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THE STATUTE REQUIRING DEFENDANT TO REGISTER AS A SEXUALLY VIOLENT OFFENDER BASED ON AN OUT-OF-STATE CONVICTION FOR A NONVIOLENT OFFENSE IS UNCONSTITUTIONAL AS APPLIED TO DEFENDANT (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the statute which required designating defendant a sexually violent offender based upon an out-of-state conviction for a nonviolent offense was unconstitutional as applied to her:

In this proceeding under the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant appeals from an order insofar as it designated her a sexually violent offender. Defendant was previously convicted in North Carolina upon her guilty plea of sexual activity by a substitute parent under the theory of aiding and abetting, a felony offense (former NC Gen Stat § 14-27.7 [a]). The conviction required her to register as a sex offender in that state. After defendant moved to New York, the Board of Examiners of Sex Offenders (Board) determined that she was required to register as a sex offender in New York pursuant to Correction Law … .

… [T]he foreign registration clause of Correction Law § 168-a (3) (b) does not withstand constitutional scrutiny as applied to her. Initially, we agree with the People that, although a sexually violent offender designation affects a “liberty interest . . . [that] is substantial” … because it “imposes a stigma that broadly impacts a defendant’s life and ability to participate in society” … , “[t]he right not to have a misleading label attached to one’s serious crime is not fundamental in [the constitutional] sense” … . As a result, defendant’s “constitutional claims [are] subject to [*2]deferential rational basis review” … . That standard of review “is not a demanding” test, but rather “is the most relaxed and tolerant form of judicial scrutiny” … .

Here, defendant established that the People never disputed the nonviolent nature of the sex offense of which defendant was convicted in North Carolina and neither the Board nor the People requested that points be assessed under risk factor 1 for use of violence. Moreover, in support of their position that defendant be designated as a sexually violent offender, the People never argued that the sex offense was the statutory equivalent of a sexually violent offense in New York (see Correction Law § 168-a [3] [b]). In short, the sole reason put forward by the People for seeking the “sexually violent” designation was the operation of the challenged statute. People v Cromwell, 2024 NY Slip Op 03934, Fourth Dept 7-26-24

Practice Point: The Correction Law provision requiring a defendant to register as a sexually violent offender for an out-of-state conviction for a nonviolent offense is unconstitutional as applied.

 

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BECAUSE DEFENDANT’S 20-YEAR-OLD OUT-OF-STATE CONVICTION DID NOT INVOLVE A SEXUALLY VIOLENT OFFENSE, THE CORRECTION LAW WHICH REQUIRES THAT HE BE DESIGNATED A SEXUALLY VIOLENT OFFENDER IS UNCONSTITUTIONAL AS APPLIED TO HIM (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant should not have been designated a sexually violent offender based upon a 20-year-old out-of-state conviction of an offense which would not qualify as a sexually violent offense in New York:

There is no dispute that the crime of which defendant was convicted, sexual assault in violation of 18 Pa Cons Stat § 3124.1, does not include all of the essential elements of a sexually violent offense in New York enumerated in Correction Law § 168-a (3) (a), and therefore is not a sexually violent offense under the first disjunctive clause of Correction Law § 168-a (3) (b). Instead, after defendant moved to New York approximately 20 years after the sexual assault conviction was entered and the Board of Examiners of Sex Offenders determined that he was required to register as a sex offender in New York …, the People contended that County Court should designate him a sexually violent offender under the second disjunctive clause of Correction Law § 168-a (3) (b). That clause defines a sexually violent offense as including 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.” The court designated defendant a sexually violent offender under the foreign registration clause.

… [W]e agree with defendant that the foreign registration clause of Correction Law § 168-a (3) (b) is unconstitutional, as applied to him, under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. People v Zellefrow, 2024 NY Slip Op 03605, Fourth Dept 7-3-24

Practice Point: The Correction Law which requires a person convicted of a registrable offense in another state to be designated a sexually violent offender upon moving to New York is unconstitutional as applied to the defendant here, whose out-of-state conviction did not involve a sexually violent offense under New York law.​

 

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THE PUBLIC HEALTH LAW REGULATIONS CONTROLLING HOW NURSING HOMES MUST ALLOCATE THEIR INCOME AND HOW MUCH PROFIT THEY CAN MAKE WERE DEEMED CONSTITUTIONAL TO THE EXTENT THEY WERE RIPE FOR CONSTITUTIONAL REVIEW (THIRD DEPT).

