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DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over a two-justice dissent, determined the action stemming from plaintiff church’s defrocking and ejecting defendant nun from a convent was not justiciable in the New York courts because inquiry into religious doctrine or practice was required. Defendant nun had complained about sexual harassment by a priest and alleged she was retaliated against by the plaintiff church:

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” … . A court may, however, properly preside over a dispute involving a religious body only when the dispute may be resolved utilizing neutral principles of law … .

Here, the summary proceedings for eviction and the action, inter alia, for ejectment are inextricably intertwined with the determinations of the ecclesiastical court, particularly its 2008 determination defrocking the defendant and ordering her to vacate the convent. Therefore, this consolidated action involves review of an ecclesiastical determination that may not be resolved by resort to neutral principles of law … . Moreover, this matter does not involve a purely religious determination requiring this Court to accept the actions of the ecclesiastical court as final and binding … . Russian Orthodox Convent Novo-Diveevo, Inc. v Sukharevskaya, 2018 NY Slip Op 08167, Second Dept 11-28-18

RELIGION (DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))/CIVIL PROCEDURE (RELIGION, (DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))/FIRST AMENDMENT (RELIGION, DISPUTE BETWEEN THE CHURCH AND THE NUN WHO WAS DEFROCKED AND EJECTED FROM THE CONVENT IS NOT JUSTICIABLE IN NEW YORK COURTS UNDER THE FIRST AMENDMENT (SECOND DEPT))

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CONVICTION AFFIRMED BUT STRONG DISSENT ARGUED DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AND WAS DENIED A FAIR TRIAL BECAUSE HE WORE THE SAME PRISON-ISSUE CLOTHES FOR EIGHT DAYS (SECOND DEPT

The Second Department, over a detailed and comprehensive dissent (worth reading), affirmed defendant’s attempted murder conviction. The dissent made it clear there was a strong right to counsel issue that, because it involved facts that are not on the record, must be brought in a motion to vacate the conviction. The dissent also argued defendant was deprived of a fair trial because he appeared in the same prison-issue clothes for eight days:

From the Dissent:

Since the Supreme Court was informed at the time of arraignment in Queens County that the defendant had established an attorney-client relationship with Eaddy in both the Kings County and Queens County cases, it was incumbent upon the court to assign her as counsel unless she was not ready, willing, or able to accept the assignment… . At the time of arraignment, there was no risk that Eaddy’s participation would have delayed or disrupted the proceedings, created any conflict of interest, or resulted in prejudice to the prosecution or the defense. To the contrary, Eaddy’s familiarity with the defendant and the case, as well as the defendant’s preference for her as his assigned counsel, would most likely have expedited matters. Indeed, the attorney who was assigned to represent the defendant at the arraignment, Siff, was eventually discharged in March 2011 and replaced with Coppin, with whom the defendant expressed dissatisfaction and requested further substitution.

Instead of inquiring as to Eaddy’s availability at the time of arraignment, the Supreme Court summarily denied the defendant’s request for the constitutionally impermissible reason that the defendant was too indigent to pay for her services  … . * * *

Here, there is no question that the clothing worn by the defendant was prison-issued clothing. The defendant wore the same green top and bottom for three days of jury selection and more than five days of trial testimony. Even the Supreme Court described the defendant’s clothing as “that thing.” Based upon the description of the clothes and the fact that the defendant wore the same clothes for at least eight days, a reasonable juror could only conclude that the clothing was prison garb. Given the defendant’s objection to wearing dirty prison clothes, I conclude that he preserved his contention for appellate review, and that, as a matter of law, he was deprived of a fair trial … . People v Ellis, 2018 NY Slip Op 08143, Second Dept 11-28-18

CRIMINAL LAW (CONVICTION AFFIRMED BUT STRONG DISSENT ARGUED DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AND WAS DENIED A FAIR TRIAL BECAUSE HE WORE THE SAME PRISON-ISSUE CLOTHES FOR EIGHT DAYS (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, CONVICTION AFFIRMED BUT STRONG DISSENT ARGUED DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AND WAS DENIED A FAIR TRIAL BECAUSE HE WORE THE SAME PRISON-ISSUE CLOTHES FOR EIGHT DAYS (SECOND DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW, CONVICTION AFFIRMED BUT STRONG DISSENT ARGUED DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AND WAS DENIED A FAIR TRIAL BECAUSE HE WORE THE SAME PRISON-ISSUE CLOTHES FOR EIGHT DAYS (SECOND DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, TRIALS, PRISON CLOTHES, CONVICTION AFFIRMED BUT STRONG DISSENT ARGUED DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AND WAS DENIED A FAIR TRIAL BECAUSE HE WORE THE SAME PRISON-ISSUE CLOTHES FOR EIGHT DAYS (SECOND DEPT))/CLOTHES (CRIMINAL LAW, TRIALS, CONVICTION AFFIRMED BUT STRONG DISSENT ARGUED DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AND WAS DENIED A FAIR TRIAL BECAUSE HE WORE THE SAME PRISON-ISSUE CLOTHES FOR EIGHT DAYS (SECOND DEPT))

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EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP).

