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INSURANCE REGULATION WHICH PROHIBITS TITLE INSURERS FROM PROVIDING VALUABLE INDUCEMENTS TO ATTRACT TITLE INSURANCE BUSINESS IS NOT UNCONSTITUTIONALLY VAGUE, SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined Insurance Regulation 208 (11 NYCRR part 228), which prohibits title insurers from providing valuable inducements to attract title insurance business, is not unconstitutionally vague:

Petitioners contend that section 228.2(c) is unconstitutionally vague in setting forth a non-exhaustive list of activities that are “permissible, provided[,]” among other things, that they are “reasonable and customary, and not lavish or excessive” … . The court should have rejected this vagueness challenge, since section 228.2(c) “is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden,” and “the enactment provides officials with clear standards for enforcement so as to avoid resolution on an ad hoc and subjective basis” … . … [T}he words “lavish” and “excessive,” standing in clear contrast with the word “reasonable,” provide adequate notice of the type of behavior that is proscribed. The word “customary” also sets forth a standard that can be understood by an ordinary person … . …

The provisions of section 228.2(c) generally permitting advertising, charitable contributions, and political contributions are consistent with the right to free speech under the First Amendment to the United States Constitution and article I, § 8 of the New York Constitution. … The content-neutral provisions at issue in this case are narrowly tailored to the substantial government interest of clarifying a statute intended to “prevent consumers from being required to subsidize unscrupulous exchanges of valuable things for real estate professionals” … , and that interest is “unrelated to the suppression of free expression” …  .  Matter of New York State Land Tit. Assn., Inc. v New York State Dept. of Fin. Servs., 2019 NY Slip Op 09366, First Dept 12-26-19

 

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A PORTION OF THE NYC CHARTER WHICH ALLOWS UNLIMITED SEARCHES OF PAWNBROKERS, THEIR PERSONNEL, PREMISES, MERCHANDISE AND PAPERS IS UNCONSTITUTIONAL; THE UNDERLYING REGULATORY SCHEMES ADDRESSING REPORTING REQUIREMENTS AND INSPECTIONS ARE NOT UNCONSTITUTIONAL (FIRST DEPT).

The First Department determined that the portion of the NY City Charter which gave the police commissioner the power to examine pawnbrokers, their personnel, premises, merchandise and papers was facially unconstitutional because there was no limit on the scope of the searches and allowed for immediate arrest. However the reporting requirements imposed on pawnbrokers are constitutional:

… [W]e hold that NY City Charter § 436 is facially unconstitutional to the extent that it provides that the commissioner “shall have power to examine such persons, their clerks and employees and their books, business premises, and any articles of merchandise in their possession” … . That portion of NY City Charter § 436 is facially unconstitutional because it is unlimited in scope, and provides “no meaningful limitation on the discretion of the inspecting officers” … . NY City Charter § 436 contains no limits on the time, place, and scope of searches of persons or property. It contains no record keeping requirements and it authorizes an immediate arrest for a failure to comply. * * *

… [W]ith respect to the reporting requirements contained in the statutory and regulatory scheme, we … conclude that there is little or no expectation of privacy in the reported information, whether in traditional paper or electronic form, and that the requirements at issue, which are imposed on a closely regulated industry, sufficiently describe and limit the information to be provided, and are reasonably related to the regulatory authority of the agency to which the information is provided … .

With respect to the inspection programs … [:] The regulatory scheme here was not created solely to uncover evidence of criminality. Rather it serves to enforce the reporting requirements that provide consumer protection. Collateral Loanbrokers Assn. of N.Y., Inc. v City of New York, 2019 NY Slip Op 09354, First Dept 12-26-19

 

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THE CALIFORNIA JUDGMENT SHOULD HAVE BEEN GIVEN FULL FAITH AND CREDIT; THE COURT SHOULD NOT HAVE CONSIDERED THE UNDERLYING MERITS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a California judgment should have been given full faith and credit and the underlying merits should not have been considered:

The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the judgment and the order, which obligated the defendants to pay the plaintiff certain amounts, and evidence that the defendants had not paid the amounts awarded therein (see CPLR 3213 …). In opposition, the defendants failed to raise a triable issue of fact as to a bona fide defense.

