You are here: / Constitutional Law
, ,

WHERE, AS HERE, THE SORA COURT EXPRESSLY FINDS THERE WAS NO SEXUAL CONDUCT OR MOTIVE UNDERLYING THE UNLAWFUL IMPRISONMENT OF A CHILD, THE REQUIREMENT THAT DEFENDANT BE DESIGNATED A SEX OFFENDER VIOLATES DEFENDANT’S DUE PROCESS RIGHTS (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined requiring defendant to register as a sex offender based upon an nonsexual unlawful imprisonment of a child violated defendant’s right to due process of law:

Defendant stole money at gunpoint from his aunt in the presence of his 10-year-old cousin for which he pleaded guilty to, inter alia, the unlawful imprisonment of the child. For this crime, New York requires that he register as a sex offender and comply with the Sex Offender Registration Act (SORA). It is undisputed that the crime was non-sexual and that the SORA court found that defendant is not a sex offender and poses no sexual threat. Nevertheless, the courts below felt constrained by People v Knox (12 NY3d 60 [2009]) to impose SORA requirements. Defendant contends that the holdings in Knox and its companion cases are distinguishable and do not control his as-applied challenge. We agree and conclude that requiring defendant to register violates his due process rights and does nothing to further the legislative purpose of SORA to protect the public from actual sex offenders. * * *

… [T]he core holding and reasoning in Knox does not control here where defendant’s criminal behavior and his lack of future risk of sexual harm to children distinguish him from the Knox defendants. The Knox Court’s conclusion that designating those three defendants as sex offenders and mandating their SORA registration was rationally related to the government’s interest in protecting children from sexual assault lacks force here, where defendant’s offense belies any such threat. Where a SORA court expressly finds that there was no sexual conduct or motive and no risk of future sexual offense, application of the sex offender label cannot be justified on the ground that a defendant may pose a risk of future sexual misconduct, and there is no further administrative burden in reaching that conclusion. Applying SORA to defendant violates his due process rights by impinging on his liberty interest to be free of the improper designation and registration as a “sex offender.”  People v Brown, 2023 NY Slip Op 05973, CtApp 11-21-23

Practice Point: Here the SORA court found there was no sexual conduct or motive underlying the unlawful imprisonment of the child. Under that circumstance, to designate the defendant a sex offender violates his right to due process of law.

 

, , ,

THE MAJORITY REJECTED THE ARGUMENT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A CONFRONTATION-CLAUSE CHALLENGE TO DNA EVIDENCE OFFERED BY A WITNESS WHO WAS NOT INVOLVED IN THE ANALYSIS OF THE DNA; STRONG, COMPREHENSIVE DISSENT (CT APP).

The Court of Appeals, over an extensive dissenting opinion, rejected defendant’s ineffective-assistance claim based upon defense counsel’s failure to raise a Confrontation Clause challenge to the admission of DNA evidence:

Defendant asserts that trial counsel rendered ineffective assistance by failing to argue that the admission into evidence of DNA reports through the testimony of an analyst who did not perform, witness or supervise the testing, or independently analyze the raw data, violated his constitutional right to confrontation. This argument is without merit. “Even assuming that counsel failed to assert a meritorious Confrontation Clause challenge, the alleged omission does not ‘involve an issue that [was] so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it'” … . Nor, on this record, has defendant demonstrated that the alleged error was not a matter of legitimate trial strategy … .

From the dissent:

At trial, the prosecution admitted two reports containing DNA analyses through a criminalist who testified, based on his review of the file prepared by another criminalist, that defendant’s DNA matched DNA on a screwdriver recovered from the scene of the break-in. This evidence was therefore admitted through a surrogate witness in violation of the Confrontation Clause … . The question on this appeal is whether defense counsel was ineffective for failing to raise a Confrontation Clause objection to this evidence’s admission. At the time of defendant’s trial, the law was sufficiently settled to support such an objection. Indeed, counsel recognized that the basis for the testifying criminalist’s conclusions was vulnerable to attack, as he asked the jury to reject those conclusions on the ground that the criminalist did not conduct the DNA testing. Given that the prosecution’s entire case rested upon this DNA evidence, counsel’s failure to challenge this evidence on Confrontation Clause grounds cannot be explained as a reasonable strategy. People v Espinosa, 2023 NY Slip Op 05971, CtApp 11-21-23

Practice Point: The majority concluded defense counsel’s failure to raise a confrontation-clause challenge to DNA evidence presented by a witness who was not involved in the DNA analysis did not constitute ineffective assistance. There was a strong, comprehensive dissent.

