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THE PEOPLE WERE ALLOWED TO PRESENT EXPERT TESTIMONY ON CHILD PSYCHOLOGY AND CHILD ABUSE; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO PRESENT A DEFENSE WHEN THE REQUEST TO PRESENT A REBUTTAL WITNESS WAS DENIED (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant should have been allowed to present a witness to rebut the People’s expert testimony on child psychology and child abuse. Failure to allow the rebuttal witness deprived defendant of his right to a fair trial:

… Supreme Court did not err in permitting the People to call an expert witness in the field of child psychology and child sex abuse, notwithstanding any alleged delay in the People’s disclosure of the contents of the witness’s testimony, as the defendant failed to establish that he was prejudiced by the alleged delay … .

… Supreme Court improperly precluded the defendant from calling a rebuttal witness. The right to present a defense is a fundamental element of due process of law … , and, in the instant case, calling a rebuttal expert to testify was central to the defense case. … [T]here is no evidence that the People were prejudiced by the timing of the notice or that the delay was willfully motivated, inasmuch as the content of the People’s expert testimony was disclosed approximately one week prior.  People v Neustadt, 2023 NY Slip Op 05519, Second Dept 11-1-23

Practice Point: Here the denial of defendant’s request to present testimony rebutting the People’s expert denied defendant his right to present a defense (due process).

 

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THE DECLARATORY JUDGMENT ACTION ALLEGING THE COUNTY TAX MAP VERIFICATION FEES CONSTITUTED UNAUTHORIZED TAXES SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the plaintiffs’ declaratory judgment action should not have been dismissed. Plaintiffs alleged that certain fees (tax map verification fees) charged by the county’s Real Property Tax Service Agency constituted taxes which were not legislatively authorized:

… [T]he tax map verification fees were not expressly authorized by the State Legislature through the 2019 revisions to CPLR 8019 and 8021. A tax is exacted from a citizen to “defray the general costs of government unrelated to any particular benefit received by that citizen” … . “The State Constitution vests the taxing power in the state legislature and authorizes the legislature to delegate that power to local governments” ( … see NY Const, art XVI, § 1). “‘[T]he delegation of any part of [the] power [of taxation] to a subdivision of the State must be made in express terms,’ and the delegation of any form of taxation authority ‘cannot be inferred'” … .. “The legislature must describe with specificity the taxes authorized by any enabling statute. In turn, local governments can only levy and collect taxes within the expressed limitations of specific enabling legislation” … .

Here, while the revisions to CPLR 8019 and 8021 reference the County’s authority to collect tax map verification fees … , the revisions do not provide an express delegation of taxing authority, nor do they provide for a review mechanism, as is constitutionally required … . Cella v Suffolk County, 2023 NY Slip Op 05387, Second Dept 10-25-23

Practice Point: Fees imposed by a county which are not justified by the related expenses may constitute unauthorized taxes.

 

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THE REGULATIONS ALLOWING FAMILIAL DNA SEARCHES WERE VALIDLY PROMULGATED; THE REGULATIONS ALLOW DNA SEARCHES WHICH REVEAL THE IDENTITY OF FAMILY MEMBERS OF PERSONS IN THE CRIMINAL DNA DATABASE (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over an extensive three-judge dissenting opinion, determined the Commission on Forensic Sciences properly promulgated the Familial DNA Search (FDS) Regulations. The regulations allow DNA searches which may reveal the identity of relatives of a persons whose DNA is in the database. The underlying Article 78 petition was brought by two men, never convicted of a crime, whose brothers were in the DNA database as a result of a felony conviction:

There is no provision in the FDS for an identified relative to be notified and/or challenge the search before law enforcement officials may proceed with an investigation based on a familial match from the Databank. Petitioners Terrence Stevens and Benjamin Joseph are two Black men living New York who have never been convicted of a crime. Each has a brother whose genetic information has been collected and stored in the DNA Databank as the result of a felony conviction, in accordance with Databank Act requirements. Mr. Stephens and Mr. Joseph brought this CLPR article 78 proceeding against respondents … alleging … that respondents lacked statutory authority to promulgate the FDS Regulations and therefore violated the separation of powers doctrine under the New York Constitution. Respondents denied petitioners’ allegations and asserted that petitioners lacked standing to challenge the FDS Regulations. * * *

