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THE LEGISLATION ALLOWING PUBLIC FUNDS TO BE USED TO CONSTRUCT A $1.4 BILLION STADIUM FOR THE BUFFALO BILLS IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the statutes authorizing the use of public funds to construct a stadium for the Buffalo Bills are constitutional:

… [T]he NY Constitution establishes that “[t]he money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking” (NY Const, article VII, § 8 [1]). “[T]he appropriate standard for resolving a challenge to an appropriation, whether under article VIII, § 1 or article VII, § 8 (1),” is that “an appropriation is valid where it has a predominant public purpose and any private benefit is merely incidental” … . Moreover, “it is undisputed that article VII, § 8 (1) permits the granting of public funds to public benefit corporations for a public purpose” … and expenditures for stadiums have expressly been found to have a public purpose …  Further, “[b]ecause public benefit corporations … benefit from a status separate and apart from the State, money passed to public corporations consequently cannot be subject to the article VII, § 8 (1) prohibition against gifting or loaning state money as such money is no longer in the control of the State” … . Matter of Schulz v State of New York, 2023 NY Slip Op 02575, Third Dept 5-11-23

Practice Point: Statutes allowing public funds to be used for the construction of a stadium for the Buffalo Bills are constitutional.

 

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THE DEFENDANT WAS ENTITLED TO A SIROIS HEARING ON WHETHER HE PROCURED THE VICTIM’S REFUSAL TO TESTIFY; CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the defendant was entitled to a Sirois hearing. The People argued the victim’s statement should be placed in evidence because the defendant had procured her silence at trial. But the evidence on the issue was conflicting, necessitating a hearing:

… “[D]efendant should have been afforded an opportunity to test the causal link between [the victim’s refusal to testify at trial and the jail calls], as [defendant] requested, at a separate hearing” … . Although the People contend that a hearing was not necessary because the jail calls “so overwhelming[ly]” establish that the victim’s silence was procured by defendant’s misconduct, “this conclusion . . . is not the test inasmuch as [this Court] cannot evaluate the record in its present state since no hearing was held” … . Moreover, although a defendant may waive a hearing … , that did not occur here. There is no evidence in the record that defendant agreed to forego a hearing or agreed to proceed without further inquiry. In fact, when Supreme Court ruled on the ultimate Sirois issue, rather than on whether the People had “allege[d] specific facts which demonstrate a distinct possibility that a criminal defendant has engaged in witness tampering” such that a hearing was required … , defendant’s trial counsel, the next day, prior to any opening statements, requested a hearing … . The court, however, refused this request, reiterating that it found that the People met their ultimate burden on their submissions. Given this, we find that Supreme Court erred by casting aside “the constitutionally guaranteed truth-testing devices of confrontation and cross-examination … . People v Robinson, 2023 NY Slip Op 02561, Second Dept 5-10-23

Practice Point: Where there is conflicting evidence about whether a defendant procured a witness’s refusal to testify, the judge should not rule on it without holding a hearing.

 

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THE STATUTE ALLOWING ONLY MEMBERS OF THE RELEVANT PARTY TO SUBMIT WRITE-IN BALLOTS IN A PRIMARY ELECTION IS CONSTITUTIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional:

The statute, which became effective on October 8, 2021, amended three sections of the Election Law to limit the universe of permissible write-in primary votes to enrolled members of the relevant party. Election Law § 6-164 was amended to specify that the opportunity to ballot process could be carried out on behalf of only candidates enrolled in the relevant party (see L 2021, ch 480, § 1). Section 6-166 (2) was amended to change the language required on the opportunity to ballot petition correspondingly (see L 2021, ch 480,§ 2). Finally, section 8-308 was amended to state: “A write-in ballot cast in a party primary for a candidate not enrolled in such party shall be void and not counted” (Election Law § 8-308 [4]; see L 2021, ch 480, § 3). * * *

… [T]he intended effect of the statute is to limit the universe of permissible write-in candidates in a party primary election to individuals who are members of that party. Political parties have protected associational rights, which include the right to identify their own members and to select candidates who best represent their ideals and preferences … and the “right to exclude non-members from their candidate nomination process” … . We conclude that the restrictions imposed by the statute were intended to protect those rights, and that petitioners have no associational right to involve non-members in the nomination process of their parties … .  Matter of Kowal v Mohr, 2023 NY Slip Op 02480, Fourth Dept 5-9-23

Practice Point: The statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional.

