person between 13 and 15 which did not involve violence. That portion of the Correction Law was deemed unconstitutional as applied to the defendant.

 

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THE MAJORITY HELD DEFENDANT, BY APPROACHING A JUROR AT THE JUROR’S HOME DURING DELIBERATIONS, FORFEITED HIS RIGHT TO A TRIAL BY A JURY OF 12; OVER A DEFENSE MOTION FOR A MISTRIAL, DEFENDANT WAS CONVICTED BY A JURY OF 11 AND THE MAJORITY AFFIRMED; THERE WAS A STRONG DISSENT (SECOND DEPT).

The Second Department, in a comprehensive decision discussing a defendant’s constitutional right to a trial by a jury of 12, over a dissent, determined defendant had forfeited his right to a 12-member jury by approaching a juror at the juror’s home as deliberations were proceeding. Over a defense motion for a mistrial, the trial judge ordered the jury to continue deliberations with 11 jurors. Defendant was convicted:

From the dissent:

… I respectfully disagree with the conclusion of my colleagues in the majority that the defendant’s New York State constitutional rights were not violated upon permitting the jury to proceed with deliberation and conviction of the defendant by an 11-member jury.

… [T]he New York State Constitution specifically guarantees defendants a right to a jury of 12 (see NY Const, art I, § 2; art VI, § 18; …). New York Constitution, article I, § 2 describes the right to a trial by jury as “inviolate forever” and requires the waiver of a jury trial to be achieved by “written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense.” … [T]he Court of Appeals has determined that a defendant may, upon a written waiver executed in the manner specified by the State Constitution, consent to a jury of 11 if a deliberating juror becomes incapacitated and no alternate juror is available … * * *

Here, there is no dispute that the defendant’s conduct was egregious and unacceptable. He feigned an illness so that he could approach a juror, at the juror’s home, clearly in an attempt to influence his trial. While the defendant should not be permitted to “tak[e] advantage of his . . . own wrongdoing” … , I believe it was error for the Supreme Court to utilize the “extreme, last-resort analysis” of denying the defendant his inviolate right to a jury of 12 before considering alternate sanctions for this egregious behavior … . People v Sargeant, 2024 NY Slip Op 04580, Second Dept 9-25-24

Practice Point: Here the defendant was deemed to have forfeited his right to a trial by a jury of 12 by approaching a juror at the juror’s home during deliberations. Defendant’s conviction by a jury of 11 was affirmed over a strong dissent.

 

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A DEFENDANT WHO HAS WAIVED INDICTMENT CANNOT PLEAD GUILTY TO A SUPERIOR COURT INFORMATION (SCI) WHICH INCLUDES AN OFFENSE GREATER THAN ANY CHARGED IN THE CORRESPONDING FELONY COMPLAINT (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea to a superior court information (SCI), over a dissent, determined an SCI cannot include an offense greater than any offense charged in the felony complaint. Here the SCI “charged [defendant] with a higher level offense than any contained in the felony complaint, that is, robbery in the third degree is a class D felony, whereas grand larceny in the fourth degree, the highest offense charged in the felony complaint is an class E felony:”

Neither the Court of Appeals nor this Court has directly addressed the issue now before us: whether an SCI that charges an offense for which a defendant was held for action of a grand jury can also, under CPL 195.20 and consistent with New York Constitution article I, § 6, charge a joinable offense of a higher grade or degree than any contained in the felony complaint. * * *

… [T]he New York Constitution article I, § 6 permits prosecution pursuant to an SCI only for “an offense” for which a defendant has been “held for the action of a grand jury”. Such an “offense” includes “the lesser included offenses as well as a greater offense charged in the felony complaint” … , but does not include a greater offense, not charged in the felony complaint, which has additional aggravating elements … . Permitting inclusion in an SCI of an offense of a higher grade than any charged in the felony complaint “would permit circumvention of” the “constitutional imperative” of prosecution by indictment … . People v Perkins, 2024 NY Slip Op 04361, First Dept 9-5-24

Practice Point: Here, a defendant, who waived indictment, pled to a superior court information (SCI) which included an offense greater than any in the corresponding felony complaint. The inclusion in the SCI of an offense greater than any for which the defendant was held for indictment violates the NYS Constitution.

 

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STATE DESIGN DEFECT AND FAILURE TO WARN ACTION IS PREEMPTED BY THE FEDERAL HAZARDOUS MATERIALS TRANSPORTATION ACT (HMTA), CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, determined the state defective-design and failure-to-warn action stemming from an allegedly defective compressed gas cylinder was preempted by the federal Hazardous Materials Transportation Act (HMTA). …”…  [T]he HMTA’s express preemption provision encompasses state law claims ‘about’ ‘the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing [of] a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce’ … “:

… Federal preemption is based on the US Constitution’s Supremacy Clause …  …

The issue of federal preemption is a question of law …, since it concerns whether, as a matter of statutory interpretation … , Congress has enacted a law for which a particular state rule is “to the Contrary”  … .

An “inquiry into the scope of a statute’s pre-emptive effect is guided by the rule that ‘the purpose of Congress is the ultimate touchstone’ in every pre-emption case” … .. “If a federal law contains an express pre-emption clause,” as here, “it does not immediately end the inquiry because the question of the substance and scope of Congress’ displacement of state law still remains” …

Whether dealing with “express or implied pre-emption, we begin our analysis ‘with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress'” … . “That assumption applies with particular force when Congress has legislated in a field traditionally occupied by the States” … . “Thus, when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption'” … .

Notwithstanding the above, “[i]f the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent” … .

