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THE POLICE ASKED FOR DEFENDANT’S NAME AND DATE OF BIRTH; HE PROVIDED A FALSE NAME; HE PROVIDED HIS REAL NAME ONLY AFTER HE WAS WARNED OF THE CONSEQUENCES OF PROVIDING A FALSE NAME AND DETAINED; THE POLICE QUESTIONING DID NOT TRIGGER THE NEED FOR THE MIRANDA WARNINGS BECAUSE THE POLICE WERE SEEKING ONLY “PEDIGREE” INFORMATION; THERE WAS A TWO-JUSTICE DISSENT (FOURTH DEPT).

he Fourth Department, affirming the conviction, determined there was no Miranda violation because the police asked only pedigree questions. The two dissenters disagreed:

… [T]he police officer, accompanied by two other members of the police department, responded to a residence after receiving a complaint that there were unwanted guests there. Upon their arrival, the complainant reported to the police that there were two unwanted guests in the residence: a female guest identified by name and a male guest supposedly named “Rodney.” The police identified the female guest by name and she agreed to leave without argument.

The police located the male guest—later identified as defendant—in the closet of a back bedroom underneath some clothes and other items. The police asked defendant to identify himself by name and date of birth. Defendant provided the police with the false name “Rodney Miller” and a purported date of birth. The police gave defendant multiple warnings that it was illegal to lie to them about his name, but defendant continued to provide the false name. The officer testified that defendant was not free to leave during the interaction until the police identified him. The officer explained, among other things, that the police did not provide defendant with Miranda warnings prior to asking for his name and date of birth because they were merely attempting to obtain defendant’s pedigree information as a routine matter for any such encounter. The officer further testified that the police then informed defendant that he was going to be detained and, upon being detained, defendant provided his real name. Thereafter, the police ultimately determined that there was an order of protection in place against defendant and in favor of the female guest. The police then arrested defendant for violating the order of protection and for providing false pedigree information. * * *

… [W]e conclude that the court properly determined that the pedigree exception applied and thus properly denied that part of defendant’s omnibus motion seeking to suppress his statements to the police. The officer testified at the suppression hearing that the purpose of asking pedigree questions of both the female guest and defendant was “[t]o identify who they were and advise them they were no longer welcome there,” and that requesting general information such as names and dates of birth was routine for any such encounter. The officer’s testimony thus established the administrative purpose for seeking pedigree information during an encounter of that nature: the police must know with whom they are speaking in a residence … . The People “thereby established the threshold basis for the pedigree exception to apply, i.e., the questions were reasonably related to the police’s administrative concerns” … . * * *

As the Court of Appeals has cautioned, “[a]lthough there may be some circumstances where asking a suspect for core identifying information such as name, date of birth, and address will not qualify for the pedigree exception to Miranda, those circumstances will be rare” (id. at 416). People v Milton, 2026 NY Slip Op 04584, Fourth Dept 7-24-26

Practice Point; The police may ask for a person’s name and date of birth without providing Miranda warnings, even when the police are aware the person has provided a false name.

 

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PLAINTIFFS, RESIDENTS OF EAST BUFFALO, STATED CAUSES OF ACTION AGAINST THE STATE FOR VIOLATION OF THE PUBLIC TRUST DOCTRINE AND VIOLATION OF THE GREEN AMENDMENT TO THE NEW YORK CONSTITUTION BY THE CONSTRUCTION OF AN EXPRESSWAY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Nowak, over an extensive dissent, determined the complaint alleging the State, in constructing an expressway, violated the public trust doctrine and the Green Amendment, should not have been dismissed:

Plaintiffs are individual residents of East Buffalo who contend that they suffered adverse health consequences due to traffic on a nearby expressway (portions of New York State Routes 33 and 198) and an unincorporated association of people who live or work near the expressway. They commenced this action alleging that defendants: (1) violated the public trust doctrine by alienating parkland comprising the former Humboldt Parkway for the construction of the expressway; and (2) are violating the Green Amendment to the New York State Constitution (NY Const, art 1, § 19) by continuing to maintain and operate the expressway. * * *