Given the clarity and specificity of the guidelines provided in the Databank Act, respondents acted within their delegated authority. The FDS Regulations are a result of “administrative rule-making,” not “legislative policy-making” … . Here, the legislature made the policy determination that New York State should have well-developed DNA testing programs to assist law enforcement, that the use of the information should be limited, and the data and results secure. Matter of Stevens v New York State Div. of Criminal Justice Servs., 2023 NY Slip Op 05351, CtApp 10-24-23

Practice Point: The regulations allowing familial DNA searches which reveal the identity of relatives of persons in the criminal DNA database are constitutional. There was an extensive three-judge dissent.

 

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NYPD’S WRITTEN INVENTORY SEARCH PROTOCOL IS CONSTITUTIONAL; HERE THE INVENTORY SEARCH OF THE TRUNK OF DEFENDANT’S VEHICLE TURNED UP A FIREARM (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over an extensive dissent, determined the New York City Police Department’s (NYPD’s) written inventory search protocol was constitutional. Defendant was arrested after a traffic stop for possession of a gravity knife. A subsequent inventory search of defendant’s vehicle turned up a firearm from the trunk:

Defendant moved to suppress the firearm, arguing that the NYPD’s inventory search protocol was unconstitutional because it gives officers too much discretion in conducting inventory searches and that the searching officers failed to create a meaningful inventory of defendant’s items. At the suppression hearing, the People introduced the NYPD’s written inventory search protocol as set forth in section 218-13 of the NYPD Patrol Guide. The protocol instructs officers to first “[s]earch the interior of the vehicle thoroughly,” “includ[ing] any area that may contain valuables.” The protocol lists 10 areas within the car that must be searched, such as the glove compartment and trunk, but does not limit the searching officers to those spaces. Second, section 218-13 directs officers to force open the “trunk, glove compartment, etc. only if it can be done with minimal damage” except in particular situations including where officers “[r]easonably suspect that the item contains weapons, explosives, hazardous materials or contraband.” Lastly, the protocol requires officers to remove the valuables from the vehicle and invoice, or “voucher,” the property on a specifically referenced invoice form. Section 218-13 instructs officers to list property of little value inside the vehicle, “within reason,” in their activity log and cross reference the property “to the invoice number covering any valuables removed.” Both officers testified that the purpose of an inventory search is, in part, to secure a defendant’s items. The arresting officer further testified that it is an officer’s duty to safeguard a defendant’s recovered items prior to vouchering the items. People v Douglas, 2023 NY Slip Op 05350, CtApp 10-24-23

Practice Point: Here the NYPD’s written inventory search protocol for vehicles was found constitutional. Defendant was arrested after a traffic stop for possession of a gravity knife. A subsequent inventory search of defendant’s vehicle turned up a firearm. There was an extensive dissenting opinion.

 

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FORENSIC EVIDENCE OF COMPLAINANT’S SEXUAL ACTIVITY SHOULD NOT HAVE BEEN EXCLUDED UNDER THE RAPE SHIELD LAW; DEFENDANT’S RIGHT TO PUT ON A DEFENSE WAS VIOLATED; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Lynch, reversing the Appellate Division, determined forensic evidence of the complainant’s sexual activity should not have been excluded pursuant to the Rape Shield Law. Under the circumstances, by excluding forensic evidence of sexual activity which did not implicate the defendant deprived defendant of the right to present a defense. The complainant alleged defendant inserted his finger in her vagina and fondled her breasts. A forensic analysis of a vaginal swab and complainant’s underwear revealed the presence of complainant’s saliva and fluids from two unidentified males:

… [T]he legislature enumerated five exceptions to CPL 60.42’s [the Rape Shield Law’s] evidentiary proscriptions. The first four exceptions “allow evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances,” whereas the fifth “is a broader ‘interest of justice’ provision vesting discretion in the trial court” (Williams, 81 NY2d at 311). “The exceptions . . . recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution’s witnesses” … .

Defendant argues that the forensic evidence was admissible under several of the exceptions set forth in CPL 60.42. We need not address every basis raised because we conclude that the trial court erred in denying admission of the evidence under CPL 60.42 (5). Under this subdivision, evidence of a victim’s sexual conduct may be admitted in evidence during a sex crime prosecution when it “is determined by the [trial] court after an offer of proof by the accused . . . to be relevant and admissible in the interests of justice” (CPL 60.42 [5]). “Offer of proof is not a term of art but its generally accepted meaning . . . is to summarize the substance or content of the evidence” … . In his motion in limine, defense counsel delineated the findings contained in the forensic reports and explained how they constituted “evidence of something other than . . . defendant having engaged in inappropriate and unlawful sexual activity with [the complainant].” This was a sufficient offer of proof under Williams (81 NY2d at 314). People v Cerda, 2023 NY Slip Op 05305, CtApp 10-19-23

Practice Point: Here the interest-of-justice exception to the Rape Shield Law applied. The majority found that the exclusion of forensic evidence of complainant’s sexual activity (which did not implicate the defendant) violated defendant’s right to put on a defense.

 

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THE MAJORITY HELD THE APPELLATE DIVISION SHOULD HAVE CONSIDERED MOTHER’S APPEAL OF FAMILY COURT’S FINDING MOTHER DID NOT HAVE STANDING TO BRING HER CUSTODY/HABEAS CORPUS PETITION STEMMING FROM THE OUT-OF-STATE FATHER’S FAILURE TO RETURN THE CHILDREN; THE MAJORITY SENT THE CASE BACK TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE STANDING ISSUE; THREE DISSENTERS ARGUED FAMILY COURT ERRED WHEN IT DISMISSED THE HABEAS CORPUS PETITION BECAUSE NO CUSTODY ORDER WAS IN PLACE (CT APP).

The Court of Appeals, reversing the Appellate Division, over a three-judge comprehensive dissent, determined the Appellate Division erred when it refused to consider mother’s appeal of the denial of her habeas corpus petition seeking the return of her children. The children visited father out-of-state and one of them was not allowed to return. The Appellate Division erred when it found it did not have subject matter jurisdiction for the appeal. The matter was sent back for consideration of mother’s standing to bring the habeas corpus petition. The dissenters argued the habeas corpus petition was erroneously dismissed by Family Court on the ground that mother did not have standing because there was no custody order in place for the children. But the majority wanted the development of a record on the standing issue:

… Family Court denied the mother’s applications both for sole custody and habeas corpus relief. As the parties who have appeared before us agree, the Appellate Division erred in dismissing the mother’s ensuing appeal for lack of subject matter jurisdiction. By dismissing the appeal upon a motion, and upon an undeveloped record, without full briefing and without providing all parties the opportunity to appear, the Appellate Division has rendered impossible meaningful appellate review of the weighty issues raised in this case. To the extent that the Appellate Division’s order on the motion to dismiss could be read, as the dissenters read it, to be a determination that the mother lacked standing to seek habeas corpus relief without an order of custody in place, the issue of standing did not impact the subject matter jurisdiction of the Appellate Division … . Regardless of whether that Court had the “power to reach the merits,” an issue on which we express no opinion, the Court did not lack the “competence to entertain” the appeal … . Therefore, we remit to the Appellate Division for an expeditious determination on the merits of the standing question presented herein and, if warranted, disposition of any other issues that the parties may raise. Matter of Celinette H.H. v Michelle R., 2023 NY Slip Op 05303, CtApp 10-19-23

Practice Point: The majority held the Appellate Division should not have refused to consider mother’s appeal on the ground she did not have standing to bring her custody/habeas corpus petition. The Appellate Division did not lack subject matter jurisdiction. The matter was sent back for a ruling on the standing question.

 

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DEFENDANT WAS NOT GIVEN NOTICE OF SOME OF THE EVIDENCE RELIED ON BY COUNTY COURT FOR THE SORA RISK ASSESSMENT; THE MATTER WAS REMANDED FOR A NEW HEARING (THIRD DEPT).

The Third Department, reversing (modifying) County Court, determined defendant was not given notice of some of the grounds County Court relied upon for an upward departure re: defendant’s SORA risk-level assessment. That constituted a violation of defendant’s right to due process:

While … defendant [was] on notice that his persistent sexually-motivated criminal conduct would be relied upon by the People as a factor for upward departure, there is no similar indication that his concurrent conviction for failure to register along with the facts underlying his juvenile delinquency adjudication would be considered … . … “[D]efendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure” on the specific bases upon which the People, and consequently County Court, would rely in considering that relief … . … [T]the matter must be remanded for a new hearing, upon proper notice to defendant of the justifications relied upon by the People specific to their request for such relief. People v Maurer, 2023 NY Slip Op 05290, Third Dept 10-19-23

Practice Point: Due process requires that a defendant be notified of all of the evidence which will be relied upon by the People and the court for a SORA risk assessment.

 

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CASE REMITTED FOR A DETERMINATION OF THE CONSTITUTIONALITY OF THE GUARANTY LAW WHICH WAS FOUND TO HAVE BARRED PLAINTIFF’S CLAIM FOR CERTAIN AMOUNTS (FIRST DEPT).

The First Department sent this case back for a determination whether guarantees at issue are constitutional:

In view of the recent decision in Melendez v City of New York (2023 WL 2746183, 2023 US Dist LEXIS 57050 [SD NY, Mar. 31, 2023, No. 20-CV-5301 (RA)] finding the guaranty law unconstitutional, we remand the constitutional question raised by the parties here so the parties can further develop the record in the trial court for the purpose of applying the Contracts Clause test for constitutionality … . Plaintiff is directed to serve notice on nonparty City of New York under CPLR 1012(b)(2) and file proof of service in order for the City to “intervene in support of its constitutionality” … .

Given the vitality of the constitutional question, we also reverse the dismissal of plaintiff’s claim for those amounts the court determined were barred by the guaranty law for a determination following the court’s resolution of the constitutional issue. 45-47-49 Eighth Ave. LLC v Conti, 2023 NY Slip Op 05180, First Dept 10-12-23

Practice Point: Supreme Court had held plaintiff’s claim to certain amounts was barred by the guaranty law. A federal court has held the guaranty law unconstitutional. This matter was sent back for a determination of the constitutional question.

 

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THE DISPUTE BETWEEN TWO RELIGIOUS ENTITIES COULD NOT BE RESOLVED ON THE BASIS OF NEUTRAL PRINCIPLES OF LAW; THEREFORE COURTS ARE PROHIBITED FROM ADJUDICATING THE MATTER BY THE FIRST AMENDMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the dispute between plaintiff church and defendant, which has some form of supervisory authority over plaintiff church, could not be adjudicated in a court pursuant to the First Amendment:

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs . . . Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” … .

We conclude that none of the relief requested by plaintiff in its complaint may be decided by a court based on neutral principles of law … . Instead, resolution of those issues would “necessarily involve an impermissible inquiry into religious doctrine or practice” … . United Church of Friendship v New York Dist. of Assemblies of God, 2023 NY Slip Op 05090, Fourth Dept 10-6-23

Practice Point: Where the resolution of a dispute between religious entities requires a court to inquire into religious doctrine or practice, the First Amendment prohibits court involvement.

 

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THE NEW YORK STATE CONSTITUTION REQUIRES THAT THE INDEPENDENT REDISTRICTING COMMISSION SUBMIT A SECOND VOTING-DISTRICT REDISTRICTING PLAN AFTER THE REJECTION OF THE FIRST (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that the Independent Redistricting Commission (IRC) was required by statute to submit a second voting-district redistricting plan after the rejection of the first. The opinion provides a detailed analysis of the constitutional, legislative and administrative measures taken to reform the manner in which voting-district maps are drawn:

The IRC had an indisputable duty under the NY Constitution to submit a second set of maps upon the rejection of its first set (see NY Const, art III, § 4 [b]). The language of NY Constitution, article III, § 4 makes clear that this duty is mandatory, not discretionary. It is undisputed that the IRC failed to perform this duty. Matter of Hoffmann v New York State Ind. Redistricting Commission, 2023 NY Slip Op 03828, Third Dept 7-13-23

Practice Point: The constitutional, statutory and regulatory requirements for the approval of a voting-district redistricting plan are explained in depth.

 

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