Accordingly, although courts will not hesitate to hold that state common-law claims are preempted by federal legislation, the analysis in each express preemption case must turn on the precise language of the relevant preemption provision … .

… [T]he defense of preemption may be raised at any time  … .Malerba v New York City Tr. Auth., 2024 NY Slip Op 04344, First Dept 8-29-24

Practice Point: Consult this opinion for the analysis of and criteria for preemption of a state action by a federal statute.

 

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NEW YORK’S EARLY MAIL VOTER ACT IS NOT UNCONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge concurring opinion and a dissenting opinion, determined New York’s Early Mail Voter Act is constitutional:

Plaintiffs, a coalition of elected officials, registered voters, and party officials, challenge New York’s Early Mail Voter Act (the Act), which permits all registered voters to vote early by mail in any election in which the voter is eligible to vote. Plaintiffs maintain the Act is unconstitutional and seek a declaratory judgment and a permanent injunction against its implementation and enforcement. The question raised here is difficult. Though the State Constitution contains no language that explicitly requires in-person voting, the legislative and executive branches have often proceeded as if our Constitution requires as such. Our Court has never been asked to determine what the Constitution requires in this regard. Recently, the legislature assumed that the Constitution requires in-person voting, passing concurrent resolutions culminating in the 2021 proposed amendment to authorize mail-in voting. We acknowledge that the public rejected that amendment, and we take seriously both the legislature’s position in 2021 and the voters’ rejection of the proposed constitutional amendment. At the same time, we may not simply defer to the legislature’s assumptions about what the Constitution requires. Our task is to rigorously analyze the constitutional text and history to determine if New York’s Early Mail Voter Act is unconstitutional. We now hold that it is not. Stefanik v Hochul, 2024 NY Slip Op 04236, CtApp 8-20-24

Practice Point: New York’s Early Mail Voter Act is not unconstitutional.

 

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NYU SUFFICIENTLY ALLEGED AN INJURY-IN-FACT ENTITLING IT TO LITIGATE THE CONSTITUTIONALITY OF A NYC ZONING RESOLUTION PROHIBITING THE CONSTRUCTION OF CLASSROOMS AND DORMITORIES IN THE SPECIAL DISTRICT; THERE WAS A COMPREHENSIVE DISSENT (FIRST DEPT). ​

The First Department, over an extensive dissent, reversing Supreme Court, determined plaintiff New York University (NYU) had demonstrated an “injury in fact” which provided standing to contest the constitutionality of a New York City Zoning Regulation (ZR) prohibiting the construction of classrooms and dormitories:

NYU has sufficiently alleged an injury in fact. As stated by the Court of Appeals … , “[t]he injury-in-fact requirement necessitates a showing that the party has an actual legal stake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, ephemeral, or conjectural but is sufficiently concrete and particularized to warrant judicial intervention”; while this requirement “is closely aligned with [the] policy not to render advisory opinions,” “standing rules should not be applied in an overly restrictive manner where the result would be to completely shield a particular action from judicial review” … . * * *

NYU … has alleged not just an interference with its ability or abstract interest but with its actual present intentions and desires, a showing of specific plans is not a necessary additional requirement for an injury-in-fact showing. NYU’s claim that it has had a long-standing and continuing interest in expanding educational uses in the Special District whose implementation has been limited by the variance requirement is further evidenced by the fact that NYU previously put one of its Special District properties to educational use after obtaining a variance. There is no valid basis for predicating the injury-in-fact showing on evidence that NYU has expended time, money and other resources developing a particular plan for the renovation or conversion of a particular Special District property to educational uses. Judicial consideration of NYU’s claim seeking a declaration as to the unconstitutionality of the ZR amendment should not require that it first experience the harm it seeks to avoid by challenging the amendment. New York Univ. v City of New York, 2024 NY Slip Op 04183, First Dept 8-7-24

​Practice Point: Consult this decision for an explanation of what constitutes an injury-in-fact providing a party with standing to litigate the constitutionality of a zoning provision.

 

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A WITNESS IS NOT UNAVAILABLE TO TESTIFY AT A TRIAL BASED UPON THE FEAR OF COMMITTING PERJURY DURING THAT TRIAL; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing the judgment and ordering a new trial, determined a witness was not be unavailable to testify at the trial based upon her fear she would commit perjury at the trial:

“A witness may not claim the privilege of the [F]ifth [A]mendment out of fear that he [or she] will be prosecuted for perjury for what he [or she] is about to say. The shield against self-incrimination in such a situation is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told” … . “Fear of a perjury prosecution can typically form a valid basis for invoking the Fifth Amendment only where the risk of prosecution is for perjury in the witness’ past testimony” … .

“[T]he court focuses inquiry on what a truthful answer might disclose, rather than on what information is expected by the questioner” … . Simply put, the Fifth Amendment “does not permit a witness to invoke the privilege on the ground that he [or she] anticipates committing perjury sometime in the future” … . There is “no doctrine of ‘anticipatory perjury’ ” … . * * *

We … conclude that the court erred in declaring the victim unavailable and allowing her testimony from the first trial to be read to the jury at the retrial. Inasmuch as the victim was the only person who identified defendant as the person who shot her, we cannot conclude that the evidence of defendant’s guilt is overwhelming, and therefore the error cannot be deemed harmless … . People v Smith, 2024 NY Slip Op 03973, Fourth Dept 7-26-24

Practice Point: The Fifth Amendment does not permit a witness to invoke the self-incrimination privilege on the ground the witness anticipates committing perjury in the future.

 

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