Constitutional Law – Page 19 – New York Appellate Digest

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.

October 6, 2023

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.

July 13, 2023

Attorneys, Constitutional Law, Criminal Law, Evidence

DEFENSE COUNSEL DID NOT OBJECT TO AN ACCOMPLICE’S TESTIMONY ABOUT THE GUILTY PLEA ENTERED BY A NON-TESTIFYING PARTICIPANT IN THE SHOOTING (DEFENDANT WAS THEREBY DEPRIVED OF THE RIGHT TO CONFRONT A WITNESS AGAINST HIM); DEFENSE COUNSEL DID NOT REQUEST THE ACCOMPLICE JURY INSTRUCTION (WHICH REQUIRES CORROBORATION OF THE ACCOMPLICE’S TESTIMONY) OR THE MISSING WITNESS JURY INSTRUCTION; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant did not receive effective assistance of counsel. An accomplice, Brenda, testified that another accomplice, Roberto, had pled guilty for his role in the shooting and Roberto’s cooperation agreement was placed in evidence with Brenda on the stand. Brenda also testified that defendant made incriminating statements after the shooting. Although the prosecution had informed defense counsel Roberto would be called as a witness, Roberto was not called. Defendant was therefore deprived of right to confront Roberto. In addition, the accomplice jury instruction was not requested or given and the missing witness jury instruction was not requested or given:

… [D]efense counsel failed to object to evidence elicited by the People pertaining to the guilty plea of Roberto, a nontestifying alleged accomplice, including the introduction into evidence of the cooperation agreement in which Roberto agreed to give “meaningful and truthful information” concerning the shooting. The admission of this evidence violated the defendant’s Sixth Amendment right to confront the witnesses against him … . * * *

… [D]efense counsel failed to request either an accomplice-in-law or accomplice-in-fact jury instruction with respect to Brenda’s testimony. Since accomplice testimony is “marked by obvious self-interest,” a defendant “‘may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense'” … . * * *

… [D]efense counsel failed to timely request a missing witness charge … . People v Alvarenga, 2023 NY Slip Op 03704, Second Dept 7-5-23

Practice Point: Defense counsel was deemed ineffective (1) for failing to assert defendant’s right to confront the witnesses against him when an accomplice testified about a non-testifying participant in the shooting, (2) for failing to request the accomplice jury instruction, and (3) in failing to request the missing witness jury instruction.

July 5, 2023

Constitutional Law, Criminal Law, Sex Offender Registration Act (SORA)

THE STATUTE PROHIBITING SEX OFFENDERS FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS AS APPLIED TO SEX OFFENDERS CONVICTED BEFORE THE STATUTE WENT INTO EFFECT DOES NOT VIOLATE THE EX POST FACTO CLAUSE; HERE PETITIONER WAS INCARCERATED PAST HIS PAROLE DATE BECAUSE HOUSING WHICH COMPLIED WITH THE SCHOOL GROUNDS LAW COULD NOT BE FOUND (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, three judges dissenting, determined the statute (Executive Law 259-c [14]) prohibiting sex offenders from being within 1000 feet of school grounds as applied to sex offenders who were convicted before the statute went into effect does not violate the Ex Post Facto Clause of the US Constitution. Here the application of the statute resulted in petitioner remaining incarcerated past his parole release date because housing which met the school-grounds requirement could not be found:

The United States Constitution’s Ex Post Facto Clause prohibits states from “retroactively alter[ing] the definition of crimes or increas[ing] the punishment for criminal acts” … . The ex post facto prohibition “applies only to penal statutes” and “where the challenged statute does not seek to impose a punishment, it does not run afoul of the Ex Post Facto Clause” … . * * *

We are unable to conclude from this record that prolonged incarceration is a common result of Executive Law § 259-c (14), rather than an idiosyncratic effect, and the Supreme Court has “expressly disapproved of evaluating the civil nature of [a statute] by reference to the effect that [statute] has on a single individual” … . Petitioner has failed to meet the heavy burden of demonstrating, by the clearest proof, that the effects of Executive Law § 259-c (14) are “so punitive . . . as to negate [the legislature’s] intention to deem it civil” … . People ex rel. Rivera v Superintendent, Woodbourne Corr. Facility, 2023 NY Slip Op 03299, CtApp 6-15-23

Practice Point: Here petitioner remained incarcerated past his parole release date because housing which complied with the school-grounds statute (prohibiting sex offenders from being within 1000 feet of school grounds) could not be found. Even though petitioner was convicted before the school-grounds statute was enacted, the majority concluded the statute does not violate the Ex Post Facto Clause. There were three dissenting judges.