 

, , , ,

DEFENDANT’S CHALLENGES TO THE INVENTORY SEARCH AND THE ADMISSION OF CERTAIN TESTIMONY HE DEEMED PREJUDICIAL, AND HIS CONSTITUTIONAL CHALLENGE TO NEW YORK’S WEAPONS-POSSESSION REGIME REJECTED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissent, rejected defendant’s challenges to the inventory search and to purported prejudicial testimony allowed by the trial judge. Defendant’s constitutional challenge to New York’s weapons-possession regime rejected as unpreserved:

Defendant Carlos L. David challenges his conviction for two counts of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [3]) on several grounds. He argues that the police recovered the handguns that gave rise to his conviction during an invalid inventory search, and that Supreme Court improperly allowed prejudicial testimony at his trial. Neither argument provides grounds for reversal. David additionally argues that Penal Law § 265.03 (3) is facially unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). This argument is unpreserved, and for the reasons set forth below, we do not reach it. People v David, 2023 NY Slip Op 05970, CtApp 11-21-23

Practice Point: The constitutional challenges to New York’s weapons-possession regime rejected as unpreserved.

 

, , ,

DEFENDANT’S CHALLENGES TO RESTRICTIONS ON VOIR DIRE, HIS ARGUMENT A PRISON SENTENCE DURING COVID VIOLATED THE EIGHTH AMENDMENT, AND HIS CONSTITUTIONAL CHALLENGES TO NEW YORK’S WEAPONS-POSSESSION REGIME, REJECTED; THE DISSENT ARGUED THE PRESUMPTION OF AN INTENT TO USE AN UNLICENSED WEAPON IS UNCONSTITUTIONAL AND VOIR DIRE QUESTIONS RELATED TO GUN CONTROL AND JUSTIFICATION SHOULD HAVE BEEN ALLOWED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissent, rejected defendant’s challenges to his conviction:

Defendant George Garcia argues that his conviction for two counts of criminal possession of a weapon in the second degree … should be reversed because the trial court impermissibly limited questioning during voir dire. He also argues that his sentence—the statutory minimum term of 3½ years in prison—violates the Eighth Amendment given his risk of serious illness or death from COVID-19, and that the Appellate Division had the power to reduce his sentence below the statutory minimum. None of these contentions provides grounds for reversal. Garcia further argues for the first time in this Court that the statutory provisions under which he was convicted are unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). These arguments are unpreserved, and for the reasons set forth in People v Cabrera (decided today), we do not reach them. * * *

From the dissent:

The presumption in Penal Law § 265.03 (1) (b) that unlicensed possession is evidence of intent to use the weapon unlawfully is unconstitutional and therefore defendant’s conviction on this count should be reversed and the count dismissed. Additionally, the court abused its discretion and prejudiced defendant by limiting defendant’s voir dire questions related to gun control and justification. Therefore, his conviction on the single other remaining charge should be reversed and a new trial ordered. People v Garcia, 2023 NY Slip Op 05969, CtApp 11-21-23

Practice Point: Constitutional arguments attacking New York’s weapons-possession regime were not preserved.

Practice Point: The Eighth Amendment challenge to a prison sentence during COVID rejected.

Practice Point: Challenges to restrictions on voir dire about gun control and justification rejected.

 

, , ,

UNWARNED STATEMENTS MADE WHEN THE POLICE APPROACHED DEFENDANT GETTING OUT OF HIS CAR AND HANDCUFFED HIM SHOULD HAVE BEEN SUPPRESSED; THE SUBSEQUENT CONSENT TO SEARCH, MADE AFTER MIRANDA WARNINGS, WAS NOT TAINTED BY THE UNWARNED CUSTODIAL QUESTIONING; DEFENDANT’S CONSTITUIONAL CHALLENGES TO NEW YORK’S GUN LICENSING REGIME WERE NOT PRESERVED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a two-judge dissent, reversing (modifying) the Appellate Division, determined defendant was in custody when the police approached him after defendant got out of his car and handcuffed him. Statements made at that time about the presence of weapons in the car should have been suppressed. However defendant’s subsequent consent to search the car, given an hour and a half after the officers initially approached defendant and after the Miranda warnings, was not tainted by the initial custodial questioning. The dissent argued the consent to search was in fact tainted. The court rejected defendant’s constitutional arguments attacking the validity of New York’s gun-licensing regime as unpreserved:

Preservation of a constitutional challenge, in particular, “ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established beyond a reasonable doubt” … . For these reasons, we have carefully guarded the preservation rule against “erosion” … . * * *

