Constitutional Law – Page 38 – New York Appellate Digest

Constitutional Law, Criminal Law, Evidence

ENTIRE JURY PANEL SHOULD NOT HAVE BEEN DISMISSED BASED UPON AN INTERACTION BETWEEN ONE POTENTIAL JUROR AND DEFENDANT’S BROTHER, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the entire first jury panel should not have been dismissed because of an interaction between one of the potential jurors and defendant’s brother. The decision dealt substantively with several other issues: (1) affirming the denial of defendant’s speedy trial motion; (2) finding the prosecution’s failure to produce the Miranda card was not a Rosario violation and an adverse inference jury charge was an appropriate sanction; and (3) finding that the DNA evidence introduced by a witness who did not participate in the testing procedures violated defendant’s right to confront the witnesses against him:

The Supreme Court granted the prosecutor’s application to dismiss the entire jury panel, concluding that the defendant’s brother had potentially tainted the entire panel. Significantly, the court did not first conduct an inquiry of the potential jurors as to what they had seen and as to whether they could remain impartial. Where, as here, a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” … . By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial … , the court deprived the defendant of a jury chosen “at random from a fair cross-section of the community” … .

… [T]he DNA profiles and reports produced from the testing of evidence recovered from the decedent’s home, including the defendant’s clothing, are testimonial, because such profiles and reports “were generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of [that] defendant,” and because all of the documents in the file of the Office of the Chief Medical Examiner refer to the defendant by name and label him a “suspect” … . … [T]he admission of such evidence violated the defendant’s confrontation right, because it was admitted upon the testimony of an analyst who did not perform, witness, or supervise the generation of the defendant’s DNA profile, or perform an independent analysis on the raw data … . People v Metellus, 2018 NY Slip Op 00312, Second Dept 1-17-18

CRIMINAL LAW (ENTIRE JURY PANEL SHOULD NOT HAVE BEEN DISMISSED BASED UPON AN INTERACTION BETWEEN ONE POTENTIAL JUROR AND DEFENDANT’S BROTHER, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/JURORS (CRIMINAL LAW, ENTIRE JURY PANEL SHOULD NOT HAVE BEEN DISMISSED BASED UPON AN INTERACTION BETWEEN ONE POTENTIAL JUROR AND DEFENDANT’S BROTHER, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/DNA (CRIMINAL LAW, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/CONFRONTATION, RIGHT TO (CRIMINAL LAW, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))/CONSTITUTIONAL LAW (RIGHT TO CONFRONTATION, DNA EVIDENCE SHOULD NOT HAVE BEEN ADMITTED THROUGH A WITNESS THAT HAD NO CONNECTION WITH THE TESTING (SECOND DEPT))

January 17, 2018

Administrative Law, Constitutional Law, Education-School Law

PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department, reversing SUNY Plattsburgh’s dismissal of petitioner-student, over a two-justice partial dissent, determined that a new disciplinary hearing was required because the Title IX Coordinator’s (Butterfly Blaise’s) testimony at the hearing reflected a misunderstanding of how consent to sex can be communicated. The facts of the sexual encounter between petitioner and the “reporting individual,” another student, were presented at the hearing by Blaise because, by statute, the reporting individual can decide whether or not to participate in the hearing. The dissenting justices argued that the petitioner was denied his due process right to cross-examine the reporting individual and the determination should be annulled and expunged. The majority found that the procedure employed by the college, including notice of the charges, comported with the controlling “Enough is Enough Law” and due process. The decision goes through all the arguments made by petitioner, which are substantive and well worth reading, but which cannot be fairly summarized here. With respect to the evidence of consent, the court wrote:

During the hearing, petitioner asked Blaise to define affirmative consent and she read the statutory definition, including that “consent can be given by words or actions as long as those words or actions create clear permission regarding willingness to engage in sexual activity.” Petitioner then asked, “So affirmative consent can be implied or referred [sic] from conduct?”, and Blaise responded, “[O]nly if the direct question is: Can I have sex with you? So you must ask directly what it is that you want to do to that person. . . . And the answer affirmatively must be yes.” This explanation was incorrect. The error was compounded when petitioner next inquired whether the consent standard applied to both parties, and Blaise explained that the obligation applied to the person initiating the sexual activity. When petitioner asked, “How do you define initiation?”, Blaise explained “that you initiated sexual intercourse by penetrating her.” This, too, was erroneous for the concepts of consent and initiation pertain to either verbal communication or the conduct between the participants, not simply the physical act of penetration.