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Stein, over two separate dissenting opinions, determined that the potential penalty of deportation entitles a defendant to a jury trial, even if, as here, the charges are B misdemeanors which are triable without a jury pursuant to Criminal Procedure Law 340.40:

The Sixth Amendment of the United States Constitution guarantees that a defendant will be judged by a jury of peers if charged with a serious crime. Today, as a matter of first impression, we hold that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation—i.e. removal from the country—is entitled to a jury trial under the Sixth Amendment. * * *

Defendant argues that, although the Sixth Amendment right to a jury trial did not automatically attach to the crimes with which he was charged because they are punishable by less than a six-month term of incarceration, he met his burden of establishing that the crimes carry an additional penalty beyond incarceration—namely, deportation—which he contends is a sufficiently severe penalty to rebut the presumption that the crimes are petty for Sixth Amendment purposes. We agree. People v Suazo, 2018 NY Slip Op 08056, CtApp 11-27-18

CRIMINAL LAW (JURY TRIALS, EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))/JURY TRIALS (CRIMINAL LAW,  EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))/CONSTITUTIONAL LAW (CRIMINAL LAW, JURY TRIALS, EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))/IMMIGRATION LAW (CRIMINAL LAW, JURY TRIALS, EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))

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THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the denial of defendant’s request to present an alibi witness was reversible error, despite the fact that a notice of alibi had not been served. The People had opened the door at trial, creating the need to call the alibi witness:

Pursuant to CPL 250.20 (3), “[i]f at the trial the defendant calls such an alibi witness without having served the demanded notice of alibi, . . . the court may exclude any testimony of such witness relating to the alibi defense.” Precluding a criminal defendant from proffering evidence in support of his or her own case implicates the Compulsory Process Clause of the Sixth Amendment… , and, although CPL 250.20 (3) explicitly states that the trial court’s decision to permit a late notice of alibi is discretionary, preclusion is only an appropriate penalty “in the most egregious circumstances”… . When a defendant’s “omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Compulsory Process Clause simply to exclude the witness'[s] testimony”… .

… [A]lthough defendant did not serve an alibi notice in response to the People’s demand for same, defendant did not intend to call an alibi witness except that the People — knowing that defendant had testified to having an alibi during the grand jury but that he had not presented that defense at trial — directly elicited testimony … about what defendant was doing on the night of the shooting. In response to follow-up questions by the People, [the witness] provided the alibi witness’s first name and generally discussed that defendant was friends with this person. The People’s question regarding what defendant was doing the night of the shooting was the first reference to defendant’s alibi during the trial, and defendant thereafter sought permission to call his friend … as a witness for the first time. The People, despite raising and pursuing this line of questioning, objected because defendant had not served an alibi notice. Defendant argued that the People opened the door and created the issue and, as a result, defendant should not be precluded from calling Steward. We agree. People v Perkins, 2018 NY Slip Op 07972, Third Dept 11-21-18

CRIMINAL LAW (THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, ALIBI WITNESS, (THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, COMPULSORY PROCESS CLAUSE, THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/COMPULSORY PROCESS CLAUSE (CRIMINAL LAW, ALIBI WITNESS, THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))/ALIBI WITNESS (THE PEOPLE OPENED THE DOOR AT TRIAL CREATING THE NEED FOR DEFENDANT TO CALL AN ALIBI WITNESS FOR WHOM THE DEFENDANT HAD NOT SERVED A NOTICE, THE DENIAL OF THE REQUEST IMPLICATED THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT AND CONSTITUTED REVERSIBLE ERROR (THIRD DEPT))

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PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT).

The Second Department, reversing the Commissioner of the New York State Office of Temporary and Disability Assistance, determined the Nassau County Department of Social Services’ notice to petitioner of the termination of her public assistance benefits was defective and violated her right to due process. The notice did not include any specific instance of a refusal to cooperate with the employment training program, and the subsequent hearing considered evidence not mentioned in the notice:

A local agency may not discontinue a recipient’s public assistance benefits unless the recipient’s failure to comply with one of the department’s work rules is found to be willful and without good cause” (,,,see Social Services Law § 341[1]). A social services agency is required to provide an individual whose public assistance benefits are being discontinued with written notice that includes “the specific instance or instances of willful refusal or failure to comply without good cause” with employment requirements (Social Services Law § 341[1][b]). “A notice specifying the wrong charge as the basis for a reduction in benefits does not comply with the regulatory standard, nor with the constitutional standards of due process”… .