… [A] reasonable innocent person in Cabrera’s {defendant’s] position could not have felt free to leave when three law enforcement officers approached him at night, on a residential street, and handcuffed him before questioning him about the firearms in his vehicle. The level to which the police restricted Cabrera’s movement was of a degree associated with a formal arrest. Nor does the record suggest that the defendant had any reason to believe that he would be handcuffed only for a limited duration. … [T]here is no record support for the conclusion of the courts below that Cabrera was not in custody for Miranda purposes. On appeal, the People have conceded that the defendant was subject to interrogation and that they did not argue below that the public safety exception applied. Custodial status is therefore dispositive; in the absence of warnings, his statements should have been suppressed. People v Cabrera, 2023 NY Slip Op 05968, CtApp 11-21-23

Practice Point: Statements made after police approached defendant on the street and handcuffed him should have been suppressed, but the unwarned custodial questioning did not taint a subsequent consent to search given after Miranda warnings.

Practice Point: Constitutional arguments, here attacking New York’s gun-licensing regime, must be preserved before the Court of Appeals can address them.

 

,

THE ROADBLOCK VEHICLE-STOP WAS VALID; THE SEARCH BASED UPON AN ODOR OF MARIJUANA WOULD NOT HAVE BEEN VALID UNDER THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) BUT THE COURT REFUSED TO APPLY THE MRTA RETROACTIVELY; ONE DISSENT ARGUED DEFENDANT’S CHALLENGE TO PROHIBITING FELONS FROM OBTAINING GUN LICENSES HAD MERIT; THE OTHER DISSENT ARGUED THE ROADBLOCK PROCEDURE WAS NOT DEMONSTRATED TO BE CONSTITUTIONAL (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a single-judge dissent and a separate two-judge dissent, affirmed defendant’s conviction, finding the roadblock vehicle-stop procedure was valid and the search based upon an odor of marijuana was valid. The search would not have been valid after the Mariihuana Regulation and Taxation Act (MRTA) was enacted in 2021. The court refused to apply the MRTA retroactively. Judge Rivera’s dissenting opinion, argued defendant’s argument against the ban on felons obtaining gun licenses had merit and the matter should have been sent back to create a record. Judge Halligan’s dissent argued the constitutionality of the roadblock was not demonstrated. People v Pastrana, 2023 NY Slip Op 05966, CtApp 11-21-23

Practice Point: The Marihuana Regulation and Taxation Act (MRTA), which under certain circumstances (which were present in this case) prohibits a search based upon the odor of marijuana, does not apply retroactively.

 

, ,

THE COURT OF APPEALS, OVERRULING PRECEDENT, DETERMINED THE AUTOPSY REPORTS WERE “TESTIMONIAL” IN NATURE AND SHOULD NOT HAVE BEEN ADMITTED THROUGH AN EXPERT WHO DID NOT PARTICIPATE IN THE AUTOPSIES; ADMISSION OF THE REPORTS AND THE EXPERT’S TESTIMONY VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing (modifying) the Appellate Division, determined the admission of two autopsy reports through an expert witness who did not perform the autopsies, as well as the witness’s testimony, violated defendant’s right to confront the witnesses against him. The Court of Appeals overruled its decision in Frycinet (11 NY3d at 39) which concluded autopsy reports were not “testimonial” and therefore did not implicate the Confrontation Clause. The erroneous admission of the evidence here, however, was deemed harmless by both the Appellate Division and the Court of Appeals:

Pursuant to [the] Confrontation Clause, a witness’s out-of-court “testimonial” statement may only be admitted for its truth where the witness appears at trial or, if the witness is unavailable for trial, where the defendant has had a prior opportunity to cross-examine that witness (Crawford v Washington, 541 US 36, 68 [2004]). …

This Court had occasion to consider the impact of Crawford and its progeny on the admission of autopsy reports in Freycinet, where it held that a redacted autopsy report was not testimonial for purposes of the Confrontation Clause (11 NY3d at 39). In reaching this conclusion, the Court evaluated four purported “indicia of testimoniality”: (1) “the extent to which the entity conducting the procedure is an arm of law enforcement”; (2) “whether the contents of the report are a contemporaneous record of objective facts”; (3) “whether a pro-law-enforcement bias is likely to influence the contents of the report”; and (4) “whether the report’s contents are directly accusatory in the sense that they explicitly link the defendant to the crime” … . All four factors, the Court concluded, weighed in the People’s favor and thus, the autopsy report at issue was not testimonial … . * * *

We now hold that Freycinet should no longer be followed because it is inconsistent with the demands of the Confrontation Clause as articulated more recently by the Supreme Court.  * * *

… [I]t is the People’s obligation to establish that their testifying experts, who did not perform or observe the relevant autopsy, reached their conclusions themselves based upon a review of the proper materials rather than the conclusions of the performing examiner. People v Ortega, 2023 NY Slip Op 05956, CtApp 11-21-23

Practice Point: Autopsy reports are testimonial in nature and must be admitted in evidence through an expert who participated in the autopsies. The erroneous admission of the testimonial evidence was deemed harmless here, however.