Having expressly granted authority to construct arterial highways within parks in other cities and having declined to do so with respect to Humboldt Parkway, it cannot be said as a matter of law that the legislature “plainly conferred” the alienation of Humboldt Parkway … . * * *

The Green Amendment to the New York State Constitution states that “[e]ach person shall have a right to clean air and water, and a healthful environment” (NY Const, art I, § 19 …). Plaintiffs specifically allege in the amended complaint that the Green Amendment is self-executing, and defendants did not dispute that contention below. East Side Parkways Coalition v New York State Dept. of Transp., 2026 NY Slip Op 04562, Fourth Dept 7-24-26

Practice Point: Here plaintiffs, residents of East Buffalo who live near an expressway, stated causes of action against the State stemming from the construction of the expressway on land which once served as a park.

 

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ALTHOUGH THE CONTRACT WAS BETWEEN SOPHISTICATED PARTIES, THE CLAUSE “THE OWNER AND ARCHITECT AGREE TO MUTUALLY WAIVE EACH OTHER [SIC] RIGHT TO SUE OR PLACE CLAIMS AGAINST EACH OTHER” WAS VOID AS AGAINST PUBLIC POLICY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the contract clause “THE OWNER AND ARCHITECT AGREE TO MUTUALLY WAIVE EACH OTHER [sic] RIGHT TO SUE OR PLACE CLAIMS AGAINST EACH OTHER” was unenforceable as against public policy:

… [T]he waiver provision … purports to completely foreclose the possibility of any form of judicial or nonjudicial review. Although … the agreement was negotiated at arm’s length between sophisticated parties, freedom of contract is not merely an individual right, and enforcing the waiver provision has implications beyond the individual choices of the contracting parties … . In 159 MP Corp. v Redbridge Bedford, LLC (33 NY3d 353), the Court of Appeals upheld a waiver precluding the plaintiffs from commencing a declaratory judgment action. The Court of Appeals noted that “[c]ritically, the waiver clause at issue here does not preclude access to the courts but leaves available other judicial avenues through which plaintiffs may adjudicate their rights under the leases” … . The Court of Appeals specified that “the waiver does not impair plaintiffs’ ability to seek damages on breach of contract or tort theories” … .

Here, in contrast, the waiver provision precludes access to the courts and leaves no judicial or nonjudicial avenues through which the plaintiff may adjudicate his rights under the agreement. Thus, the waiver provision is void and unenforceable as against public policy … . Hochhauser v Urban Off. Architecture, PLLC, 2026 NY Slip Op 04491, Second Dept 7-22-26

Practice Point: A contract clause with waives all access to the courts is void as against public policy.​

 

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DEFENSE COUNSEL PURSUED A REASONABLE ALTERNATIVE STRATEGY IN MOVING TO SUPPRESS DEFENDANT’S STATEMENTS THAT DID NOT REQUIRE AN INVESTIGATION INTO DEFENDANT’S MENTAL HEALTH AND SUBSTANCE ABUSE; THEREFORE DEFENSE COUNSEL’S PURPORTED FAILURE TO INVESTIGATE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined defense counsel’s purported failure to investigate defendant’s mental health and substance abuse history in order to challenge the voluntariness of defendant’s statements to police did not constitute ineffective assistance of counsel. Counsel’s decision to employ an alternative strategy was reasonable:

Defendant’s assigned counsel later moved to suppress defendant’s statements. At a pretrial hearing, counsel argued that defendant provided those statements while operating under a reasonable belief that he would be given immunity in exchange for his information, and therefore the statements were involuntary. Counsel supported that argument with a variety of evidence, including, among other things, defendant’s refusal to offer any statements until he could speak with an assistant district attorney (ADA), an unrecorded conversation with an ADA, and a note in the police file in defendant’s handwriting stating that he would need immunity and payment in exchange for his information. Counsel also relied upon defendant’s Miranda waiver form, on which he crossed out “defendant” and wrote in “C.I.,” for confidential informant. Defendant also testified at the suppression hearing that he had been offered immunity by the ADA during the unrecorded conversation.  * * *

