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THE SEXUAL ASSAULT REFORM ACT (SARA), WHICH PLACES RESTRICTIONS ON WHERE SEX OFFENDERS CAN RESIDE AFTER RELEASE FROM PRISON, DOES NOT VIOLATE THE EX POST FACTO CLAUSE OF THE US CONSTITUTION (THIRD DEPT).

The Third Department, reversing Supreme Court and agreeing with the First and Second Departments, determined the Sexual Assault Reform Act (SARA), which prohibits petitioner-sex-offender from residing within 1000 feet of school grounds, did not violate the Ex Post Facto clause of the US Constitution:

Because petitioner was unable to locate housing in New York City that fulfilled the residency requirements imposed by SARA, even with respondents’ assistance (see Correction Law § 201 [5]), he remained incarcerated. * * *

We are guided … by a recent case concerning individuals in a situation akin to petitioner’s, in which the Court of Appeals held that “the temporary confinement of sex offenders in correctional facilities, while on a waiting list for SARA-compliant [New York City Department of Homeless Services] housing, is rationally related to a conceivable, legitimate government purpose of keeping level three sex offenders more than 1,000 feet away from schools,” and “[t]he existence of less restrictive methods of monitoring [individuals in these circumstances] during this period does not invalidate the use of correctional facilities” … . …

… “[i]n assessing the constitutionality of a statute, this Court does not review the merits or wisdom of the Legislature’s decisions on matters of public policy, and the fact that the restrictions are difficult and cumbersome is not enough to make them unconstitutional. Although one can argue that such laws are too extreme or represent an over-reaction to the fear of sexual abuse of children, they do not violate the [E]x [P]ost [F]acto [C]lause” … . People ex rel. Rivera v Superintendent, Woodbourne Corr. Facility, 2021 NY Slip Op 07044, Third Dept 12-16-21

 

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THE RESPONDENT IN THIS JUVENILE DELINQUENCY PROCEEDING WAS ENTITLED TO IMPEACHMENT EVIDENCE CONCERNING THE ARRESTING OFFICERS TO THE EXTENT ALLOWED UNDER CRIMINAL PROCEDURE LAW (CPL) 245.20 (FIRST DEPT).

The First Department, reversing Family Court, determined the respondent-appellant in this juvenile delinquency proceeding was entitled to impeachment evidence concerning the arresting officers to the extent authorized by Criminal Procedure Law (CPL) 245.20:

While not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws (US Const, 14th Amend; NY Const, art I, § 11 …).

A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant … , and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Matter of Jayson C., 2021 NY Slip Op 06794, First Dept 12-7-21

 

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COMMENTS ALLEGEDLY MADE BY A JUROR DURING DELIBERATIONS EXPRESSING ETHNIC BIAS REQUIRED A HEARING AND FINDINGS WHETHER DEFENDANT’S CONSTITUTIONAL RIGHTS, BOTH FEDERAL AND STATE, WERE VIOLATED (FIRST DEPT).

The First Department remitted the matter for a hearing on defendant’s motion to vacate the judgment, Defendant’s motion included an affidavit from the jury foreperson alleging a juror exhibited ethnic bias during deliberations:

The People consent to this matter being remanded for a hearing to determine whether ethnic bias tainted the jury’s deliberations as alleged by defendant (see PeÑa-Rodriguez v Colorado, – US -, 137 S Ct 855 [2017]; People v Leonti , 262 NY 256 [1933]). Defendant’s CPL 440 motion included an affidavit from the jury foreperson, in which he swore that, during deliberations, a juror made ethnic comments concerning defendant and the complainant exhibiting “overt [ethnic] bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict” (PeÑa-Rodriguez , – US -, 137 S Ct at 869).

At the hearing, the court should determine the veracity of these allegations. Should the court find these allegations to be true, it should determine, as a matter of federal law, whether defendant’s Sixth Amendment right to jury trial was denied because “[ethnic] animus was a significant motivating factor in the juror’s vote to convict” … . The court should also determine more broadly, as a matter of New York State law, whether the juror’s statements “created a substantial risk of prejudice to the rights of the defendant by coloring the views of the other jurors as well as her own” … . People v Chodakowski, 2021 NY Slip Op 06781, First Dept 12-2-21

 

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THE AIDING AND ABETTING FRAUD AND JUDICIARY LAW CAUSES OF ACTION WERE PRECLUDED BY THE NOERR-PENNINGTON DOCTRINE; THE FRAUDULENT INDUCEMENT CAUSE OF ACTION DID NOT ALLEGE RELIANCE (SECOND DEPT).

The Second Department determined the aiding and abetting fraud and Judiciary Law 487 causes of action were barred by the Noerr-Pennington doctrine (see Mine Workers v Pennington, 381 US 657; Eastern Railroad Presidents Conference v Noerr Motor Freight, Inc., 365 US 127), and the complaint did not state a cause of action for fraudulent inducement:

“The Noerr-Pennington doctrine protects the right under the First Amendment to the United States Constitution to petition the government for governmental action, including through litigation and activity incidental to litigation” … . …

… Supreme Court properly concluded that the causes of action alleging that the defendants aided and abetted fraud and violated Judiciary Law § 487 were barred by the Noerr-Pennington doctrine. The Noerr-Pennington doctrine applied to these causes of action insofar as they were based upon litigation and activities that were incidental to litigation, and the pertinent allegations did not fit within either the “sham” or the “corruption” exceptions to the Noerr-Pennington doctrine … . …

Where a cause of action is based upon misrepresentation or fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]). Here, the allegations in the complaint failed to sufficiently allege justifiable reliance, and therefore failed to state a cause of action for fraudulent inducement … . Louie’s Seafood Rest., LLC v Brown, 2021 NY Slip Op 06167, Second Dept 11-10-21

 

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RETRIAL VIOLATED THE PROTECTION AGAINST DOUBLE JEOPARDY; DEFENDANT HAD MADE A MOTION FOR A MISTRIAL WITH PREJUDICE AND DID NOT CONSENT TO THE DISCHARGE OF THE JURY (FIRST DEPT).

The First Department, reversing defendant’s conviction in the retrial and dismissing the indictment, determined the trial court’s failure to procure defendant’s consent to discharge the jury after defendant’s motion for a mistrial with prejudice triggered the protection against double jeopardy:

Double jeopardy bars a retrial except as to a defendant who has requested or consented to the mistrial … . Here, the record does not show that either defendant consented to a mistrial without prejudice. Defendants initially made general motions for a mistrial, but on the next day they expressly limited their motions to requests for a mistrial with prejudice. Accordingly, when the court announced its ruling shortly afterwards, it should have obtained defendants’ unequivocal consent before discharging the first jury or else have continued the trial with the same jury … . The retrial thus violated the constitutional prohibitions against double jeopardy, and these prohibitions require reversal of defendants’ convictions and dismissal of the indictment … . Defendants’ double jeopardy claim does not require preservation, although it may be expressly waived … . However, there was no such waiver here. People v Lantigua, 2021 NY Slip Op 05671, First Dept 10-19-21

 

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NYC’S RIGHT OF WAY LAW CRIMINALIZES ORDINARY NEGLIGENCE WHEN A VEHICLE STRIKES A PEDESTRIAN OR A BICYCLIST WHO HAS THE RIGHT OF WAY; THE LAW IS NOT VOID FOR VAGUENESS, PROPERLY IMPOSES ORDINARY NEGLIGENCE AS THE MENS REA, AND IS NOT PREEMPTED BY OTHER LAWS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a concurring opinion, determined New York City’s “Right of Way Law,” which criminalizes ordinary negligence when a vehicle strikes a pedestrian or bicyclist who has the right of way, is constitutional and is not preempted by other laws. Both defendants were convicted under the Right of Way Law (NYC Administrative Code 19-190), a misdemeanor. The defendants unsuccessfully argued (1) the law is void for vagueness; (2) ordinary negligence cannot constitute the mens rea for a criminal act; and (3) the law is preempted by the Penal Law and the Vehicle and Traffic Law:

Article 15 of the Penal Law lists and defines four “culpable mental states”—”intentionally,” “knowingly,” “recklessly,” and “criminal negligence” … . However, strict liability is also contemplated by article 15: “[t]he minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which [such person] is physically capable of performing,” and, “[i]f such conduct is all that is required for commission of a particular offense, . . . such offense is one of ‘strict liability'” … . * * *

The provisions of the Penal Law “govern the construction of and punishment for any offense defined outside” of the Penal Law, “[u]nless otherwise expressly provided, or unless the context otherwise requires” (Penal Law § 5.05 [2]). The two key provisions at issue, Penal Law § 15.00 (Culpability; definitions of terms) and § 15.05 (Culpability; definitions of culpable mental states), expressly provide otherwise by making clear that they are “applicable to this chapter” only. Further contradicting defendants’ interpretation of article 15 is the legislature’s own use of an ordinary negligence mens rea for offenses defined outside the Penal Law. For example … Vehicle and Traffic Law § 1146 and Agriculture and Markets Law § 370—which were enacted after the relevant provisions in article 15 of the Penal Law—both employ an ordinary negligence standard for imposing criminal liability. People v Torres, 2021 NY Slip Op 05448, CtApp 10-12-21

 

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BUFFALO MAYOR’S CONSTITUTIONAL CHALLENGE TO THE ELECTION-LAW DEADLINE FOR FILING AN INDEPENDENT NOMINATING PETITION, WHICH WAS ACCEPTED BY SUPREME COURT, REJECTED BY THE 4TH DEPARTMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined Election Law 6-158 (9) was not unconstitutional as applied to a Buffalo mayoral race. The petitioner, who had lost in a primary, attempted to file an independent nominating petition in August but the Election Law required filing in May:

The degree of scrutiny used to analyze the constitutionality of a state election regulation depends on the severity of the regulation’s burden on the constitutional rights of candidates and their supporters … . If that burden is severe, the law “must be narrowly drawn to advance a state interest of compelling importance” … . A provision imposing “only reasonable, nondiscriminatory restrictions,” however, can be justified by a state’s “important regulatory interests” … and is subject to a review that is “quite deferential” and requires “no elaborate, empirical verification” … . The totality of a state’s overall plan of election regulation should be considered in determining the severity of the restrictions … . * * *

Because a “reasonably diligent candidate” could be expected to meet New York’s requirements for independent candidates and gain a place on the ballot … and because those requirements do not unfairly discriminate against independent candidates … , we conclude that Election Law § 6-158 (9) places only a minimal burden on the constitutional rights of those candidates and their voters. Matter of Brown v Erie County Bd. of Elections, 2021 NY Slip Op 05014, Fourth Dept 9-16-21

 

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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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