 

, , ,

​ THE NEW YORK CITY ADMINSTRATIVE CODE PROVISION CRIMINALIZING THE USE OF CERTAIN RESTRAINTS WHICH RESTRICT AIR AND BLOOD FLOW IS VALID (CT APP). ​

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Garcia, determined the New York City Administrative Code provision which criminalizes the use of restraints which restrict air or blood flow is valid:

We are asked to determine whether section 10-181 of the Administrative Code of the City of New York, which makes criminal the use of certain restraints by police officers during an arrest, violates the New York Constitution on either preemption or due process grounds. Because section 10-181 does not conflict with state law or regulate in a field in which the state has expressly or impliedly precluded local legislation, it is a permissible exercise of local lawmaking authority. The language of the section also provides fair notice of the conduct prohibited and is sufficiently definite to avoid arbitrary or discriminatory enforcement and is therefore not void for vagueness.

In July 2020, New York City Administrative Code § 10-181 became law, making it a misdemeanor offense for any “person” to “restrain an individual in a manner that restricts the flow of air or blood by compressing the windpipe or the carotid arteries on each side of the neck, or sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm, in the course of effecting or attempting to effect an arrest” (Administrative Code of City of NY § 10-181 [a], [b]).

… [T]he enactment of section 10-181 was spurred, in large part, by the widely publicized deaths of Eric Garner and George Floyd following the use of force by police officers during their arrests … . Police Benevolent Assn. of the City of New York, Inc. v City of New York, 2023 NY Slip Op 05960, CtApp 11-21-23

Practice Point: A NYC Administrative Code provision criminalizing restraints which restrict blood or air flow is valid and enforceable.

 

, ,

TO COMPLY WITH THE CONFRONTATION CLAUSE, THE ANALYST WHO TESTIFIES ABOUT A DNA PROFILE MUST HAVE PARTICIPATED IN THE FINAL STAGE OF THE DNA ANALYSIS OR MUST HAVE CONDUCTED AN INDEPENDENT ANALYSIS USING ONLY THE RAW DATA; THE WITNESS HERE DID NOT MEET THAT CRITERIA (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the People did not demonstrate the witness through whom the DNA evidence was admitted had the necessary involvement in the DNA analysis:

We have held that “a single analyst” may testify so long as it is “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others” … . Accordingly, testimony from an analyst is sufficient where the witness has engaged in ” ‘the final-level DNA analysis, reviewed the results of the preliminary evidence processing conducted by colleagues, produced the relevant DNA profiles, and expressed her expert opinion’ ” as to the DNA match … . …

… [T]he testifying analyst must have either participated in or directly supervised this “final” step that generates the DNA profile, or must conduct an “independent analysis” of the data used to do so in a manner that enables replication of the determinations made at that stage in order to verify the profile …. The record here fails to establish that the testifying analyst had the requisite involvement with either of the DNA profiles. People v Jordan, 2023 NY Slip Op 05957, CtApp 11-21-23

Practice Point: Here the People did not demonstrate the witness testifying about defendant’s DNA profile participated in the final stage of the DNA analysis or conducted an independent analysis using only the raw data. Therefore the analysist’s testimony violated the Confrontation Clause.

 

, , ,

SUPREME COURT SHOULD NOT HAVE BASED AN UPWARD DEPARTURE IN THIS SORA RISK-ASSESSMENT PROCEEDING ON GROUNDS NOT RAISED BY THE PEOPLE WHERE THE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO CONTEST THOSE GROUNDS (SECOND DEPT).

The Second Department, reversing the SORA risk level assessment, determined defendant should have been given the opportunity to contest the grounds for an upward department not raised by the People:

A “SORA court deprive[s a] defendant of those basic procedural guarantees when it upwardly depart[s] from the presumptive risk level without affording [the] defendant notice or an opportunity to contest the basis for the departure” … .

Here, the Supreme Court erred in basing its decision to depart from the presumptive risk level, in part, upon grounds that were not raised by the People and of which the defendant had no notice or an opportunity to contest ,,, , People v Cutting, 2023 NY Slip Op 05524, Second Dept 11-1-23

Practice Point: A SORA risk-level assessment cannot be based on grounds of which the defendant was not given notice or the opportunity to contest.

 

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy