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ALTHOUGH THE WARRANTLESS SEARCH OF THE INTERIOR OF THE CAR FOR MARIJUANA WAS JUSTIFIED, THE FORGED CREDIT CARDS SHOULD NOT HAVE BEEN EXAMINED AND SIEZED; THERE WAS NOTHING ABOUT THE CARDS WHICH INDICATED THEY WERE CONTRABAND UNDER THE “PLAIN VIEW” DOCTRINE; THE COMPREHENSIVE DISCUSSION OF THE CRITERIA FOR WARRANTLESS SEARCHES UNDER THE NYS CONSTITUTION IS WORTH CONSULTING (SECOND DEPT).

The Second Department, reversing Supreme Court, in a comprehensive decision addressing the criteria for warrantless searches under the NYS Constitution, determined the credit cards seized in a legitimate warrantless automobile search for marijuana should have been suppressed. Although it turned out the credit cards were forged, there was nothing about their appearance which justified ascertaining the names on the cards under the “plain view” doctrine:

The record here established that Officer Zaleski had probable cause to search the center console of the vehicle—and the small zippered wallet that was contained within it—for the presence of marihuana … . * * *

Although Officer Zaleski lawfully encountered the three credit cards when he opened the zippered wallet to see whether there was marihuana inside it, the facts available to Officer Zaleski at the time he opened the zippered wallet would not “warrant a [person] of reasonable caution in the belief that [the credit cards] may be contraband” … . Indeed, at the time Officer Zaleski opened the zippered wallet, there was no evidence connecting the defendant to any burglary, or any other reason to believe that the three credit cards in the zippered wallet were stolen, forged, or otherwise illicit … . * * *

On this record, Officer Zaleski’s discovery of three credit cards stacked inside a small zippered wallet was insufficient, without more, to justify an additional search that went beyond the search for marihuana. People v Mosquito, 2021 NY Slip Op 04620, Second Dept 8-4-21

 

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BECAUSE A LIBERTY INTEREST IS AT STAKE, RESPONDENT SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO BE HEARD IN OPPOSITION TO THE REVOCATION OF THE SUSPENSION OF THE ORDER OF COMMITMENT (SECOND DEPT).

The Second Department, reversing Family Court, reversing the revocation of the suspension of the order of commitment, determined respondent was entitled to an opportunity to be heard because a liberty interest is at stake:

“The court may suspend an order of commitment upon reasonable conditions and is also authorized to revoke such suspension at any time for good cause shown” … . However, given the liberty interest at stake, the Family Court, before revoking a suspension of an order of commitment, must provide to a respondent an opportunity to be heard and to present witnesses on the issue of whether good cause exists to revoke the suspension … . Here, because the father was deprived of this opportunity, we must reverse the order of commitment appealed from and remit the matter to the Family Court … for a hearing and a determination thereafter of whether good cause exists to revoke the suspension. Matter of Gast v Faria, 2021 NY Slip Op 04549, Second Dept 7-28-21

 

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INDICTMENTS IN TWO COUNTIES RELATED TO THE SAME CONTINUOUS CONDUCT AND THE SAME VICTIM; DEFENDANT’S CONVICTION BY GUILTY PLEA IN NASSAU COUNTY AFTER A GUILTY PLEA IN SUFFOLK COUNTY VIOLATED THE DOUBLE JEOPARDY CLAUSE (SECOND DEPT).

The Second Department, on double-jeopardy grounds, reversed defendant’s conviction by guilty plea in Nassau County because he had already pled guilty to the same conduct in Suffolk County:

The charges in Suffolk County and Nassau County related to the same alleged victim. The Suffolk County indictment alleged that the defendant committed acts constituting course of sexual conduct against a child in the first degree and course of sexual conduct against a child in the second degree between approximately April 2015 and March 1, 2016, whereas the Nassau County indictment alleged that the defendant committed acts constituting course of sexual conduct against a child in the second degree between approximately March 1, 2016, and September 1, 2016.

As the indictments in both counties, viewed together, alleged a single continuing and uninterrupted offense against the same alleged victim, constitutional double jeopardy principles precluded a second conviction, in Nassau County, after the Suffolk County criminal action terminated in a conviction by plea of guilty … . People v Kattis, 2021 NY Slip Op 04240, Second Dept 7-7-21

 

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THE FOUR-YEAR PRE-INDICTMENT DELAY IN THIS RAPE CASE DID NOT VIOLATE DEFENDANT’S CONSTITUTIONAL SPEEDY-TRIAL RIGHTS; TWO JUSTICE DISSENT (SECOND DEPT).