The Third Department, in a comprehensive full-fledged opinion by Justice Mackey too detailed to fairly summarize here, determined the Public Health Law regulations controlling how nursing homes must allocate their income and how much profit they can make are constitutional to the extent they are ripe for constitutional review:

On November 17, 2022, the [Public Health] Commissioner adopted a regulation, 10 NYCRR 415.34, to implement the provisions of Public Health Law § 2828, including the spending mandate and the excess-revenue cap, which applied retroactively to April 1, 2022. The regulation provides:

“By January 1, 2022, residential health care facilities shall comply with the following minimum expenditures:

(1) 70[%] of revenue shall be spent on direct resident care; and

(2) 40[%] of revenue shall be spent on resident-facing staffing.

(i) All amounts spent on resident-facing staffing shall be included as a part of amounts spent on direct resident care;

(ii) 15[%] of costs associated with resident-facing staffing that are contracted out by a facility for services provided by registered professional nurses, licensed practical nurses, or certified nurse aides shall be deducted from the calculation of the amount spent on resident-facing staffing and direct resident care” … .

The regulation further provides for recoupment by the Commissioner of “excessive total operating revenue” where “the facility’s total operating revenue exceeds total operating and non-operating expenses by more than five percent of total operating revenue” … . Grand S. Point, LLC v Bassett, 2024 NY Slip Op 03364, Third Dept 6-20-24

Practice Point: The Public Health Law regulations controlling how nursing homes must allocate their income and how much profit they can make were deemed constitutional or unripe for constitutional review.

 

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ALTHOUGH THE NOTICE OF THE INTENT TO PRESENT PSYCHIATRIC EVIDENCE DEMONSTRATING DEFENDANT’S LACK OF CAPACITY TO COMMIT ARSON WAS “1400 DAYS LATE,” THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ACCEPT THE LATE NOTICE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined the trial court abused its discretion in refusing to accept late notice of the intent to present psychiatric evidence as a defense to the arson charge. The defendant had been evaluated and treated for mental illness since childhood. When a new attorney was assigned to the defense, the notice of the intent to present psychiatric evidence was served “1400 days late.” The defense sought to introduce expert testimony to demonstrate defendant did not have the capacity to commit arson at the time of the offense:

We … hold that the trial court’s application of CPL 250.10 precluding Mr. Sidbury’s [defendant’s] psychiatric defense was an abuse of discretion. We have been clear that the governing principle animating CPL 250.10 is “procedural fairness and orderliness” with the intention of “eliminating the element of surprise” for the prosecution … . The statute formulates a procedure for defendants to serve notice of their intent to present psychiatric evidence that is “prepared and presented manageably and efficiently,” such that it allows for “proper notification, adversarial examination, and preclusion when appropriate” … . * * *

Although the statute provides for service of the notice within 30 days of the defendant’s not-guilty plea, the court has discretion to permit service of a late notice “[i]n the interest of justice and for good cause shown” … . Late notice is permissible “at any time prior to the close of evidence”—including after trial has commenced  … .

The decision to permit late notice is within the discretion of the trial court … . That discretion, however, is “not absolute,” because “[e]xclusion of relevant and probative testimony as a sanction for a defendant’s failure to comply with a statutory notice requirement implicates a defendant’s constitutional right to present witnesses in [their] own defense” … . Instead, the trial court must “weigh [the defendant’s constitutional] right against the resultant prejudice to the People from the belated notice” … . People v Sidbury, 2024 NY Slip Op 03318, CtApp 6-18-24

Practice Point: Although service of notice of intent to present psychiatric evidence as a defense should be made within 30 days of the not-guilty plea, the court has the discretion to accept late notice at any time prior to the close of evidence (because the constitutional right to present a defense is at stake).