In 2019, while his direct appeal was still pending, defendant moved to vacate the judgment pursuant to CPL 440.10. He argued that his trial counsel was ineffective for failing to investigate his history of mental health disorders and substance abuse. The court ordered a hearing, at which defendant’s trial counsel testified. Counsel asserted that although he was aware of defendant’s mental health and substance abuse history, defendant “had given [counsel] such a clear picture” of what happened that “was supported by documentary evidence” and that in counsel’s “50 years of practicing [he had] never had a case where [he had] seen, or known of a case where [he had] seen that a person” who shared defendant’s mental health diagnosis successfully suppress a statement on that ground. People v Fernandez, 2026 NY Slip Op 03915, CtApp 6-23-26

Practice Point: Although defendant’s mental health and substance abuse history may have been used to argue his statements to police were not voluntary, defense counsel felt that argument would fail and pursued a reasonable alternative strategy which did not require a mental-health and substance-abuse investigation. Defense counsel was therefore not “ineffective.”

 

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THE NYS AND NYC “RIGHT TO RECORD ACTS,” WHICH GIVE CITIZENS THE RIGHT TO RECORD POLICE ACTIVITIES, DO NOT ALLOW RECORDING IN PUBLICLY ACCESSIBLE POLICE-STATION LOBBIES (CT APP).

The Court of Appeals, answering a certified question from the Second Circuit, determined that the NYS and NYC Right to Record Acts (RTRA’s), which allow citizens to record police activities, do not allow recording inside police stations:

We … do not opine as to the full scope of the RTRAs’ application or any other places where the RTRAs may apply. We reformulate the question as follows:

“Does either N.Y. Civil Rights Law § 79-p or Administrative Code of the City of New York §§ 14-189 afford individuals such as plaintiff Reyes the right to video record law enforcement activities inside the publicly accessible lobbies of police stationhouses?”

We answer that question in the negative. Reyes v City of New York, 2026 NY Slip Op 03914, CtApp 6-23-26

 

PLAINTIFF SOCIAL MEDIA PLATFORMS BROUGHT SUIT IN FEDERAL COURT CLAIMING CERTAIN PROVISIONS OF NEW YORK’S “HATEFUL CONDUCT LAW” (HCL) VIOLATE THE FIRST AMENDMENT; THE SECOND CIRCUIT CERTIFIED THREE NARROW QUESTIONS ABOUT THE MEANING AND APPLICABILITY OF THE STATUTE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a three-judge dissent, answering narrow certified questions from the Second Circuit, determined the meaning of certain provisions of the Hateful Conduct Law (HCL) which is codified in General Business Law section 394-ccc: The law seeks to address “hateful conduct” on social media platforms:

In response to increasing violence fueled by hateful rhetoric on social media, the legislature enacted General Business Law § 394-ccc (hereinafter the “Hateful Conduct Law” or “HCL”) with the aim of “requiring social media networks to provide and maintain mechanisms for reporting hateful conduct on their platform[s]” … . Before the law became effective, the social media network plaintiffs obtained a stay of its enforcement from the federal district court, claiming that its provisions would effectively compel them to speak out against hateful conduct and otherwise chill the publication of qualifying content in violation of the First Amendment.