 

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THE DEPARTMENT OF HEALTH REGULATIONS PLACING A CAP ON THE NUMBER OF SERIOUSLY MENTALLY ILL PERSONS WHO CAN BE PLACED IN LARGE (AT LEAST 80-BED) ADULT HOMES DOES NOT CONSTITUTE DISCRIMINATION UNDER THE AMERICANS WITH DISABILITIES ACT (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined the cap on the number of seriously mentally ill persons who can be placed in large adult homes (at least an 80-bed capacity) did not amount to unconstitutional discrimination under the Americans with Disabilities Act (ADA):

On this record, we conclude that respondent has demonstrated that the admissions cap was implemented to benefit, rather than to discriminate against, persons with serious mental illness … .

… [R]espondent [Commissioner of Health] has demonstrated that the challenged regulations are narrowly tailored to implement the integration mandate of Title II of the ADA and that the “benefit to the [protected class from the subject regulations] . . . clearly outweigh[s] whatever burden may result to them” … . The admissions cap applies only to people with a serious mental illness — those “who have a designated diagnosis of mental illness under the Diagnostic and Statistical Manual of Mental Disorders . . . and whose severity and duration of mental illness results in substantial functional disability” (18 NYCRR 487.2 [c] … ). Accordingly, the cap is specifically tailored to the very individuals who are the subject of the integration mandate. Rather than limiting admissions to all adult homes, the regulations apply solely to a subcategory of large adult homes — those certified with at least an 80-bed capacity — where new admissions would increase the population of persons with serious mental illness over the 25% threshold. Matter of Oceanview Home for Adults, Inc. v Zucker, 2023 NY Slip Op 02365, Third Dept 5-4-23

Practice Point: The cap on the number of seriously mentally ill persons who can be placed in large adult homes does not amount to unconstitutional discrimination against persons with disabilities.

 

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THE PROVISION OF MENTAL HYGIENE LAW SECTION 10 THAT ALLOWS A COURT TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE PETITIONER, WHO HAD BEEN RELEASED TO A STRICT AND INTENSIVE SUPERVISION AND TREATEMENT (SIST) REGIMEN, IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT IS NOT UNCONSTITUTIONAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this habeas corpus proceeding, determined the “provision of Mental Hygiene Law § 10.11(d)(4) that directs the court to determine whether there is probable cause to believe that a respondent in a proceeding pursuant to Mental Hygiene Law article 10 is a dangerous sex offender requiring confinement based upon a review of the allegations in a petition for confinement and any accompanying papers does not violate that respondent’s federal or state rights to due process.” The court further determined the issue raised here might recur so the appeal was not rendered moot by the petitioner’s release “to a regimen of strict and intensive supervision and treatment (… SIST):

Mental Hygiene Law § 10.11 permits the court to revoke a regimen of SIST upon a violation of SIST conditions and sets forth the required procedures for such a revocation … . The statute provides, as relevant here, that if a parole officer has “reasonable cause to believe” that a sex offender requiring SIST has violated a condition thereof, the offender can be taken into custody for five days for an evaluation by a psychiatric examiner, and the attorney general and the Mental Hygiene Legal Service (hereinafter MHLS) are to be promptly notified … . The attorney general may then file a petition for confinement within five days after the offender is taken into custody, which petition must be served promptly on MHLS, and counsel must be appointed for the offender … . If a petition for confinement is filed, “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 [offender] is a dangerous sex offender requiring confinement” … . There is no provision permitting the offender an opportunity to be heard prior to the probable cause determination. Once the probable cause determination is made, the offender may be retained pending the conclusion of the proceeding … . “Within thirty days after a petition for confinement is filed . . . , the court shall conduct a hearing” to make a final determination, but the failure to commence the hearing within that time period does not result in dismissal of the petition or “affect the validity of the hearing or the determination” … . People ex rel. Neville v Toulon, 2023 NY Slip Op 02015, Second Dept 4-19-23

Practice Point; The provision of Mental Hygiene Law section 10 that allows a court to determine whether there is probable cause to believe petitioner, who had been released to a SIST regimen, is a dangerous sex offender requiring confinement is not unconstitutional.

Practice Point: Although at the time of this appeal in this habeas corpus proceeding petitioner had been released to a SIST regimen, the issue is likely to recur so the “exception to the mootness doctrine” doctrine was invoked.