The Third Department, over a two-justice dissent, determined the four-year pre-indictment delay in this rape case did not violate defendant’s constitutional speedy trial rights. The dissent disagreed:

… [T]he preindictment delay of four years was lengthy and the reasons for the delay proffered by the People certainly left something to be desired. However, the People’s submissions established that the investigation was ongoing, that they were acting in good faith and that there were valid reasons for portions of the delay. Additionally, the charge of rape in the first degree can only be characterized as serious … . Furthermore, there was no period of pretrial incarceration and there is no indication that the defense was prejudiced by the delay. In fact, defendant became aware of the accusations against him shortly after the offense occurred. In our view, the seriousness of the offense, the fact that defendant was not incarcerated pretrial and the absence of any demonstrated prejudice outweigh the four-year delay and the shortcomings in the People’s reasons therefor … . People v Regan, 2021 NY Slip Op 04161, Second Dept 7-1-21

 

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THE JUDGE’S SUA SPONTE ASSESSEMENT OF RISK LEVEL POINTS WHICH WERE NOT REQUESTED BY THE PEOPLE OR THE BOARD VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS (SECOND DEPT).

The Second Department, reversing County Court, determined defendant’s due process rights were violated when the judge, sua sponte, assessed risk-level points which were not requested by the People or the Board of Examiners of Sex Offenders:

“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment” … . “A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment” … . Thus, “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond” … .

Here, as correctly conceded by the People, the County Court’s assessment of these points, without prior notice to the defendant, deprived him of a meaningful opportunity to respond to the assessment … . People v Montufar-Tez, 2021 NY Slip Op 04158, Second Dept 6-30-21

 

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PLAINTIFF WAS CONVICTED OF THE MURDER OF HIS FATHER AND THE ATTEMPTED MURDER OF HIS MOTHER; THE FILM ABOUT THE CRIMES DOES NOT VIOLATE PLAINTIFF’S RIGHT TO PRIVACY UNDER CIVIL RIGHTS LAW 50 AND 51 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a comprehensive decision well-worth reading, determined defendant, the creator of a docudrama about Christopher Porco’s murder and attempted murder convictions, did not violate Porco’s right to privacy under Civil Rights Law sections 50 and 51. The statutes allow the depiction of newsworthy events, but the statutes could be violated by fictional material. The Third Department determined the “dramatized” or “fictional” aspects of the film did not violate the statutes, in part because the audience is notified that the film is “based on a true story” and includes dramatized and fictionalized material:

… [T]he film is a dramatization that at times departed from actual events, including by recreating dialogue and scenes, using techniques such as flashbacks and staged interviews, giving fictional names to some individuals and replacing others altogether with composite characters. The film nevertheless presents a broadly accurate depiction of the crime, the ensuing criminal investigation and the trial that are matters of public interest. More importantly, the film makes no effort to present itself as unalloyed truth or claim that its depiction of plaintiffs was entirely accurate, instead alerting the viewer at the outset that it is only “[b]ased on a true story” and reiterating at the end that it is “a dramatization” in which “some names have been changed, some characters are composites and certain other characters and events have been fictionalized.” In our view, the foregoing satisfied defendant’s initial burden of showing that the film addressed matters of public interest through a blend of fact and fiction that was readily acknowledged, did not mislead viewers into believing that its related depictions of plaintiffs was true and was not, as a result, “so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception” … . Porco v Lifetime Entertainment Servs., LLC, 2021 NY Slip Op 04072, Third Dept 6-24-21

 

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PETITIONER WAS ENTITLED TO A HEARING ON A TEMPORARY ORDER OF PROTECTION (TOP) WHICH BARRED HER FROM HER OWN APARTMENT WHERE HER CHILDREN LIVED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Criminal Court, determined the mandamus action against  a Criminal Court judge seeking a hearing on a temporary order of protection (TOP) should have been granted. The First Department found that the matter qualified as an exception to the mootness doctrine and heard the appeal despite the dismissal of the underlying criminal action. Petitioner was charged with assaulting a man with whom she lived in her apartment. The TOP barred her from her own apartment where her children resided:

We find that the Criminal Court’s initial failure to hold an evidentiary hearing in accordance with petitioner’s due process rights after being informed that petitioner might suffer the deprivation of a significant liberty or property interest upon issuance of the TOP falls within the exception to the mootness doctrine: “(1)[there is] a likelihood of repetition, either between the parties or among other members of the public; (2) [it involves] a phenomenon typically evading review; and (3) [there is] a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . Matter of Crawford v Ally, 2021 NY Slip Op 04082, First Dept 6-24-21

 