Here, the petitioner correctly contends that the agency’s notice was defective because it did not include any specific instances of her willful refusal without good cause to cooperate with the employment training program … . Additionally, at the fair hearing, the agency offered evidence that the petitioner submitted a falsified timesheet indicating that she continued to attend training after her participation in the program was terminated, a charge not included in the notice. Accordingly, because the notice lacked specificity and failed to adequately advise the petitioner of the issues which were the subject of the hearing, the notice violated the petitioner’s right to due process of law … . Matter of Pearl v Imhof, 2018 NY Slip Op 08024, Second Dept 11-21-18

SOCIAL SERVICES LAW (PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))/MUNICIPAL LAW (SOCIAL SERVICES LAW, PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))/CONSTITUTIONAL LAW  (SOCIAL SERVICES LAW, PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))/EVIDENCE (SOCIAL SERVICES LAW, PUBLIC ASSISTANCE BENEFITS, NOTICE, HEARING, PETITIONER’S PUBLIC ASSISTANCE BENEFITS SHOULD NOT HAVE BEEN TERMINATED, NOTICE DID NOT SPECIFY SPECIFIC INSTANCES OF A FAILURE TO COOPERATION WITH EMPLOYMENT TRAINING AND SOME EVIDENCE PRESENTED AT THE HEARING WAS NOT INCLUDED IN THE NOTICE, PETITIONER’S DUE PROCESS RIGHTS WERE VIOLATED (SECOND DEPT))

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MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION NOT GRANTED (FIRST DEPT).

The First Department determined the criteria for prior restraint of speech were not met in this action to impose a preliminary injunction and temporary restraining order prohibiting the publishing of accusations against plaintiff and offensive images on defendants’ website:

Plaintiff, a law professor, sat on the appellate panel of the Financial Industry Regulatory Authority, Inc. (FINRA) that affirmed the lifetime ban imposed on two stockbrokers, nonparties Talman Harris and William Scholander. Defendants allegedly control a website known as TheBlot, a tabloid-style platform that has published a substantial quantity of material attacking FINRA’s ban of Harris and Scholander and the FINRA personnel, including plaintiff, who were involved in adjudicating that case. The attacks on plaintiff have included — in addition to name-calling, ridicule and various scurrilous accusations — juxtapositions of plaintiff’s likeness to graphic images of the lynching of African Americans, and statements that the banning of Harris, who is African American, constituted a “lynching.”

In this action, plaintiff, who is also African American, seeks, as here relevant, an injunction against the posting on TheBlot of material attacking or libeling him. In this regard, he argues that the lynching images posted alongside photographs of him on TheBlot should be understood as a threat of violence against himself. …

… [T]he preliminary injunction can be affirmed only if it enjoins a “true threat” against plaintiff … . We find, however, that the speech at issue, as offensive as it is, cannot reasonably be construed as truly threatening or inciting violence against plaintiff. Rather, the lynching imagery at issue was plainly intended to draw a grotesque analogy between lynching and FINRA’s banning of Harris, who is an African American (and is identified as such in the posts) … . While this analogy is incendiary and highly inappropriate, plaintiff has not established that any reasonable viewer would have understood the posts as threatening or calling for violence against him. Moreover, even if the posts could reasonably be construed as advocating unlawful conduct, plaintiff has not established that any “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” … . Brummer v Wey, 2018 NY Slip Op 07843, First Dept 11-15-18

DEFAMATION (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/CIVIL PROCEDURE (DEFAMATION, PRELIMINARY INJUNCTION, (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/CONSTITUTIONAL LAW (FREE SPEECH, PRIOR RESTRAINT, MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/FREE SPEECH (PRIOR RESTRAINT, (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/PRIOR RESTRAINT (FREE SPEECH, (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))

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CPLR 8501 AND 8503, WHICH REQUIRE AN OUT OF STATE LITIGANT TO POST SECURITY FOR COSTS IN CASE THE NONRESIDENT LOSES THE CASE, DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, determined that CPLR 8501 (a) and 8503, which require an out-of-state litigant to post a minimum of $500 security for costs in case the nonresident loses, does not violate the Privileges and Immunities Clause:

When plaintiff commenced this personal injury action, she was a New York resident. Plaintiff then relocated to Georgia, prompting defendants to move, pursuant to CPLR 8501 (a) and 8503, for an order compelling plaintiff—a nonresident at the time the motion was made—to post a minimum of $500 security for costs in the event she lost the case (see CPLR 8101). Defendants also requested a stay of the proceedings pursuant to CPLR 8502 until plaintiff complied with the order. In opposition, plaintiff argued that CPLR 8501 (a) and 8503 were unconstitutional because they violate the Privileges and Immunities Clause of the Federal Constitution by impairing nonresident plaintiffs’ fundamental right of access to the courts.