 

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DEFENDANT, PURSUANT TO CORRECTION LAW 168-A (3)(B), WAS DESIGNATED A “SEXUALLY VIOLENT OFFENDER” BASED SOLELY ON HIS OUT-OF-STATE CONVICTION OF A REGISTRABLE SEXUAL OFFENSE WHICH DID NOT INVOLVE VIOLENCE; THE CORRECTION LAW AS APPLIED TO DEFENDANT VIOLATED HIS RIGHT TO DUE PROCESS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a concurrence and a two-justice dissent, determined designating defendant a “sexually violent offender” based solely upon an out-of-state conviction of a non-violent sexual offense violated defendant’s right to due process. The concurrence argued the Correction Law statute which allows such a “sexually violent offender” designation based on an out-of-state conviction is unconstitutional on its face:

We conclude that designating defendant as sexually violent merely because he had an out-of-state sex conviction requiring out-of-state registration, regardless of whether that underlying offense is violent—as is currently required by the text of Correction Law § 168-a (3) (b)—bears no rational relationship to the legitimate governmental interest of informing the public of threats posed by sex offenders. Indeed, the animating notification purpose of SORA presupposes that the information available to the public as a consequence of a SORA registration is accurate. Where, as here, an offender is designated a sexually violent offender merely because of an out-of-state conviction requiring out-of-state registration, the public is not accurately informed of the true risk posed by the offender. We further conclude that the designation of defendant as a sexually violent offender—augmenting defendant’s SORA registration period from a term of 20 years to his entire lifetime—merely because of the location of the registrable offense does not result in “a criminal designation that rationally fits [defendant’s] conduct and public safety risk” … . People v Malloy, 2024 NY Slip Op 03264, Fourth Dept 6-14-24

Practice Point: The Correction Law (section 168-a (3)(b)) pursuant to which defendant was designated a “sexually violent offender” based solely on an out-of-state registrable offense which did not involve violence was deemed to violate defendant’s right to due process of law.

 

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DEFENDANT WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY REFUSING TO ATTEND THE TRIAL AND DIRECTING DEFENSE COUNSEL NOT TO PARTICIPATE IN THE TRIAL; A TWO-JUSTICE DISSENT CONCLUDED DEFENSE COUNSEL’S FAILURE TO PARTICIPATE CONSTITUTED INEFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed defendant’s conviction after he was tried in absentia. Defendant was properly denied a request for new counsel. Defendant then directed his attorney not to participate in the trial and defendant did not attend the trial. Defense counsel did not participate, except to make a motion for a trial order of dismissal outside the presence of the jury. The two-justice dissent would have reversed on ineffective assistance grounds, concluding that defense counsel should have participated in the trial, despite defendant’s directive:

Defendant contends that he was denied effective assistance of counsel. We reject that contention inasmuch as defendant waived the right to effective assistance of counsel by directing defense counsel not to participate in the proceedings … . * * * When the court had defendant brought into the courtroom and informed him that he had the right to be present for trial and participate in his defense, defendant again objected to the entire proceeding, reiterated that he had fired defense counsel, refused to answer the court’s questions, and renewed his request for substitute counsel. When the court responded that defendant would not receive another attorney but had the right to proceed pro se, defendant left the courtroom. Defense counsel subsequently informed the court that he intended to follow defendant’s directive not to participate in the proceedings. The trial was then held in defendant’s absence. Defense counsel was present but did not participate, except to move, outside the presence of the jury, for a trial order of dismissal.

We conclude that, under these circumstances, defendant waived his right to effective assistance of counsel … . Defendant’s “desire to prevent counsel’s participation, coupled with his adamant refusal to represent himself, translates into an intentional failure to avail himself of his constitutional right to a fair opportunity to defend against the State’s accusations” (id. [internal quotation marks omitted]), and he must therefore “accept the decision he knowingly, voluntarily and intelligently made, and the consequences of his intentional actions and choices” … . People v Lewis, 2024 NY Slip Op 03245. Fourth Dept 6-14-24

Practice Point: Defendant did not attend the trial and directed his attorney not to participate in the trial. Defense counsel did not participate. The majority held defendant had waived his right to effective assistance. A two-justice dissent argued defense counsel’s failure to participate constituted ineffective assistance and would have ordered a new trial.