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THE CITY CHARTER PROVISION DID NOT PROVIDE FOR NOTICE OF A PENDING TAX FORECLOSURE SALE TO MORTGAGEES AND THEREBY VIOLATED THE MORTGAGEE’S DUE PROCESS RIGHTS IN THIS PROCEEDING; THE MORTGAGEE’S MOTION FOR SUMMARY JUDGMENT AGAINST THE CITY WAS PROPERLY GRANTED (SECOND DEPT). ​

The Second Department determined the city charter provision did not provide for notice of pending tax lien sales to parties other than the owner which violated the due process rights of mortgagees:

“The constitutional guarantee of due process requires that a party who has a substantial property interest which may be affected by a tax lien sale receive notice that is ‘reasonably calculated’ to apprise it of an impending sale” … . Thus, “actual notice of a tax sale must be given to all parties with a substantial interest in the property whose names and addresses are ‘reasonably ascertainable'” … . A mortgagee has a legally protected property interest and is legally entitled to notice of a pending tax sale … .

Here, section 93 of the City Charter of the City of Middletown … does not provide for notice of pending tax lien sales to parties other than the owner, but provides only for post-sale notice 60 days prior to the divesting of all rights in the property. As such, City Charter section 93 fails to comport with due process requirements because it makes no provision for actual notice of impending tax sales to be given to mortgagees of record … . Accordingly, the Supreme Court properly denied the City’s motion for summary judgment dismissing the complaint insofar as asserted against it, and, as relevant to this appeal, granted that branch of [the mortgagee’s]  motion which was for summary judgment on the complaint insofar as asserted against the City. Bayview Loan Servicing, LLC v City of Middletown, 2021 NY Slip Op 04006, Second Dept 6-23-21

Similar issue and result in Delacorte v Luyanda, 2021 NY Slip Op 04009, Second Dept 6-23-21

 

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THE HARASSMENT-RELATED SPEECH PROHIBITIONS IN THE ORDER OF PROTECTION DID NOT VIOLATE THE FIRST AMENDMENT BUT THE PROVISION PROHIBITING RESPONDENT FROM DISCSUSSING THE PETITIONER OR THE FAMILY OFFENSE PROCEEDING WAS STRUCK FROM THE ORDER OF PROTECTION AS UNNECESSARY (FIRST DEPT).

The First Department affirmed the finding respondent committed the family offense of harassment by sending email about petitioner’s personal matters to 53 people. Although the harassment prohibitions in the order of protection did not violate the Firs Amendment, the provision in the order of protection which prohibited respondent from discussing the petitioner or the proceedings was struck as unnecessary:

Respondent contends that the provision of the order prohibiting him from discussing petitioner or the case with anyone familiar with petitioner violated his First Amendment right to freedom of speech. To be sure, respondent’s repeatedly sending petitioner emails articulating his unwanted opinions about her, her mother and their family dynamic or making petitioner aware of the emails he sent to several third parties broadcasting those opinions by blind-copying her on those messages is not protected by the First Amendment, because those repeated and unwanted communications serve no legitimate purpose … . However, because the harassment is adequately addressed by the provision that respondent stay away from petitioner and not contact her, we delete the prohibition against his discussing petitioner or the proceeding … . Matter of Sophia M. v James M., 2021 NY Slip Op 03992, First Dept 6-22-21

 

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SUPREME COURT HAD FOUND COVID-19 RESTRICTIONS ON LIVE MUSIC PERFORMANCE UNCONSTITUTIONAL; THE APPEAL WAS DEEMED MOOT AND THE MERITS WERE NOT REACHED (FOURTH DEPT).

The Fourth Department determined the New York State Liquor Authority’s (SLA’s) appeal of Supreme Court’s ruling that the SLA’s COVID-19 guidance imposed upon a tavern (Sportsmen’s) were unconstitutional was moot. Neither party had argued the appeal should be dismissed as moot:

[SLA’s] guidance, which Sportsmen’s was required to abide by pursuant to certain executive orders, prohibited advertised and ticketed main-draw music shows at licensed bars or restaurants and restricted live music at such establishments to only that which was incidental to the dining experience and not the draw itself. …

… [A]lthough the issue of the lawfulness of the prior challenged guidance implemented as part of the extraordinary response to the COVID-19 pandemic is substantial and novel, that issue is not likely to recur … . Moreover, “the issue is not of the type that typically evades review” … . Indeed, as the parties have acknowledged, the guidance at issue here prohibiting advertised and ticketed main-draw music shows has been reviewed on the merits by at least two other courts … . Matter of Sportsmen’s Tavern LLC v New York State Liq. Auth., 2021 NY Slip Op 03957, Fourth Dept 6-17-21

 

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