The full faith and credit clause of the United States Constitution (US Const, art IV, § 1) requires that the public acts, records, and judicial proceedings of each state be given full faith and credit in every other state. The purpose of the clause is to avoid conflicts between states in adjudicating the same matters … . “The doctrine establishes a rule of evidence . . . which requires recognition of the foreign judgment as proof of the prior-out-of-State litigation and gives it res judicata effect, thus avoiding relitigation of issues in one State which have already been decided in another” … . “Absent a challenge to the jurisdiction of the issuing court, New York is required to give the same preclusive effect to a judgment from another state as it would have in the issuing state” … , and it is precluded from inquiring into the merits of the judgment … .

Here, the defendants did not challenge the jurisdiction of the California court, but instead, sought to relitigate the merits underlying that court’s determination. The Supreme Court should not have considered the defendants’ attack on the merits of the California determination. Balboa Capital Corp. v Plaza Auto Care, Inc., 2019 NY Slip Op 08645, Second Dept 12-4-19

 

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ZONING LAWS WHICH PROHIBITED DEFENDANT FROM USING HIS RURAL-DISTRICT LAND TO HOST A LARGE, THREE-DAY MUSIC AND CAMPING EVENT DID NOT VIOLATE HIS FIRST AMENDMENT RIGHTS AND WERE NOT VOID FOR VAGUENESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that the town zoning laws which prohibited a landowner from holding a three-day music and camping on his rural property did not unconstitutionally restrict his First Amendment rights and were not void for vagueness:

Defendant Ian Leifer owns a 68-acre property containing a single-family home and undeveloped land within the boundaries of plaintiff Town of Delaware. In 2016, he planned to sponsor on the property a three-day event named “The Camping Trip” — which he had hosted twice before in previous years — over the course of an August weekend. … Meals would be provided at the site through food truck vendors and a religious nonprofit organization would lead in Jewish religious ceremonies. … [P]reparations included off-site parking at a local school and rental of shuttle buses to transport attendees to the event site, a party tent for inclement weather, security at both the parking lot and event, $2,000,000 event insurance, 16 portable toilets, a 30-cubic-yard dumpster, EMTs on site and an ambulance on standby. * * *

None of the principal or accessory uses specifically permitted in the Rural District encompass defendant’s three-day outdoor music and camping festival. Such an event cannot reasonably be characterized as a customary accessory use associated with defendant’s single-family residence. … [U]nless the provisions are unconstitutional, his proposed use is clearly prohibited in the Rural District under the Town of Delaware Zoning Law and the Town was entitled to enjoin the event … . * * *

Defendant’s constitutional challenges … largely focus on a single land use defined in the Zoning Law that is prohibited in the Rural District but permitted in other zoning districts: the “theater” land use. This approach misses the mark because the Town did not rely exclusively on the theater provision but cited the Zoning Law as a whole to show that certain uses are prohibited in a Rural District but expressive aspects of the event, such as the musical presentations, are permitted in other districts. Considering this context, neither the theater provision, nor the Zoning Law as a whole, violates defendant’s constitutional rights. Town of Del. v Leifer, 2019 NY Slip Op 08446, CtApp 11-21-19

 

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TRIAL JUDGE SHOULD NOT HAVE LIMITED DEFENSE CROSS-EXAMINATION OF A WITNESS TESTIFYING ABOUT DNA TRANSFER, AND SHOULD NOT HAVE INSTRUCTED THE JURY TO ACCEPT A POLICE OFFICER’S EXPLANATION, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge should not have limited cross-examination of the prosecution’s witness about DNA transfer, and should not have instructed the jury, during defense counsel’s summation, to accept the testimony of a prosecution witness:

… [T]he defendant’s contention that his right to confrontation was violated when the Supreme Court limited cross-examination of a prosecution witness on the issue of DNA transfer is preserved for appellate review  … . Furthermore, the court’s limitation of defense counsel’s cross-examination with regard to DNA transfer was an improvident exercise of discretion, since the testimony defense counsel sought to elicit would have been relevant and would not have confused or misled the jury … . Moreover, under the circumstances presented, the error was not harmless, as there is a reasonable possibility that the error contributed to the defendant’s convictions … .

We also agree with the defendant’s contention that his right to a fair trial was violated when, during summation, defense counsel attacked the credibility of the testimony of certain police officers regarding wanted posters, and the Supreme Court instructed the jury, “there was testimony on that. The jurors will be bound by its recollection of the testimony and the explanation.” Since a “jury is presumed to follow the court’s instructions” … , the court’s instruction, which bound the jury to accept the officer’s explanation, rather than to rely on its recollection of the testimony and the evidence, was erroneous. People v Kennedy, 2019 NY Slip Op 07899, Second Dept 11-6-19

 

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TRIAL JUDGE PROPERLY REFUSED TO COMPEL THE WITNESS WHO ASSERTED HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION TO TESTIFY OR TO ASSERT THE PRIVILEGE IN FRONT OF THE JURY (THIRD DEPT).

The Third Department determined the trial judge properly refused to compel a witness (Chandler, an accomplice in the defendant’s offenses) who asserted his Fifth Amendment privilege against self-incrimination to testify or to assert the privilege in the presence of the jury:

Chandler — who had entered a guilty plea, but was awaiting sentencing — was produced in court. Outside the presence of the jury, Chandler’s counsel indicated that Chandler intended to exercise his privilege against self-incrimination based on the possibility that he could further incriminate himself, expose himself to perjury charges and/or provide testimony that could adversely impact his upcoming sentencing proceeding. Chandler confirmed under oath that he would invoke the privilege if called as a witness and, when questioned by defendant in the context of that inquiry, did in fact invoke the privilege. Supreme Court acknowledged that Chandler’s plea agreement was contingent upon “no information coming to the [c]ourt’s attention about prior criminal conduct that the [c]ourt did not know about.” Such unknown prior criminal conduct could potentially include crimes relating to defendant’s claim that Chandler coerced him into participating in the schemes to defraud. There was no basis for Supreme Court to conclude that Chandler’s “invocation of the privilege was clearly contumacious, nor was it patently clear that [Chandler’s testimony] could not subject him to prosecution” … . Accordingly, we discern no abuse of discretion in Supreme Court’s refusal to compel Chandler to testify or to require him to assert the privilege in the presence of the jury … . Although defendant certainly had the right to call witnesses and present a defense, he had “no right to compel testimony over a claim of recognized privilege” … . People v Jones, 2019 NY Slip Op 07647, Third Dept 10-24-19

 

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PLAINTIFF DID NOT HAVE STANDING TO CONTEST THE TOWN’S NEGATIVE DECLARATION PURSUANT TO SEQRA RE THE PROPOSED SEWER DISTRICT; PLAINTIFF’S ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 AND WAS THEREFORE TIME-BARRED; PLAINTIFF DID NOT HAVE A FIRST AMENDMENT RIGHT TO A RESPONSE TO HIS COMPLAINT TO THE TOWN RE THE SEWER DISTRICT (THIRD DEPT).

The Third Department determined plaintiff did not have standing to contest the negative declaration issued by the town under the State Environmental Quality Review Act (SEQRA) because the sewer construction approved by the town was 15 miles from plaintiff’s property. The Third Department further found that plaintiff’s actions should have been brought as an Article 78 and therefore was time-barred, and his First Amendment arguments, alleging the town should have responded to his “Petition for the Redress of Grievances Regarding the Proposed [sewer district].” were meritless:

Plaintiff does not have standing to raise the SEQRA claims. “In land use matters especially, [the Court of Appeals] ha[s] long imposed the limitation that the plaintiff, for standing purposes, must show that [he or she] would suffer direct harm, injury that is in some way different from that of the public at large [and] [t]his requirement applies whether the challenge to governmental action is based on a SEQRA violation, or other grounds” … .Plaintiff does not reside in the Town. Although his homestead apparently straddles the Town line such that 1.2 acres of his land is situated in the Town, his property is located outside of — and approximately 15 miles away from — the sewer district. Moreover, plaintiff’s status as a taxpayer, by itself, does not grant him standing to challenge the establishment of the sewer district … . …

Plaintiff’s SEQRA challenge is also time-barred. Regardless of how a plaintiff may label or style his or her claim, courts must look to the core of the underlying claim and the relief sought and, if the claim could have been properly addressed in the context of a CPLR article 78 proceeding, a four-month statute of limitations will apply … . * * *

… [T]he First Amendment does not “guarantee[] a citizen’s right to receive a government response to or official consideration of a petition for redress of grievances” … . Schulz v Town Bd. of the Town of Queensbury, 2019 NY Slip Op 07667, Third Dept 10-24-19

 

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THE SECOND TRIAL VIOLATED THE DOUBLE JEOPARDY PROHIBITION; THE FIRST TRIAL COULD HAVE CONTINUED WITH ELEVEN JURORS AFTER A JUROR WAS DISQUALIFIED DURING DELIBERATIONS (SECOND DEPT).

The Second Department, after the second trial was finished, determined that the second trial violated the double jeopardy prohibition. In the first trial, a juror talked to an attorney about the evidence and, during deliberations, told the other jurors what the attorney said. That juror was disqualified. The People moved for a mistrial. The defendant opposed and was willing to proceed with eleven jurors. The judge declared a mistrial:

When a mistrial is declared without the consent of or over the objection of a defendant, a retrial is precluded unless ” there was manifest necessity for the mistrial or the ends of public justice would be defeated'” … . …

… [T]he People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the Supreme Court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated his desire to waive trial by a jury of 12 individuals and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals … . Under the circumstances presented, as urged by defense counsel, it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict … . Moreover, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted “evidence” and whether such an instruction could have cured the impropriety … . Accordingly, there was an insufficient basis in the record for the declaration of a mistrial, and thus, a retrial was precluded. People v Smith, 2019 NY Slip Op 07622, Second Dept 10-23-19

 

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CONDITION OF PAROLE THAT PETITIONER NEVER ENTER QUEENS COUNTY WITH NO PROVISION FOR OBTAINING PERMISSION TO TRAVEL THERE VIOLATED PETITIONER’S RIGHT TO TRAVEL AND RIGHT TO ASSOCIATE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the condition of petitioner’s post release supervision prohibiting him from entering Queens County (where the assault victim resides), without any option to travel there with permission, violated petitioner’s right to travel and right to associate and was arbitrary and capricious:

Release conditions that implicate certain fundamental rights, such as the right to travel and the right to associate, have been held permissible as long as “reasonably related” to a petitioner’s criminal history and future chances of recidivism … .

The special condition, as noted, provides, “I will not leave New York City . . . [including Queens] without written permission from my parole officer (including work purposes). I understand that I am not to travel under any circumstances to the borough of Queens.” Barring petitioner from the entire county of Queens under all circumstances, without any clear right to seek, or ability to obtain, a waiver from respondents, is a categorical ban impinging upon his rights to travel and association, and, for this reason alone, the travel restriction must be vacated as arbitrary and capricious, as it is not “reasonably related” to petitioner’s criminal history and future chances of recidivism … .

Accordingly, we remand this matter for respondents to issue a new travel restriction. The restriction must be clear and “reasonably related” to petitioner’s criminal history and future chance of recidivism … . Unlike the vacated restriction, the new restriction should specify that any travel restrictions are subject to case-by-case exceptions for legitimate reasons, which petitioner may request from his parole officer. Matter of Cobb v New York State Dept. of Corr. & Community Supervision, 2019 NY Slip Op 07480, First Dept 10-17-19

 

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A SUPERIOR COURT INFORMATION CANNOT INCLUDE A JOINABLE OFFENSE WHICH IS GREATER IN DEGREE THAN THE OFFENSE FOR WHICH THE DEFENDANT WAS HELD FOR THE ACTION OF THE GRAND JURY (THIRD DEPT).

The Third Department, resolving a question of first impression, determined that a Superior Court Information (SCI) is jurisdictionally defective if it charges a joinable offense which is greater in degree than the offense for which the defendant was held for the action of the grand jury. The jurisdictional question survives the guilty plea, the failure to preserve and the waiver of appeal:

… [T]he constitutional waiver provision makes no reference to joinable offenses, providing only that prosecution by an SCI is limited to an offense or offenses for which a person is ‘held for the action of a grand jury upon a charge for such an offense’ (NY Const, art I, § 6 … ). A literal interpretation of the phrase ‘any offense or offenses properly joinable therewith’ in CPL 195.20 would permit the circumvention of this constitutional imperative by the simple expedient of permitting the inclusion of joinable offenses in a higher degree or grade that were never charged in a felony complaint. Such a statutory interpretation is inconsistent with and undermines the protections provided in NY Constitution, article I, § 6. It is well settled ‘that the Legislature in performing its law-making function may not enlarge upon or abridge the Constitution’ … , and that “courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional” … .

Applying these principles, we conclude that a joinable offense may not be included in a waiver of indictment and SCI unless that offense, or a lesser included offense, was charged in a felony complaint and the defendant was therefore held for the action of a grand jury upon that charge … . People v Coss, 2019 NY Slip Op 07445, Third Dept 10-17-19

 

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