 

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WHEN DEFENDANT PLED GUILTY IN 2002 HE WAS NOT INFORMED OF THE PERIOD OF POST RELEASE SUPERVISION (PRS) AND HE DID NOT MOVE TO WITHDRAW THE PLEA IN 2010 WHEN PRS WAS ADDED TO HIS SENTENCE; DEFENDANT DID NOT WAIVE HIS RIGHT TO CONTEST THE CONSTITUTIONALITY OF THE 2002 CONVICTION RE: A PERSISTENT FELONY OFFENDER DESIGNATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant should have been allowed to contest the constitutionality of his 2002 conviction because he was not informed of the period of post release supervision (PRS) before he pled guilty. Defendant’s failure to move to withdraw the 2002 plea when he was resentenced in 2010 to add PRS to his sentence did not waive his right to claim prejudice in a challenge to the constitutionality of a predicate felony:

At the persistent violent felony offender proceeding in this case, defendant claimed that he would have gone to trial in the 2002 case had he known that PRS would ultimately be a consequence of his plea … . The sentencing court conducted a hearing on this claim, which included defendant’s testimony. After the hearing, the court expressly declined to rule on this claim of prejudice. Instead, the court ruled that defendant was barred from making such a challenge because he declined an opportunity to withdraw his 2002 plea when he was resentenced in 2010. However, that opportunity, offered when defendant had only weeks left to serve on the 8½ year sentence imposed in 2002, would not have provided a remedy for the constitutional defect that defendant is claiming, which is that he would not have pleaded guilty in 2002 had he known of the ultimate PRS component of his sentence. Accordingly, we find that defendant’s 2010 failure to withdraw the 2002 plea did not waive his right to claim prejudice in the context of a challenge to the constitutionality of a predicate felony, and we remand for a ruling on that claim. People v Graham, 2023 NY Slip Op 01852, First Dept 4-6-23

Practice Point: Defendant was not informed of the period of post release supervision (PRS) when he pled guilty in 2002 and did not move to withdraw his plea when PRS was added in 2010. Defendant did not waive his right to attack the constitutionality of the 2002 conviction in this persistent felony offender proceeding.

 

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FAMILY COURT PROPERLY PROHIBITED FATHER FROM POSTING BLOGS DISPARAGING THE CHILD’S RELATIVES ON SOCIAL MEDIA, BUT THE RESTRICTIONS WERE TOO BROAD IN THAT THEY WENT BEYOND THE NEEDS OF THE CASE (SECOND DEPT).

The Second Department determined Family Court had properly prohibited father from posting blogs disparaging the child’s relatives on social media, but that the restrictions on future speech should have been more narrowly tailored to the needs of the case:

“A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression” … . A party seeking to impose such a restraint bears a “heavy burden of demonstrating justification for its imposition” … . Such party must demonstrate that the speech sought to be restrained is “‘likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest'” … . An order imposing a prior restraint on speech “must be tailored as precisely as possible to the exact needs of the case” … .

Here, that portion of the order which directed the father to erase, deactivate, and delete “any existing blogs and likenesses” was “not tailored as precisely as possible to the exact needs of the case” … . Specifically, this restriction required the father to delete “any existing blogs and likenesses,” regardless of whether the blogs or likenesses relate to the child, the mother, the mother’s family, or the instant proceedings…. . Matter of Walsh v Russell, 2023 NY Slip Op 01522, Second Dept 3-22-23

Practice Point: As long as the restrictions on future speech relate to the family court case the constitution is not violated. Here father could be prohibited from posting blogs disparaging the child’s relatives and likenesses of the child. The order to delete past posts was also proper. But the restrictions on future speech were too broad in that they went beyond the needs of the case.

 

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INTERSTATE SOVEREIGN IMMUNITY IS AN ISSUE WHICH MUST BE RAISED BEFORE THE TRIAL COURT TO BE PRESERVED FOR APPEAL TO THE COURT OF APPEALS; HERE A NEW JERSEY TRANSIT BUS COLLIDED WITH A CAR DRIVEN BY A NEW YORK RESIDENT IN THE LINCOLN TUNNEL AND THE TRIAL WAS HELD IN NEW YORK; ALTHOUGH THE INTERSTATE SOVEREIGN IMMUNITY DEFENSE WAS VALIDATED BY THE US SUPREME COURT IN 2019, THE ISSUE WAS NOT RAISED BEFORE THE TRIAL COURT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a two-judge dissenting opinion, determined the sovereign immunity defense raised for the first time on appeal by New Jersey in this traffic accident case was not preserved for appeal to the Court of Appeals. The accident happened in the Lincoln Tunnel and involved the New York resident plaintiff and a bus owned by the defendant New Jersey Transit Corporation. New Jersey argued that the US Supreme Court had changed the law in 2019, allowing a state to preclude suit in another state absent consent thereby presenting a constitutional issue not subject to the preservation requirement. The Court of Appeals rejected that argument:

The question before us is whether we have power to hear this appeal under NY Constitution article VI, § 3 and CPLR 5601 (b) (1). To answer this threshold issue, we must consider the jurisdictional nature of interstate sovereign immunity to ascertain whether defendants’ sovereign immunity defense is exempt from our general preservation rules. We conclude that a state must preserve its interstate sovereign immunity defense by raising it before the trial court, and no exception to the general preservation rule applies. Because defendants asserted their sovereign immunity defense for the first time on appeal after the United States Supreme Court decided Franchise Tax Bd. of Cal. v Hyatt (587 US &mdash, 139 S Ct 1485 [2019] [hereinafter Hyatt III]), the argument is unpreserved in this case and there is no directly involved constitutional question supporting this appeal as of right. The appeal should therefore be dismissed. Henry v New Jersey Tr. Corp., 2023 NY Slip Op 01466, CtApp 3-21-23

Practice Point: Interstate sovereign immunity means one state cannot be sued in the courts of another state absent consent. That form of sovereign immunity was validated by the US Supreme Court in 2019. The issue, however, must be preserved by raising it in the trial court before the Court of Appeals will consider it.