Supreme Court granted defendants’ motion, opining that although access to the courts is a fundamental right protectable under the Privileges and Immunities Clause, CPLR 8501 (a) and 8503 do not bar access to the courts … . Supreme Court further stated that security for costs provisions are common nationwide … .

The Appellate Division unanimously affirmed. The court held that CPLR article 85 satisfied the standard set forth by the United States Supreme Court in Canadian Northern R.R. Co. v Eggen (252 US 553 [1920]), and re-affirmed in McBurney v Young (569 US 221 [2013]), that nonresidents must be given “access to the courts of the state upon terms which in themselves are reasonable and adequate for the enforcing of any rights [they] may have” … . On that basis, the Appellate Division held that “the challenged statutory provisions do not deprive noncitizens of New York of reasonable and adequate access to New York courts” … . … [[W]e … affirm. Clement v Durban, 2018 NY Slip Op 07693, CtApp 11-14-18

CIVIL PROCEDURE (CPLR 8501 AND 8503, WHICH REQUIRE AN OUT OF STATE LITIGANT TO POST SECURITY FOR COSTS IN CASE THE NONRESIDENT LOSES THE CASE, DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE (CT APP))/CPLR 8501, 8503 (CPLR 8501 AND 8503, WHICH REQUIRE AN OUT OF STATE LITIGANT TO POST SECURITY FOR COSTS IN CASE THE NONRESIDENT LOSES THE CASE, DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE (CT APP))/COSTS  (CPLR 8501 AND 8503, WHICH REQUIRE AN OUT OF STATE LITIGANT TO POST SECURITY FOR COSTS IN CASE THE NONRESIDENT LOSES THE CASE, DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE (CT APP))/CONSTITUTIONAL LAW (CPLR 8501 AND 8503, WHICH REQUIRE AN OUT OF STATE LITIGANT TO POST SECURITY FOR COSTS IN CASE THE NONRESIDENT LOSES THE CASE, DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE (CT APP))/PRIVILEGES AND IMMUNITIES CLAUSE (CPLR 8501 AND 8503, WHICH REQUIRE AN OUT OF STATE LITIGANT TO POST SECURITY FOR COSTS IN CASE THE NONRESIDENT LOSES THE CASE, DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE (CT APP))

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PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the proceeding which led to the revocation of appellant’s Adjournment in Contemplation of Dismissal (ACD) and adjudging him a person in need of supervision (PINS) was fatally flawed because appellant was never informed of his right to remain silent:

Although the appellant’s term of custody has expired by the terms of the order appealed from, the order is not academic in light of the enduring consequences which might flow from the finding that the appellant violated the terms of the ACD order … .

Family Court Act § 741(a) provides, in relevant part: “[a]t the initial appearance of a respondent in a proceeding and at the commencement of any hearing under this article, the respondent and his or her parent or other person legally responsible for his or her care shall be advised of the respondent’s right to remain silent” … . The failure to apprise a respondent of the right to remain silent constitutes reversible error, even if the respondent consents to the disposition in the presence of counsel … or fails to seek to withdraw his or her admissions based on the failure … .

Here, the Family Court never apprised the appellant of his right to remain silent—not at the initial appearance on the PINS petition, nor prior to accepting his admission to the allegations in the petition and entering the ACD order, nor at the fact-finding and dispositional hearing … , addressing the alleged violation of the ACD order. The court’s failure to advise the appellant of his right to remain silent cannot be considered harmless error … , as the court never advised the appellant of his right to remain silent at any time during the course of this proceeding or the original PINS proceeding. Thus, the order must be reversed … . Matter of Tyler D., 2018 NY Slip Op 07427, Second Dept 11-7-18

FAMILY LAW (PINS, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/PERSON IN NEED OF SUPERVISION (PINS) (PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/CONSTITUTIONAL LAW (FAMILY LAW, RIGHT TO REMAIN SILENT, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))/RIGHT TO REMAIN SILENT (FAMILY LAW, PINS, PROCEEDING LEADING TO THE REVOCATION OF APPELLANT’S ADJOURNMENT IN CONTEMPLATION OF DISMISSAL (ACD) AND ADJUDGING HIM A PERSON IN NEED OF SUPERVISION (PINS) FATALLY FLAWED BECAUSE APPELLANT WAS NEVER TOLD OF HIS RIGHT TO REMAIN SILENT (SECOND DEPT))