In reviewing that order on appeal, the United States Court of Appeals for the Second Circuit has certified three questions to us concerning the scope of the statute. The first two questions essentially ask whether a social media network can comply with the HCL without explicitly referencing its definition of hateful conduct. Applying our ordinary canons of statutory construction, we answer those questions in the affirmative. The third certified question essentially asks whether the statute requires a social media network to respond to a user report of hateful conduct. We answer that question in the negative. Volokh v James, 2026 NY Slip Op 03913, CtApp 6-23-26

 

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THE LABOR LAW PREVAILING-WAGE PROVISIONS APPLY TO PUBLIC WORKS CONTRACTS; ANY CONTRACTUAL ATTEMPT TO SHORTEN THE STATUTE OF LIMITATIONS IS UNENFORECABLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, answering two certified questions from the Second Circuit, determined (1) the Labor Law provisions requiring that workers receive the prevailing wage for public works projects apply irrespective of the language in a contract, and (2) any provisions purporting to shorten the statute of limitation periods in public works contracts are unenforceable:

We have accepted two certified questions from the United States Court of Appeals for the Second Circuit concerning third-party beneficiary breach of contract claims to enforce the right of a public works project employee to receive a prevailing wage under the Labor Law. We hold that Labor Law § 220 makes such claims available regardless of the underlying contract’s language and that given the unique status of the constitutional and statutory right to a prevailing wage, agreements to shorten limitation periods in public works contracts are unenforceable against such claims. ​Walton v Comfort Sys. USA (Syracuse), Inc., 2026 NY Slip Op 03911, CtApp 6-23-26

 

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THE EQUAL RIGHTS AMENDMENT DOES NOT RENDER THE MANDATORY RETIREMENT AGES FOR JUDGES UNCONSTITUTIONAL (CT APP). ​

The Court of Appeals determined the mandatory retirement ages for judges (70 and 76) do not violate the Equal Rights Amendment (ERA) and do not constitute “age discrimination:”

Members of the judiciary in New York State have been subject to a mandatory retirement age since the adoption of our first State Constitution in 1777. In the current Constitution, article VI, § 25 (b) mandates retirement at 70 years old, with an opportunity for certain judges and justices to serve until age 76. Petitioners, former and sitting justices of the New York State Courts, contend that this provision was implicitly repealed by the Equal Rights Amendment (“ERA”) of 2024, which amended article I, § 11 to add, inter alia, age to the classes protected from discrimination in the exercise of civil rights. Petitioners argue that as a result of this alleged implicit repeal, Judiciary Law §§ 23 and 115, which together implement the constitutional mandatory retirement age cap and certification system set forth in article VI, § 25 (b), are now unconstitutional. However, we have long held that implied repeal is disfavored … . The text, purpose, and history of these constitutional provisions establish that they operate independently: article VI, § 25 (b)’s retirement mandate addresses a different constitutional matter than the ERA, and the two provisions are not antagonistic and may be harmonized. Therefore, we affirm the Appellate Division order affirming dismissal of the underlying petition. Matter of Miller v State of New York, 2026 NY Slip Op 03907, CtApp 6-18-26

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DEFENDANT HAD REQUESTED NEW COUNSEL AND ARGUED THE JUDGE DID NOT MAKE THE PROPER INQUIRY BEFORE DENYING THE REQUEST; DEFENDANT PLED GUILTY REPRESENTED BY HIS ORIGINAL COUNSEL; THE FOURTH DEPARTMENT RULED THE DEFENDANT “ABANDONED” HIS “INVOLUNTARY PLEA” ARGUMENT BY REMAINING REPRESENTED BY THE SAME ATTORNEY AT THE TIME OF THE PLEA; THE COURT OF APPEALS RULED DEFENDANT NEVER ABANDONED THE “INVOLUNTARY PLEA” ARGUMENT AND THE LINE OF FOURTH DEPARTMENT DECISIONS TO THE CONTRARY SHOULD NOT BE FOLLOWED (CT APP).