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION BASED UPON AN APPELLATE DECISION WHICH CAME OUT AFTER HER APPEAL BUT BEFORE SHE APPLIED FOR PERMISSION TO APPEAL TO THE COURT OF APPEALS; THE COURT OF APPEALS DECISION WHICH HELD THE EXECUTIVE LAW ALLOWING DEFENDANT TO BE PROSECUTED BY THE “JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS” UNCONSTITUTIONAL SHOULD NOT BE APPLIED RETROACTIVELY (THIRD DEPT).

​The Third Department, reversing Supreme Court, over a two-justice concurrence, determined defendant was entitled to a hearing on her motion to vacate her conviction based on an appellate decision which came out after her appeal but before she applied for permission to appeal to the Court of Appeals. In addition, the Third Department held the Court of Appeals decision which found the statute (Executive Law § 552 (2)) authorizing her prosecution by the “Justice Center for the Protection of People with Special Needs” unconstitutional should not be applied retroactively:

Under the unique circumstances of this case, where the case defendant relies upon — Hodgdon [175 AD3d 65]— had not yet been decided at the time that her direct appeal was perfected, we find that her failure to challenge whether the Justice Center had permission to prosecute her and whether the District Attorney maintained responsibility of the prosecution was justified … . Therefore, County Court abused its discretion in concluding that it was “bound” to deny defendant’s motion under CPL 440.10 (2) (c), without a hearing, on the ground that defendant unjustifiably failed to raise the Hodgdon defense on direct appeal. … [W]e remit the matter to County Court for a hearing pursuant to CPL 440.30 (5). …

Defendant contends … she should be entitled to the benefit of the decisions in Hodgdon and People v Viviani (36 NY3d 564 [2021]), which found that Executive Law § 552 was unconstitutional to the extent that it empowered the Justice Center with concurrent prosecutorial authority … . * * *

… [T]he holding in Viviani does not go to the heart of a reliable determination of guilt or innocence … . * * *

… [D]efendant is not entitled to have the new constitutional rule articulated by Viviani applied retroactively to her matter … . People v Rice, 2023 NY Slip Op 01211, Third Dept 3-9-23

Practice Point: Defendant should have been granted a hearing on her motion to vacate her conviction based on an appellate decision which came out after defendant’s appeal but before she applied for permission to appeal to the court of appeals.

Practice Point: The Court of Appeals decision which declared the statute under which defendant was prosecuted was not applied retroactively because it did not go to the hear of a reliable determination of guilt or innocence.

 

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HERE IT WAS REVERSIBLE ERROR TO PLACE THE DEFENDANT IN HANDCUFFS, WITHOUT EXPLANATION, BEFORE THE JURY RETURNED TO ANNOUNCE THE VERDICT; AT THAT POINT THE DEFENDANT IS CONSIDERED INNOCENT AND RESTRAINING THE DEFENDANT WITHOUT EXPLANATION IS CONSTITUTIONALLY PROHIBITED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the defendant should not have been handcuffed when the jury returned to announce the verdict: At that point the defendant is considered innocent and the defendant may be prejudiced if the jury is polled. Here defense counsel expressly objected to the handcuffs on those grounds:

… [T]he reading of the verdict is an integral part of the guilt-determination phase. … “[A] verdict reported by the jury is not final unless properly recorded and accepted by the court” … . Indeed, in accordance with CPL 310.80, the trial court must order the jury to resume deliberations when polling elicits a negative answer from one or more jurors. As a consequence, until the jury returns to the courtroom, publicly announces the verdict and, if polled, confirms the verdict, there is no finding of guilt, defendant is still presumed innocent, and the constitutional prohibition on restraining a defendant without explanation remains in full force. People v Sanders, 2023 NY Slip Op 00692, CtApp 2-9-23

Practice Point: Restraining a defendant during the guilt-determination phase of the trial in unconstitutional unless adequately explained. A defendant is considered innocent until the verdict is announced and the jury is polled. In this case it was deemed reversible error to place the defendant in handcuffs, without explanation, over defense counsel’s objection, before the jury returned with the verdict.

 

 

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