Blaise’s mistakes raise a concern with regard to the Board’s determination, which was, simply, that petitioner was responsible for violating the Student Conduct Manual because he “initiated sexual intercourse with another student three different times without establishing affirmative consent.” By this determination, the Board failed to provide the requisite “findings of fact . . . [and] rationale for the decision and the sanction” (Education Law § 6444 [5] [b]). As a consequence of Blaise’s erroneous interpretations, we, like petitioner, are unable to discern whether the Board properly determined that petitioner initiated the sexual activity or even considered whether affirmative consent was given based on the reporting individual’s conduct. Matter of Jacobson v Blaise, 2018 NY Slip Op 00205, Third Dept 1-11-18

EDUCATION-SCHOOL LAW (COLLEGES, DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/ADMINISTRATIVE LAW (COLLEGES, DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/CONSTITUTIONAL LAW (COLLEGES, DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/COLLEGES AND UNIVERSITIES ( DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/ENOUGH IS ENOUGH LAW (COLLEGES, DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/DISCIPLINARY HEARINGS (COLLEGES, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))

January 11, 2018

Constitutional Law, Criminal Law

ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT).

The Second Department vacated defendant’s guilty plea because the record did not include a signed written waiver of indictment, as required by the NYS Constitution:

… [T]he record on appeal does not contain a signed waiver of the defendant’s right to be prosecuted by an indictment. Although a written waiver of indictment appears in the record, it was not signed by the defendant. Furthermore, contrary to the People’s contention, although the transcript of the plea proceedings indicates that the defendant signed a document denominated as a written indictment waiver, that reference in the transcript alone is insufficient to satisfy the constitutional requirement that a waiver of indictment “be evidenced by written instrument signed by the defendant” … . Since the failure to comply with this constitutional requirement amounts to a jurisdictional defect in the plea proceedings … . People v Eulo, 2017 NY Slip Op 08684, Second Dept 12-13-17

CRIMINAL LAW (WAIVER OF INDICTMENT, ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT))/CONSTITUTIONAL LAW (WAIVER OF INDICTMENT, ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT))/INDICTMENT, WAIVER OF (ABSENCE OF A SIGNED WRITTEN WAIVER OF INDICTMENT REQUIRED BY THE NYS CONSTITUTION IS A JURISDICTIONAL DEFECT, GUILTY PLEA VACATED (SECOND DEPT)

December 13, 2017

Animal Law, Civil Procedure, Constitutional Law

PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, upheld for the most part a preliminary injunction placing restrictions on protests by animal rights advocates against Central Park Sightseeing which operates horse-drawn carriages in New York City’s Central Park. The court found that Central Park Sightseeing was likely to prevail on its public nuisance and tortious interference with contract causes of action. The First Department modified the injunction’s “floating buffer zone” provision, paragraph 3, however:

The court granted plaintiff’s motion for a preliminary injunction to the extent of enjoining and restraining defendants “and/or anyone else who becomes aware of this Decision and Order” from

“1. physically blocking, impeding, or obstructing any persons from seeking or taking, or providing … a lawful horse-carriage ride disembarking from Central Park South …;

“2. physically touching, pushing, shoving, or grabbing any such persons or horses;

“3. yelling or shouting at, or aggressively accosting, any such persons, or any carriage horses, from a distance of less than nine feet (… three yards…);

“4. physically blocking, impeding, or obstructing the progress of any such horse-carriage ride;

“5. handing literature to persons situated within a horse carriage; and

“6. counseling, facilitating, aiding, or abetting any other person from doing such things.”