June 15, 2023

Administrative Law, Constitutional Law

ELECTRONIC LOGGING DEVICES (ELD’S) WHICH KEEP TRACK OF COMMERCIAL TRUCKERS’ LOCATION, HOURS OF OPERATION AND MILES DO NOT FACILITATE UNREASONABLE SEARCHES; THE TRUCKING INDUSTRY IS HEAVILY REGULATED AND THE ELD’S AIM TO PREVENT DRIVER FATIGUE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined the electronic logging devices (ELD’s) which record the location, engine hours and mileage of commercial motor vehicles (CMV’s) do not facilitate unreasonable searches, The commercial trucking industry has been regulated for decades to prevent accidents due to drivers’ fatigue and the ELD’s contribute to that end:

Before us is a facial challenge to the constitutionality of New York regulations adopting a rule promulgated by the Federal Motor Carrier Safety Administration requiring the installation of electronic logging devices in commercial motor vehicles. We hold that the warrantless inspections authorized by the regulations fall within the administrative search exception to the warrant requirement and do not constitute unreasonable searches and seizures under article I, § 12 of the State Constitution. * * *

… [P]etitioners correctly concede that there is a long tradition of commercial trucking being subject to comprehensive regulations. Regulation of commercial trucking, including regulation of “the maximum hours of service for commercial drivers,” extends back more than eighty years both in New York and on the federal level … . Those regulations are in keeping with this State’s “vital and compelling interest in safety on the public highways” … .

CMV operators therefore have “a diminished expectation of privacy in the conduct of that business because of the degree of governmental regulation” … , and “may reasonably be deemed to have relinquished a privacy-based objection” to an “intrusion that will foreseeably occur incident” to applicable regulations … . More particularly, … commercial truck drivers have a diminished expectation of privacy in the location of their vehicles because of their participation in a pervasively regulated industry. Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 2023 NY Slip Op 03184, CtApp 6-13-23

Practice Point: Electronic Logging Devices (ELD”s) which keep track of the location, hours of operation and mileage of commercial trucks aim to prevent driver fatigue and do not facilitate unreasonable searches.

June 13, 2023

Constitutional Law, Municipal Law, Real Property Tax Law

THE CITY OF OGDENSBURG PROPERLY PASSED A LOCAL LAW REPEALING A PRIOR LOCAL LAW WHICH OPTED OUT OF THE RPTL ARTICLE 11 PROVISIONS FOR DELINQUENT REAL ESTATE TAX COLLECTION; THE COUNTY’S ARGUMENT THAT THE LOCAL LAW UNLAWFULLY SHIFTED THE BURDEN OF TAX COLLECTION TO THE COUNTY AND SCHOOL DISTRICT WAS REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined the Local Law which repealed a prior Local Law in which the City of Ogdensburg opted out of the application of RPTL Article 11 (regarding the collection of delinquent real estate taxes) was not unconstitutional. The county argued repeal of the local law unlawfully shifted the burden of delinquent tax collection to the county and the school district. That argument was rejected:

Inasmuch as the County has no powers with respect to taxation that are not “unambiguously delegated” to it by the legislature or the Constitution … and the legislature has chosen to limit a county’s ability to enter into RPTL 1150 (1) agreements by making such agreement permissive rather than mandatory, it cannot be said that the City impaired the County’s power by doing as the legislature permits it to do under RPTL article 11. Therefore, we conclude that Local Law No. 2 does not violate the statutory and constitutional protections at issue, but effectuates a power the legislature granted to cities wishing to revoke their initial opt-out from article 11. Matter of St. Lawrence County v City of Ogdensburg, 2023 NY Slip Op 02757, CtApp 5-23-23

Practice Point: A city can opt out of the RPTL Article 11 provisions re: delinquent real estate tax collection, and it can later opt back in. Here the county’s argument that the city’s opting back in unlawfully shifted the tax collection burden to the county and school district was rejected.

May 23, 2023

Constitutional Law, Foreclosure, Municipal Law, Real Property Tax Law

ALTHOUGH THERE IS MERIT TO THE DEFENDANTS’ ARGUMENT THEY WERE DEPRIVED OF THEIR PROPERTY WITHOUT JUST COMPENSATION IN THESE TAX FORECLOSURE PROCEEDINGS WHERE THEIR PROPERTIES WERE TRANSFERRED TO NEIGHBORHOOD RESTORE UNDER NYC’S THIRD PARTY TRANSFER PROGRAM, THE DEFENDANTS’ FAILURE TO ANSWER IN THE TAX FORECLOSURE ACTIONS AND THEIR FAILURE TO REDEEM WITHIN FOUR MONTHS PRECLUDED ANY RECOVERY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined the tax foreclosures on defendants’ properties were valid and the transfer of the properties under New York City’s Third Party Transfer Program (TPT program) was proper. The court noted that, under the current procedure, property worth $2 million could be lost for nonpayment of a small water bill and the owner would receive no compensation. Here the city demonstrated it fulfilled the tax-foreclosure notification requirements and defendants did not answer and did not attempt to redeem the property within the four-month redemption period:

… [T]he defendants’ motions were time-barred due to their failure to move to vacate the judgment of foreclosure or to take any action to redeem the subject properties within the four-month redemption period … . In light of the presumption of regularity created by the entry of the judgment of foreclosure against the subject properties (see Administrative Code § 11-411), which became conclusive four months after the entry of the judgment …, there is no basis to consider the defendants’ contentions that the subject properties were not distressed … . Further, this Court has held that where, as here, the defendant property owners failed to interpose a timely answer or to redeem the property during the four-month period following the entry of the judgment of foreclosure, they are not entitled to “compensation” for any “surplus money as a result of the foreclosure and transfer of the property” under the TPT program … . Thus, while we emphasize that there is potential merit to the defendants’ contentions that they were deprived of their properties without just compensation, and that the transfer of a property which was not distressed under the TPT program was improper, we are constrained to conclude that those issues are not reviewable by this Court under the circumstances presented. Matter of Tax Foreclosure Action No. 53, 2023 NY Slip Op 02711, Second Dept 5-17-23

Practice Point: The court acknowledged that the city’s transfer of defendants’ properties to Neighborhood Restore under NYC’s Third Party Transfer program may have deprived defendants of just compensation for the taking of their properties, the fact that defendants did not answer in the tax foreclosure proceedings and did not attempt to redeem the properties within the four-month redemption period precluded any recovery.

May 17, 2023

Appeals, Constitutional Law, Criminal Law

THE DEFENDANT ARGUED A 2022 US SUPREME COURT RULING FINDING NEW YORK’S FIREARM LICENSING REQUIREMENT UNCONSITUTIONAL RENDERED THE POSSESSION-OF-A-WEAPON STATUTE TO WHICH HE PLED GUILTY IN 2016 UNCONSTITUTIONAL; THE ISSUE WAS NOT PRESERVED BECAUSE IT WAS NOT RAISED IN THE TRIAL COURT IN 2016 (FIRST DEPT).

The First Department refused to consider a constitutional issue on appeal because the issue was not preserved. Defendant pled guilty in 2016. The defendant argued on appeal that a 2022 US Supreme Court ruling rendered the offense to which he pled guilty, Penal Law 265.03(3), unconstitutional. In order to preserve that issue for appeal, it must have been raised before the trial court in 2016. The US Supreme Court case, New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 [2022]), declared New York’s license requirement for carrying a loaded firearm in public unconstitutional. Defendant pled guilty to possessing a loaded weapon outside his home or business:

Defendant did not preserve his claim that Penal Law § 265.03(3) is unconstitutional in light of the United States Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v Bruen …), or his related claim that the ineligibility of persons under 21 (such as himself at the time of the crime) to apply for licenses to carry firearms violates the Second Amendment. “This [preservation] requirement is no mere formalism, but 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” … .

“[D]efendant should not be permitted to avoid the consequences of the lack of preservation” on the ground that a constitutional challenge to Penal Law § 265.03(3) would have been futile … . Here, “[a]lthough [Bruen] had not yet been decided, and trial counsel may have reasonably declined to challenge the [constitutionality of Penal Law § 265.03 (3)], defendant had the same opportunity to advocate for a change in the law as [any other] litigant” … . Defendant is essentially making the argument that an “appellant should not be penalized for his failure to anticipate the shape of things to come,” but the Court of Appeals has expressly rejected that argument … . This preservation principle applies to constitutional claims … .

As an alternative holding, we find that on the present record, defendant has failed to establish that Penal Law § 265.03(3) is unconstitutional. People v Adames, 2023 NY Slip Op 02623, Fist Dept 5-16-23

Practice Point: Even if there has been no ruling on the constitutionality of a statute at the time the offense is before the trial court, in order to preserve the constitutional issue it must be raised in the trial court. Here defendant argued a 2022 US Supreme Court ruling finding New York’s firearm licensing requirement unconstitutional rendered the possession-of-a-weapon statute to which he pled guilty in 2016 unconstitutional. The First Department held the issue was not preserved because it was not raised in the trial court in 2016.

May 16, 2023

Constitutional Law, Municipal Law

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.

May 11, 2023

Constitutional Law, Criminal Law, Evidence, Judges

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.