The Court of Appeals, reversing the Appellate Division and invalidating a line of Fourth Department decisions, determined the defendant did not waive the argument that his guilty plea was not voluntarily entered. Defendant had argued the trial judge did not make the required findings after defendant requested new counsel. The Fourth Department ruled that argument was abandoned because defendant pled guilty while represented by his original defense attorney. The Court of Appeals held the defendant had never waived the “involuntary plea” argument:

The Fourth Department’s holding, the most recent in a line of cases to the same effect, is wrong for several reasons. First, as the Appellate Division acknowledged, a claim challenging the voluntariness of a plea survives even a valid appeal waiver … . A challenge to voluntariness cannot be extinguished because the same counsel about whom a defendant has complained, unsuccessfully, continued to represent the defendant at plea and sentencing. Second, in any event, these circumstances do not constitute waiver of defendant’s voluntariness claim … . Waiver “occurs when a defendant intentionally and voluntarily relinquishes or abandons a known right that would otherwise survive a guilty plea” … . Here, the fact that defendant pleaded guilty while represented by the same attorneys does not evince an intentional choice to abandon review of the voluntariness of his plea. Defendant contends that his guilty plea was an effort to mitigate the harm resulting from the court’s denial of his request for new counsel, not an abandonment of his request. To the extent that the Appellate Division relied on the fact that, during the plea colloquy, defendant did not renew his complaints about counsel, his silence does not indicate waiver. Finally, the Fourth Department’s line of cases adopting this erroneous rule originates in People v Hobart (286 AD2d 916 [4th Dept 2001]), which cited no case law or authority for its rule, nor does it explain the rule’s origins. The other Departments have not adopted that rule. People v Kelley, 2026 NY Slip Op 03904, CtApp 6-18-26

Practice Point: Here defendant requested new counsel and the request was denied. Then defendant pled guilty while represented by his original counsel. Defendant did not waive his “involuntary plea” argument by pleading guilty with his original counsel. The line of Fourth Department decisions which held a guilty plea in this context abandons defendant’s “involuntary plea” argument is no longer valid. The abandonment or waiver of an “involuntary plea” argument must be explicit.

 

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PETTIONERS (LICENSED CANNABIS RETAILERS) DID NOT DEMONSTRATE THAT THE RESPONDENT AGENCY’S REGULATIONS CONCERNING INSPECTIONS, SEARCHES AND SEIZURES AT PETITIONERS’ PLACES OF BUSINESS ARE UNCONSTITUTIONAL; THE ALLEGATION THAT THE MANNER IN WHICH THE INSPECTIONS ARE CONDUCTED VIOLATES THE CONSTITUTION IS PREMATURE BECAUSE THE ALLEGATION HAS NOT YET BEEN SUBJECTED TO ADMINISTRATIVE REVIEW, I.E., THE “EXHAUSTION OF REMEDIES” REQUIREMENT HAS NOT BEEN MET (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the preliminary injunction prohibiting certain inspections of petitioners’ businesses, which are licensed for the retail sale of cannabis, should not have been granted. The respondent is an agency, the NYS Cannabis Control Board.

… [Re:] petitioners’ attempt to show the likelihood of a successful constitutional challenge, we find that Supreme Court abused its discretion in granting the preliminary injunction because petitioners failed to show that the statutory and regulatory scheme is invalid in all of its applications … . * * *  When viewed as a whole, we find that the statutory and regulatory framework provides “meaningful limitation[s]” on an inspector’s discretion and ensures that “the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place” … . …

To the extent petitioners challenge the manner in which inspections were applied to their particular businesses, these “as-applied” claims are premature because they have not been subjected to administrative review. A facial challenge requires examination of the statute “on a cold page” and without reference to the particular conduct … , whereas an “as-applied” challenge “requires an analysis of the facts of a particular case” … . Matter of Super Smoke N Save LLC v New York State Cannabis Control Bd., 2026 NY Slip Op 03715, Third Dept 6-11-26

Practice Point: A court can review an agency’s regulations which are alleged to be unconstitutional “on a cold page,” but a court cannot review the manner in which the regulations are applied absent an agency determination (the “exhaustion of remedies” rule in administrative law).

 

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