 

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UNDER THE CONSTITUTIONAL ERROR STANDARD, HEARSAY STATEMENTS ADMITTED IN THIS ATTEMPTED MURDER AND FIRST DEGREE ASSAULT TRIAL CONSTITUTED HARMLESS ERROR, CRITERIA EXPLAINED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the hearsay statements allowed in evidence in the attempted murder and assault first degree trial constituted harmless error:

Before this Court, the parties primarily focus on whether the erroneous admission of testimony reflecting the daughter’s statements was harmless. Applying the standard for constitutional errors, we conclude that it was. The evidence against defendant was overwhelming, particularly as it related to the critical issue of intent … .. Properly admitted evidence demonstrated that the victim and her daughter fled the home seeking help immediately after the attack; one of them called defendant the “culprit” as he attempted to flee; defendant had to be physically subdued by a bystander until his arrest; both women told several witnesses that defendant “stabbed” the victim; the weapon used was a large, sharp knife; medical records reflect that the victim reported to hospital staff that her husband had stabbed her; and those records, as well as a treating physician’s testimony, demonstrate that the victim sustained two serious knife wounds to the neck and chest, both over two inches in length and one of which was a direct stabbing so forceful that it fractured her breastbone. These facts leave no doubt that defendant acted with the intent to cause the victim serious physical injury. For that reason, the properly admitted evidence rendered the improper testimony recounting the daughter’s description of the attack redundant and therefore harmless, as “there is no reasonable possibility that the error might have contributed to defendant’s conviction” … .

The errors in admission of statements by the 911 caller and defendant’s son were also harmless and do not warrant a new trial. Because the statements supplied information properly provided to the jury through several testifying witnesses and the victim’s medical records, there is no “significant probability . . . that the jury would have acquitted the defendant had it not been for” their admission … . People v Vargas, 2024 NY Slip Op 03200, CtApp 6-13-24

Practice Point: Here the Court of Appeals applied the constitutional error standard and found the hearsay statements admitted at trial constituted harmless error because the evidence of guilt was overwhelming.

 

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DEFENDANT SUFFICIENTLY DEMONSTRATED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN SO INFORMED; REVERSED AND REMITTED FOR A HEARING ON THE MOTION TO VACATE THE GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (THIRD DEPT).

The Third Department, reversing County Court and ordering a hearing on defendant’s motion to vacate his guilty plea on ineffective assistance grounds, determined defendant, a citizen of Haiti, sufficiently demonstrated he had never been informed of the deportation consequences of the guilty plea and he would not have pled guilty if he had been so informed:

… [D]efendant proffered a sworn affidavit wherein he averred that counsel did not inquire as to whether defendant was a citizen, never discussed with defendant his immigration status nor did he advise defendant that he could be deported as a result of his guilty plea. Defendant also asserted that, during the plea proceeding, County Court never inquired about whether he was a United States citizen, his immigration status or advised that a conviction could result in deportation. This assertion is supported by the record, which reveals no mention of citizenship or deportation at any point during defendant’s plea or sentencing … . Defendant also averred that he moved to the United States approximately 20 years ago, when he was six years old, and that his entire family resides in this country … . Furthermore, defendant asserted that he would not have pleaded guilty and would have insisted on going to trial if he had been informed that this conviction could result in deportation … . Thus, defendant sufficiently alleged that counsel failed to provide him with any information regarding deportation consequences of his plea and that defendant was prejudiced because he would not have pleaded guilty had he been advised of these consequences, such that a hearing is warranted … . Indeed, given defendant’s affidavit as well as the record of the plea proceeding, there is a genuine concern that, as defendant asserts, he was never advised of the deportation consequences of his plea. Accordingly, this matter must be remitted to County Court for a hearing on defendant’s CPL 440.10 motion. People v Philippe, 2024 NY Slip Op 03105, Third Dept 6-6-24

Practice Point: The failure to inform a non-citizen defendant of the deportation consequences of a guilty plea can constitute ineffective assistance.

Practice Point: A non-citizen defendant who shows he was not informed of the deportation consequences of the guilty plea and sufficiently demonstrates he would not have pled guilty if he had been so informed is entitled to a hearing on his motion to vacate the guilty plea.

 

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THE NONPARTY OPERATOR OF AN ANONYMOUS WEBSITE WHICH POSTED ALLEGEDLY DEFAMATORY STATEMENTS ABOUT RESPONDENT BUSINESS WAS ENTITLED TO MAINTAIN HER ANONYMITY PURSUANT TO THE FIRST AMENDMENT; HER MOTION TO QUASH SUBPOENAS AIMED AT REVEALING HER IDENTITY SHOULD HAVE BEEN GRANTED (FISRT DEPT).

