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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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BECAUSE THE COURT WAS NOT AUTHORIZED TO PLACE PETITIONER IN CUSTODY, THE COURT COULD NOT ORDER PETITIONER TO BE REMANDED TO RIKER’S ISLAND FOR A CPL ARTICLE 730 EXAMINATION; THE HABEAS CORPUS PETITION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department determined Supreme Court was not authorized to remand the petitioner, Wei Li, to Riker’s Island for a CPL article 730 examination because defendant was charged with a misdemeanor and was not in custody. Therefore the habeas corpus petition should have been granted:

… [T]he references in CPL 730.20(2) and (3) to the defendant either having been theretofore released on bail or on his or her own recognizance, or being in custody, respectively, at the time a court issues an order of examination presuppose that a securing order has been issued upon arraignment as required by law (see CPL 170.10[7]; 210.15[6]; 510.10[1]). As such, a defendant’s previously determined, or statutorily mandated, liberty status—either release or in custody—cannot be changed because a CPL article 730 examination is ordered: if the defendant has been ordered released (or, as in the case of non-qualifying offenses, is required to be released), then the court is authorized (“may “) only to direct that the examination be conducted on an outpatient basis or, under certain circumstances, that the defendant be confined in a hospital until the examination is completed (see CPL 730.20[2]); if the defendant has been committed to custody, then he or she must remain in custody for the examination, even if he or she must be taken to a hospital for purposes of conducting same (see id. § 730.20[3]). A defendant who has been ordered released, or, as in Wei Li’s case, was statutorily entitled to release (see CPL 510.10[3]; 530.20[1]), cannot be jailed because the court ordered a CPL article 730 examination. People v Warden, 2021 NY Slip Op 03867, Second Dept 6-16-21

 

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ALTHOUGH ONE OF THREE STATEMENTS MADE TO A DETECTIVE AFTER DEFENDANT HAD INVOKED HIS RIGHT TO COUNSEL WAS NOT SPONTANEOUS, ITS ADMISSION WAS HARMLESS ERROR; THE DISSENT ARGUED ALL THREE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AND THE CONSTITUTIONAL ERROR WAS NOT HARMLESS (FOURTH DEPT).

The Fourth Department, over a dissent, determined that two of three statements made after defendant had invoked his right to counsel were spontaneous and properly admitted. The third statement was deemed a response to the functional equivalent of interrogation, but its admission was harmless error. The dissent argued that all three statements should have been suppressed and the constitutional error was not harmless:

[The] statements were made by defendant after the interrogation ceased and while a detective was sitting next to him, completing the arrest paperwork. After the detective asked him certain pedigree questions, defendant asked “How’s Annie doing?,” referring to decedent’s wife. The detective replied that she was “hurt” and said that she “lost the person she loved the most in life.” The detective then asked defendant if he wanted another coffee or soda and, after defendant responded that he would like another cup of coffee, he started crying. The detective whispered “good response” and told him “that’s remorse.” There was a brief interruption when another detective opened the door to the interview room and discussed lunch plans with the first detective, and the first detective then asked defendant if he was hungry. Defendant responded “yeah,” and then stated “it wasn’t supposed to happen like that” and that he “didn’t mean for any of that to happen” (first statement). After the detective responded “I understand,” defendant stated “I just wanted to prank ’em just like jig ’em” (second statement). After the detective responded with several statements including that “remorse is what we wanted to see” and that the police did not think that defendant’s intentions were to kill anyone, defendant said “I should’ve just stuck around. Maybe I coulda [sic] done something” (third statement). * * *

With respect to the third statement, we agree with defendant that it was not spontaneous because it was made in response to the functional equivalent of express questioning by the detective … . People v Bowen, 2021 NY Slip Op 03685, Fourth Dept 6-11-21

 

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THE RECENT US SUPREME COURT CASE HOLDING THAT A STATE MUST CONSENT TO SUIT AGAINST IT IN A SISTER STATE DID NOT AFFECT THE DOCTRINE OF “WAIVER OF SOVEREIGN IMMUNITY;” HERE NEW JERSEY WAIVED THE DOCTRINE BY PARTICIPATING IN THE FIRST TRIAL OF THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, in a comprehensive discussion which cannot be fairly summarized here, determined the defendant, New Jersey Transit, had waived sovereign immunity by participating in the first trial of this traffic accident case. The fact that, since the first trial, the US Supreme Court ( the Hyatt case) held a state may not be sued in a sister state without consent (the “consent to the jurisdiction of a sister state” issue) did not require a different result on the “waiver of sovereign immunity” issue:

There is no dispute that New Jersey Transit did not make a voluntary appearance in this action. It then argues that it made no clear statement by its litigation conduct that it was submitting to the jurisdiction of the courts of this state, pointing out that it has taken a defensive posture from this action’s inception because it had no legitimate legal basis for objecting to New York’s jurisdiction until seven years after the action was commenced, when Hyatt was decided, in 2019. These arguments are an oversimplification of this substantive constitutional issue. The issue is whether New Jersey Transit undertook a litigation strategy that can be deemed a voluntary waiver of its sovereign immunity. * * *

We reject New Jersey Transit’s argument that the sovereign immunity defense was not available at the time it served its answer in this action. The doctrine of sovereign immunity as it applies to states has been available at least since … 1979. The Hyatt Court dramatically altered the sovereign immunity analysis … . Hyatt did not, however, give birth to the doctrine. We cannot help but see the obvious unfair tactical advantage of conceding liability and losing at the first trial on damages and then seeking dismissal of the second trial on damages several years later, based not on the merits of the action but on an alleged “new” defense of sovereign immunity. Belfand v Petosa, 2021 NY Slip Op 03522, First Dept 6-3-21

 

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ALL EIGHT OF THE SCHOOL DISTRICTS EXAMINED VIOLATED THE CONSTITUTIONAL REQUIRMENT TO PROVIDE A SOUND EDUCATION TO THE AT-RISK STUDENT POPULATIONS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the plaintiffs established a violation of the constitutional requirement to provide a sound education to the at-risk student population in all of the school districts named in the action—Jamestown, Kingston, Mount Vernon, Newburgh, Niagara Falls, Port Jervis, Poughkeepsie, and Utica:

… [P]laintiffs in this case have demonstrated a … set of coalescing circumstances with respect to the at-risk student population in the subject school districts sufficient to establish a constitutional violation. Each of the subject school districts had a high percentage of at-risk students during the stipulated academic years — those who came from impoverished backgrounds, had disabilities, or whose primary language was one other than English. The compelling evidence demonstrated that, in order to place a sound basic education within the reach of such students, they require early interventions, more time on task and other supplemental programming, as well as support from adequate numbers of guidance counselors, social workers or other similar professionals. Despite these enhanced needs, the districts lacked a combined total of over $1.1 billion in funding … , necessitating further cuts to already diminished staff and essential services. Most unfortunately, the performance of the students in these districts suffered as a result. Working from the premise … that all children can succeed when given appropriate instructional, social and health services, we find — based upon the evidence of inadequate inputs, poor outputs and a causal connection to defendant’s school financing system — that plaintiffs have established a constitutional violation with respect to the at-risk student population in each of the subject school districts. Maisto v State of New York, 2021 NY Slip Op 03350, Third Dept 5-27-21

 

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THE RECORDING AND DISCLOSURE OF INMATE PHONE CALLS DO NOT VIOLATE THE INMATES’ RIGHT TO EQUAL PROTECTION (FIRST DEPT).

The First Department reiterated that the recording and disclosure of inmate phone calls do not violate the inmate’s constitutional right to equal protection:

… [O]nce an inmate implicitly consents to the recording of his calls, the inmate retains no reasonable expectation of privacy that would prevent the correctional facility from disclosing the recording. “[W]here detainees are aware that their phone calls are being monitored and recorded all reasonable expectation of privacy in the content of those phone calls is lost, and there is no legitimate reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible” (People v Diaz, 33 NY3d 92, 100 [2019] …). Indeed, at the heart of defendant’s argument is the contradictory proposition that the warrant requirement should be applied to a statement in which he has no privacy interest at all.

The principle stated in Diaz applies to any person, incarcerated or not, who waives his or her privacy interest in a conversation, whether by consenting to have it recorded or otherwise. To this extent, defendant was similarly situated to defendants awaiting trial while at liberty. While defendant was treated disparately from such defendants in that he was required to either consent to recording or go without telephone use, this differential treatment did not run afoul of the equal protection clause. Furthermore, defendant fails to show that the government action at issue burdens a fundamental right … . People v Jennings, 2021 NY Slip Op 03262, First Dept 5-20-21

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THE CONSTRUCTION OF SNOWMOBILE TRAILS IN THE ADIRONDACK PARK IS PROHIBITED BY THE “FOREVER WILD” PROVISION IN THE NEW YORK STATE CONSTITUTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over an extensive two-judge dissent, determined the construction of snowmobile trails in the Adirondack Park would violate the “forever wild” provision of the New York State Constitution:

… [W]e must determine whether the state’s plan for the construction of approximately 27 miles of Class II community connector trails designed for snowmobile use in the Forest Preserve is permissible under the New York Constitution. The plan requires the cutting and removal of thousands of trees, grading and leveling, and the removal of rocks and other natural components from the Forest Preserve to create snowmobile paths that are nine to 12 feet in width. We conclude that construction of these trails violates the “forever wild” provision of the New York State Constitution (art XIV, § 1) and therefore cannot be accomplished other than by constitutional amendment. * * *

The Forest Preserve is a publicly owned wilderness of incomparable beauty. Located in two regions of the Adirondack and Catskill Mountains, the Forest Preserve—with its trees, rivers, wetlands, mountain landscape, and rugged terrain—is a respite from the demands of daily life and the encroachment of commercial development. It has been this way for over a century because our State Constitution mandates:

“The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.” …

This unique “forever wild” provision was deemed necessary by its drafters and the people of the State of New York to end the commercial destruction and despoliation of the soil and trees that jeopardized the state’s forests and, perhaps most importantly, the state watershed. Protect the Adirondacks! Inc. v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 02734, CtApp 5-4-21

 

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THE DEPARTMENT OF FINANCIAL SERVICES’ AMENDMENT TO AN INSURANCE REGULATION DESIGNED TO PROTECT CONSUMERS OF LIFE INSURANCE AND ANNUITY PRODUCTS IS VOID FOR VAGUENESS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing Supreme Court, determined the Department of Financial Services’ (DFS’s) amendment to an Insurance Regulation was void for vagueness:

The amendment was promulgated to address concerns with respect to the growing complexities involved with life insurance and annuity products, the corresponding need for consumers to increasingly rely on the advice of professionals in order to comprehend the widening market of products available and to mitigate abuses with respect to the compensation of agents and brokers (hereinafter collectively referred to as producers [see 11 NYCRR 224.3 (c)]) who have incentive to manipulate consumers into purchasing financial products that result in higher commissions but ultimately fail to meet their needs. * * *

… [W]hile the consumer protection goals underlying promulgation of the amendment are laudable, as written, the amendment fails to provide sufficient concrete, practical guidance for producers to know whether their conduct, on a day-to-day basis, comports with the amendment’s corresponding requirements for making recommendations and compiling and evaluating the relevant suitability information of the consumer … . Although the amendment provides certain examples of what a recommendation does not include (i.e., “general factual information to consumers, such as advertisements, marketing materials, general education information” and “use of . . . interactive tool[s]” (11 NYCRR 224.3 [e] [2]), the remaining definitional language is so broad that it is difficult to discern what statements producers could potentially make that would not be reasonably interpreted by the consumer to constitute advice regarding a potential sales transaction and therefore fall within the purview of the amendment (see 11 NYCRR 224.3 [e] [1], [2]). Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v New York State Dept. of Fin. Servs., 2021 NY Slip Op 02574, Third Dept 4-29-21

 

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EXECUTIVE LAW 552 (PART OF THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT), WHICH CREATED A SPECIAL PROSECUTOR TO PROSECUTE CRIMES OF ABUSE AND NEGLECT OF VULNERABLE PERSONS IN STATE FACILITIES, IS UNCONSTITIONAL TO THE EXTENT IT ALLOWS THE PROSECUTION OF CRIMES BY AN UNELECTED APPOINTEE OF THE GOVERNOR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over two concurring opinions, determined Executive Law 552 (part of the Protection of People with Special Needs Act), which created a special prosecutor to prosecute crimes of abuse or neglect of vulnerable persons in facilities operated by the state, is unconstitutional to the extent it allows an unelected appointee of the governor to prosecute crimes. The portions of the statute which do not relate to the prosecution of crimes, however, remain viable:

Given that the purpose of enacting the Special Needs Act was to “bolster the ability of the state to respond more effectively to abuse and neglect of vulnerable persons” … , it is apparent that the Legislature would wish that as much of Executive Law § 552 aimed at protecting that class of victims as can be preserved remain in effect. Nor would excising the offending provisions leave the remainder without any beneficial impact. Therefore, while the subdivisions of the statute that provide the special prosecutor with the discretionary authority to bring criminal cases … must be struck as unconstitutional … , the portion of Executive Law § 552 (1) that provides the special prosecutor with non-prosecutorial functions should remain in force. Likewise, we leave intact Executive Law § 552 (2) (a) (ii), which empowers the special prosecutor “to cooperate with and assist district attorneys and other local law enforcement officials in their efforts against . . . abuse or neglect of vulnerable persons,” without interfering with those efforts (emphasis added). Cooperation with the local District Attorney furthers the overarching goal of the Legislature—providing resources to address crimes of abuse and neglect committed against vulnerable persons—without infringing on that constitutional officer’s essential authority. People v Viviani, 2021 NY Slip Op 01934, CtApp 3-30-21

 

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THE REPEAL OF THE RELIGIOUS EXEMPTION TO THE PUBLIC HEALTH LAW REQUIRING VACCINATION AGAINST MEASLES IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined that the repeal of the religious exemption to the Pubic Health Law which allowed parents to refuse to vaccinate their children against measles was constitutional. The statute also allows a medical exemption, which was not repealed. The declaratoy-judgment complaint was dismissed for failure to state a cause of action:

It is well settled that, “the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [one’s] religion prescribes (or proscribes)” … . As such, to state a federal free exercise claim, a plaintiff generally must establish that “the object or purpose of a law is the suppression of religion or religious conduct” … . Significantly, if the law is neutral and of general applicability, a rational basis is all that is required to meet constitutional muster under the First Amendment, even if the law “proscribes (or prescribes) conduct that [one’s] religion prescribes (or proscribes)” … . * * *

Those school children with medical exemptions have been advised by a physician that certain immunizations may be detrimental to their physical health (see Public Health Law § 2164 [8]). There are many arguments to be made as to how children formerly subjected to the religious exemption may also be detrimentally impacted, however, documented concerns as to the physical well-being of children with medical exemptions is a sufficient basis upon which to distinguish the two groups. Indeed, it would be irrational to sacrifice the physical health of some children in the pursuit of protecting public health. In attempting to address the vulnerabilities in its current immunization scheme, the Legislature was permitted to exercise such “broad discretion required for the protection of the public health” … . F.F. v State of New York, 2021 NY Slip Op 01541, Third Dept 3-18-21

 

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