The court made it clear that “[b]oth sides agree that defendants can protest, including picket, hold signs, hand out literature, bear witness, and raise their voices,” noting that “the content of the speech is not at issue here; the manner of delivery is.” …

We … modify paragraph 3 of the injunction to prohibit any person from knowingly approaching within nine feet of another person in the loading/unloading zone, without that person’s consent, for the purpose of handing a leaflet or bill or displaying a sign or engaging in oral protest or education of such other person … . * * *

The nine-foot zone represents a “conversational distance,” allowing normal communication … . Central Park Sightseeing LLC v New Yorkers for Clean, Livable & Safe Sts., Inc., 2017 NY Slip Op 08619, First Dept 12-7-17

CONSTITUTIONAL LAW (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/ANIMAL LAW (ANIMAL RIGHTS, PUBLIC PROTESTS, FIRST AMENDMENT, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FREE SPEECH (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/CIVIL PROCEDURE (PRELIMINARY INJUNCTION, FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/INJUNCTION (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/BUFFER ZONE (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))

December 7, 2017

Civil Procedure, Constitutional Law

DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT).

The Second Department determined Supreme Court had jurisdiction to rule on a dispute among members of a religious corporation (Mandir). The dispute involved whether votes were cast by persons ineligible to vote for the board of trustees. The dispute could be resolved without the court’s intrusion into religious issues:

“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” … . However, “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” … .. In applying neutral principles of law, “courts may rely upon internal documents, such as a congregation’s bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine”… .

Here, resolution of the instant dispute, including determining whether any votes were cast by individuals who were not eligible to vote in the election, does not “require[ ] intrusion into constitutionally protected ecclesiastical matters”… .. Rather, this question may be resolved based upon neutral principles of law and reference to the secular provisions of the Mandir’s internal documents … . Queens Branch of the Bhuvaneshwar Mandir, Inc. v Sherman, 2017 NY Slip Op 08546, Second Dept 12-6-17

CIVIL PROCEDURE (RELIGIOUS CORPORATION, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGIOUS CORPORATION, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/RELIGION (CIVIL PROCEDURE, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))/CORPORATION LAW (RELIGIOUS CORPORATION, CIVIL PROCEDURE, DISPUTE ABOUT VOTES FOR THE BOARD OF TRUSTEES OF A RELIGIOUS CORPORATION PROPERLY RESOLVED BY THE COURTS, THE MATTER DID NOT REQUIRE CONSIDERATION OF RELIGIOUS ISSUES (SECOND DEPT))

December 6, 2017

Constitutional Law, Employment Law, Judges

STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP).

The Court of Appeals, in a per curiam opinion, with two concurring opinions, determined that the reduction in health benefits provided under the Civil Service Law did not violate the Judicial Compensation Clause of the NYS Constitution:

The issue presented on this appeal is whether Civil Service Law § 167 (8), as amended, authorizing a reduction of the State’s contribution to health insurance benefits for State employees, including members of the State judiciary, violates the Judicial Compensation Clause of the State Constitution … . We conclude the State’s contribution is not judicial compensation protected from direct diminution by the Compensation Clause, and the reductions in contributions do not have the effect of singling out the judiciary for disadvantageous treatment. Therefore, plaintiffs’ constitutional challenge fails. Bransten v State of New York, 2017 NY Slip Op 08168, CtApp 11-21-17

CONSTITUTIONAL LAW (NYS) (STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/JUDGES (CONSTITUTIONAL LAW, STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/JUDGES (STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/EMPLOYMENT LAW (JUDGES, STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/JUDICIAL COMPENSATION CLAUSE (NYS CONSTITUTION, STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))

November 21, 2017

Constitutional Law, Municipal Law

PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over two concurring opinions, answered two certified questions from the Second Circuit. The defendant in the federal suit is Battery Park City Authority (BPCA), a public benefit corporation, which was sued by plaintiffs alleging personal injury caused by 9-11 clean-up of properties owned by BPCA. The legislature had enacted an amendment to the General Municpal Law to allow the plaintiffs to file late notices of claim. BPCA successfully argued in federal district court that the amendment extending the time to file notices of claim was unconstitutional as applied. When the matter came before the Second Circuit on appeal, the Second Circuit asked the Court of Appeals to determine whether the BPCA should be treated like the state for purposes of the capacity to challenge a statute (answer: yes) and asked for clarification of the standard for analyzing due process in this context (answer: whether the statute was enacted as a reasonable response in order to remedy an injustice):

We … hold that, under the capacity rule, public benefit corporations have no greater stature to challenge the constitutionality of State statutes than do municipal corporations or other local governmental entities. Of course, our holding today does not mean that public benefit corporations can never raise such constitutional challenges; like municipalities, they may avail themselves of an exception to the general rule … . However, courts need not engage in a “particularized inquiry” to determine whether a public benefit corporation should first be treated like the State. Unlike in other contexts, for purposes of our capacity bar, every public benefit corporation is the State. * * *

… [A] claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice. Matter of World Trade Ctr. Lower Manhattan Disaster Site Litigation., 2017 NY Slip Op 08166, CtApp 11-21-17

MUNICIPAL LAW (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/CONSTITUTIONAL LAW (PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/9-11 (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/BATTER PARK CITY AUTHORITY (9-11 CLEANUP, (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/CAPACITY TO CHALLENGE STATUTE (PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))

November 21, 2017

Constitutional Law, Employment Law, Human Rights Law, Municipal Law

PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing in part Supreme Court, determined plaintiff’s complaint stated employment (sex and age) discrimination and retaliation causes of action pursuant to the NYC Human Rights Law, a notice of claim was required for the First Amendment violation cause of action against the city (plaintiff’s employer), and plaintiff’s motion to amend the complaint to state the First Amendment violation cause of action pursuant to 18 USC 1983 (which does not require a notice of claim) should have been granted:

Here, the Supreme Court erred in granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of sex and age in violation of the NYCHRL … . The allegation that a coworker repeatedly demonstrated a sex toy to the plaintiff was sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL … . Further, in opposition to the defendants’ motion, the plaintiff submitted an affirmation of a separate coworker detailing detailing further allegations of sexual harassment directed toward the plaintiff. The court erred in determining that the cause of action must be dismissed because the behavior constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense … which should be raised in the defendants’ answer and does not lend itself to a pre-answer motion to dismiss … .

Further, the allegations of disparate treatment of older employees, including the plaintiff, and that the plaintiff’s demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHRL … . …

The Supreme Court also erred in granting dismissal of the cause of action alleging unlawful retaliation based on the plaintiff’s complaints of sexual harassment. … The allegations that, following the plaintiff’s complaint to a supervisor concerning alleged sexual harassment, the plaintiff was assigned double the normal workload, subjected to increased scrutiny of her work and reprimands for minor errors, and ultimately demoted a few months later, sufficiently stated a cause of action to recover damages for unlawful retaliation for the plaintiff’s complaints of sexual harassment in violation of the NYCHRL … . However, the complaint failed to allege that the plaintiff ever complained about the alleged age discrimination, and thus the court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination. Kassapian v City of New York, 2017 NY Slip Op 07985, Second Dept 11-15-17

EMPLOYMENT LAW (PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (EMPLOYMENT LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/HUMAN RIGHTS LAW (EMPLOYMENT LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, EMPLOYMENT LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CONSTITUTIONAL LAW (FREE SPEECH, EMPLOYMENT LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/FREE SPEECH (EMPLOYMENT LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (AMEND COMPLAINT, EMPLOYMENT LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))/DISCRIMINATION (EMPLOYMENT LAW, HUMAN RIGHTS LAW, MUNICIPAL LAW, PLAINTIFF’S SEX AND AGE DISCRIMINATION CAUSES OF ACTIONS, AS WELL AS A RETALIATION CAUSE OF ACTION, SHOULD NOT HAVE BEEN DISMISSED, FIRST AMENDMENT VIOLATION CAUSE OF ACTION AGAINST CITY REQUIRES A NOTICE OF CLAIM, MOTION TO AMEND COMPLAINT TO ADD A FIRST AMENDMENT VIOLATION UNDER FEDERAL LAW, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN GRANTED (SECOND DEPT))

November 17, 2017

Constitutional Law, Municipal Law, Real Property Law

OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the condemnation of regulated wetlands can be subject to an increased valuation (increment) based upon a reasonable probability a knowledgeable buyer could successfully challenge the taking as unconstitutional. The increment represents the premium that a knowledgeable buyer would be willing to pay for a potential change to a more valuable use. Here Supreme Court found the increment to be $382,190.25. The Second Department, using the City’s appraisal, reduced the increment to about $157,000.00. The value of the regulated wetlands was deemed to be $75,000.00:

In light of the United States Supreme Court’s holding in Palazzolo [v Rhode Island, 533 US at 617], we conclude that a subsequent buyer of the property would not be precluded from bringing a successful regulatory takings claim. As a result, we reject the City’s argument that no knowledgeable buyer would be willing to pay a premium for the probability of a successful judicial determination that the regulations were confiscatory. We hold that the reasonable probability incremental increase rule still may be applied in valuing regulated wetlands properties taken in condemnation. Matter of New Cr. Bluebelt, Phase 3., 2017 NY Slip Op 07994, Second Dept 11-15-17

MUNICIPAL LAW (CONDEMNATION, REGULATED WETLANDS,OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/REAL PROPERTY LAW (CONDEMNATION, REGULATED WETLANDS , OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/CONSTITUTIONAL LAW (CONDEMNATION, REGULATED WETLANDS, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/CONDEMNATION (REGULATED WETLANDS, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/REGULATORY TAKING (WETLANDS, CONDEMNATION, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/WETLANDS (CONDEMNATION, REGULATED WETLANDS, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/EMINENT DOMAIN (CONDEMNATION, REGULATED WETLANDS,OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))

November 15, 2017

Appeals, Constitutional Law, Criminal Law, Evidence

UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined, in the interest of justice (error not preserved), the defendant was deprived of his right to confront a witness against him. A witness to the stabbing, Torres, could not be located and did not testify at the trial. Before it was clear Torres would not testify, two officers had already testified to facts that made it obvious Torres had identified the defendant as the perpetrator:

The record reveals … that the trial court understood full well the risk that the jurors, based on the detailed testimony of the arresting officers, might conclude that Torres—now a nontestifying witness—had identified the defendant as one of the perpetrators. Before summations, the court expressly warned both sides: “if I find that either of you are making any representation to this jury that Mr. Jose Torres made an identification of the defendant you will regret it.” Later, the court again warned the prosecutor in the following terms: “[S]ince Jose Torres did not testify, there is no way you are going to argue to this jury or infer to this jury in any way, shape or form that Jose Torres made an identification. Because that’s clearly the only import of your subsequent questioning about what did you do afterwards? Of course, the defendant got arrested. So it doesn’t take a rocket scientist to understand Jose Torres obviously identified something in this case.”

Both sides followed the court’s instructions during summations. However, during the jury’s deliberations, the jurors specifically requested a readback of [a police officer’s] testimony regarding “what Jose Torres told him relating to the perpetrator’s identification and what happened when he identified the defendant.” The requested testimony was read to the jury without any limiting instruction.

Under the unusual circumstances presented, the jury’s note demonstrates that the risk foreshadowed by the trial court had materialized, namely, that the jury had inferred from the arresting officers’ testimony that Torres had identified the defendant as one of Rivera’s attackers. Although neither side can be faulted for the introduction of the arresting officers’ testimony at a time when everyone believed in good faith that Torres would testify, once it became clear that Torres would not be produced as a witness, the arresting officers’ testimonial hearsay regarding the information conveyed to them by Torres violated the defendant’s constitutional right to confront the witnesses against him … . People v Tavarez, 2017 NY Slip Op 07756, Second Dept 11-8-17

CRIMINAL LAW (UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, (UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, CONFRONTATION, UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT))/CONFRONTATION CLAUSE (CRIMINAL LAW, UNEXPECTED ABSENCE OF A PROSECUTION WITNESS AFTER ARRESTING OFFICERS TESTIFIED ABOUT THE WITNESS’S INVOLVEMENT IN DEFENDANT’S ARREST DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, CONVICTION REVERSED IN THE INTEREST OF JUSTICE (SECOND DEPT)

November 8, 2017