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MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two judge dissent, determined that missing the deadline for filing an application for leave to appeal to the Court of Appeals does not deprive defendant of his or her constitutional right to effective assistance of counsel or due process. Therefore the defendant is not entitled to a writ of error coram nobis or an exception to the time limits in Criminal Procedure Law 460.30:

In People v Andrews (23 NY3d 605, 616 [2014]), we held that counsel’s failure to file a timely criminal leave application (CLA) to this Court within the thirty-day statutory time frame provided by CPL 460.10 (5) (a), or move pursuant to CPL 460.30 within the one-year grace period for an extension to cure the error, does not deprive a defendant of a constitutional right to the effective assistance of counsel or due process under the Sixth and Fourteenth Amendments of the United States Constitution. In the absence of a constitutional violation, a defendant cannot resort to coram nobis to abrogate the one-year time limitation on the remedy provided in CPL 460.30 for the improper conduct of his or her attorney in failing to file a timely CLA. We left open the question of whether a more protective rule should be recognized under the New York State Constitution (id. at 616). Today, we hold the same rule applies under article I, section 6 of the New York State Constitution. Thus, defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a CLA seeking leave to appeal to this Court. * * *

Given our history paralleling our jurisprudence with that of the federal courts in affording defendants meaningful review on appeals, and without any reason to deviate from that tradition today, we hold that there is no state constitutional right to legal representation on an application for leave to appeal to this Court. People v Grimes, 2018 NY Slip Op 07038, CtApp 10-23-18

CRIMINAL LAW (MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/APPEALS (CRIMINAL LAW, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/ATTORNEYS (CRIMINAL LAW, APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/RIGHT TO COUNSEL (APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/CONSTITUTIONAL LAW (CRIMINAL LAW, APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/CORAM NOBIS (MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))/INEFFECTIVE ASSISTANCE (APPEALS, MISSING THE DEADLINES FOR APPLYING FOR LEAVE TO APPEAL TO THE COURT OF APPEALS DOES NOT GIVE RISE TO A WRIT OF ERROR CORAM NOBIS OR AN EXCEPTION TO CPL 460.30 BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL OR A VIOLATION OF DUE PROCESS (CT APP))

, ,

DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined that the hard caps imposed by Department of Health (DOH) regulations on the executive compensation and administrative expenditures by healthcare providers receiving public funds were properly promulgated. Another regulation which sought to impose a soft cap was deemed to have exceeded the regulatory powers of the DOH. The court’s anlaysis applied the Boreali factors which address the line between administrative rule-making and legislative policy-making (separation of powers):

In totality, following consideration of the Boreali factors, we are unconvinced that, in adopting the hard cap regulations, DOH exceeded its regulatory authority. The Legislature expressed a policy goal — that state healthcare funds should be expended in the most efficient and effective manner to maximize the quality and availability of public care — and the hard cap regulations, which focus exclusively on the appropriate use of state funds, are directly tied to that goal without improperly subverting it in favor of unrelated public policy interests … . * * *

… [T]he soft cap regulation cannot be said to here “fill in details of a broad policy.” Rather than determining the best way to regulate toward the legislative goal identified in its enabling legislation (i.e., using state funds to purchase affordable, quality care) with respect to the soft cap DOH appears to have envisioned an additional goal of limiting executive compensation as a matter of public policy and regulated to that end. Thus, we agree with the conclusion of the courts below that the soft cap regulation was promulgated in excess of DOH’s administrative authority. Matter of LeadingAge N.Y., Inc. v Shah, 2018 NY Slip Op 06965, CtApp 10-18-18

ADMINISTRATIVE LAW (DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/CONSTITUTIONAL LAW (SEPARATION OF POWERS, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/EMPLOYMENT LAW (EXECUTIVE COMPENSATION, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/EXECUTIVE COMPENSATION (HEALTHCARE PROVIDERS, (DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/BOREALI FACTORS (ADMINISTRATIVE LAW, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/REGULATIONS (ADMINISTRATIVE LAW, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))/DEPARTMENT OF HEALTH (ADMINISTRATIVE LAW, DEPARTMENT OF HEALTH REGULATIONS PLACING HARD CAPS ON EXECUTIVE COMPENSATION AND ADMINISTRATIVE EXPENDITURES BY HEALTHCARE PROVIDERS RECEIVING PUBLIC FUNDS PROPERLY PROMULGATED (CT APP))

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