The First Department, reversing Supreme Court, determined nonparty BehindMLM, the anonymous operator of a website which posts articles, was entitled to her anonymity. The respondent GSB had obtained a default judgment in Germany in a defamation action against Google (which hosts the website) and GoDaddy where the site’s domain name is registered. The defamation action was based on articles posted by BehindMLM. BehindMLM was never notified of GSB suit. GSB brought the instant action pursuant to CPLR 3102(c) to compel Google and GoDaddy to reveal BehindMLM’s identity and served subpoenas on Google and GoDaddy for the relevant documents.. After learning of the action, BehindMLM moved to quash the subpoenas:

BehindMLM posted four articles stating that various corporate entities were engaged in a “Ponzi scheme,” frauds, and scams. In 2022, one of the companies mentioned in one of those articles, petitioner GSB Gold Standard (GSB), brought two separate actions against Google in a German court … . * * *​

The issue of whether BehindMLM’s statements were defamatory was not actually litigated and determined in that action, since the German orders were issued on default … . BehindMLM was not a party to the German proceedings, was not notified of the proceedings and was not given an opportunity to litigate the matter … . * * *

We hold that when a party seeks an anonymous online speaker’s identifying information, courts must first require the party to take reasonable efforts to provide the speaker with notice and an opportunity to appear in the action or proceeding … . * * *

When a speaker asserts a First Amendment right to anonymous online speech … , a court should consider the First Amendment rights at stake, whether the party seeking disclosure has stated a showing of a prima facie defamation claim, and the balance of the equities … . This Court has stated that “we should protect against the use of subpoenas by corporations and plaintiffs with business interests to enlist the help of ISPs via court orders to silence their online critics, which threatens to stifle the free exchange of ideas” … .  * * *

… [E]ven if GSB had stated a valid claim of defamation per se by alleging that the statements were false and harmed its business … , the broad and conclusory allegations in the verified petition did not sufficiently establish the falsity of BehindMLM’s statements … . Upon our consideration of all relevant factors, including the weak evidentiary showing and BehindMLM’s asserted First Amendment right to speak anonymously on matters of public concern, we conclude that, on the record as now presented, BehindMLM is constitutionally entitled to maintain her anonymity. Matter of GSB Gold Std. Corp. AG v Google LLC, 2024 NY Slip Op 02983, First Dept 5-30-24

​Practice Point: Here the First Department protected the First Amendment rights of the nonparty anonymous operator of a website which published allegedly defamatory articles about respondent. The respondent’s subpoenas for documents which would reveal the nonparty’s identity were quashed.

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA; DEFENDANT DEMONSTRATED DEFENSE COUNSEL PROVIDED ERRONEOUS INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF THE PLEA; AND DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER HE WOULD HAVE DECIDED AGAINST PLEADING GUILTY HAD HE BEEN GIVEN ACCURATE INFORMATION ABOUT THE RISK OF DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his guilty plea on the ground his attorney provided erroneous information about the deportation consequences of the plea. In addition to showing defense counsel’s advice was wrong, defendant raised a question of fact whether it was reasonably probable he would not have pled guilty if he had been correctly advised about the risk of deportation:

… [T]rial counsel erroneously advised defendant that he “could . . . be deported” if he were to be “incarcerated for any extensive amount of time,” but, if he were sentenced to “probation,” defendant would not be deported. “These advisements were erroneous, and … defense counsel readily could have ascertained — simply from a reading of the relevant statutes — that defendant’s plea to criminal possession of a controlled substance in the third degree rendered deportation presumptively mandatory and rendered defendant ineligible for cancellation of an order of removal” … . …

… [D]efendant averred in his CPL 440.10 motion that, at the time of his plea, he had resided in the United States for over 20 years and that he “financially supported the mother of his child, as well as her two older children from a prior relationship.” Given his family circumstances and their dependency upon him, defendant averred that, had he received correct advice about pleading guilty to an aggravated felony for purposes of immigration, he “would have rejected the plea offer, proceeded to trial, or sought other alternative plea options.” These allegations “raise a question of fact as to whether it was reasonably probable that he would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea” … . People v Pinales-Harris, 2024 NY Slip Op 02844, Third Dept 5-23-24

Practice Point: If, in the papers supporting a motion to vacate the guilty plea, a defendant shows defense counsel provided erroneous information about the deportation consequences of the guilty plea, and raises a question of fact whether it is reasonably probable he would not have pled guilty had the correct information been provided, he is entitled to a hearing on the motion.

 

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