Constitutional Law – Page 39 – New York Appellate Digest

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

Appeals, Constitutional Law, Criminal Law

WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department determined the denial of youthful offender status was not appealable as it was encompassed by the waiver of appeal. The Fourth Department further determined the purported waiver of defendant’s Fourth Amendment rights as a condition of probation was not valid because there was no relationship between the waiver and the sexual-abuse offense to which defendant pled guilty. The invalid conditions allowed searches of his person, home and personal property, breath, blood and urine testing, and prohibited use or possession of alcohol:

Defendant … contends that various conditions of his probation are not authorized by Penal Law § 65.10. We agree with defendant that his contention is not precluded by the waiver of the right to appeal and does not require preservation inasmuch as his challenges to those conditions implicate the legality of the sentence … . We agree with defendant that the document he signed requiring him to consent to waive his Fourth Amendment right protecting him from unreasonable searches and seizures of his person, home, and personal property, and to submit to chemical tests of his breath, blood, or urine, is not enforceable because it was not related to the probationary goal of rehabilitation … . The waiver and consent to search was ostensibly based on defendant’s acknowledgment that his criminal behavior was related to drug/alcohol abuse, but in fact there was no evidence that defendant was under the influence of alcohol or drugs when he committed the offense or had a history of drug or alcohol abuse … . For similar reasons, we agree with defendant that special condition nine of the conditions of probation, which required him to abstain from the use or possession of alcoholic beverages and to submit to appropriate alcohol testing, is also not enforceable and must be stricken. People v Saraceni, 2017 NY Slip Op 06732, Fourth Dept 9-29-17

CRIMINAL LAW (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/CONSTITUTIONAL LAW (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/SEARCH AND SEIZURE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/PROBATION (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/WAIVER OF APPEAL (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/SEXUAL ABUSE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))

September 29, 2017

Constitutional Law, Criminal Law, Sex Offender Registration Act (SORA)

ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT).

The Third Department determined the fact that defendant was not required to register as a sex offender under the law of Washington state did not affect the requirement that he register in New York. The Full Faith and Credit Clause was not implicated:

Defendant argues that requiring him to register in New York when a Washington court order relieved him of the obligation to register in that state violates the Full Faith and Credit Clause (see US Const, art IV, § 1). However, this clause is designed “to avoid conflicts between [s]tates in adjudicating the same matters” … and “is not implicated where the issue decided by a court in [another] state is different from the issue being decided by a New York court” … . Here, Washington and New York have each separately adjudicated the risks posed by defendant to their respective citizens, and each state has imposed sex offender registration requirements pursuant to the governing sex offender registration laws in each state and, accordingly, neither state has adjudicated the “same matter” in violation of the Full Faith and Credit Clause .., .

… [F]ull faith and credit principles do not require New York to assign an offender the same risk level as that imposed by the jurisdiction where the conviction occurred … . …

… [Because] each state is assessing the risks posed to its own citizens and vulnerable populations and applying its own registration laws, the courts are not adjudicating the “same matters” in violation of the Full Faith and Credit Clause … . People v Hlatky, 2017 NY Slip Op 06693, Third Dept 9-28-17

CRIMINAL LAW (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT)/CONSTITUTIONAL LAW (FULL FAITH AND CREDIT CLAUSE, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))/FULL FAITH AND CREDIT CLAUSE (SEX OFFENDER REGISTRATION ACT, ALTHOUGH DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER UNDER THE LAW OF WASHINGTON STATE, NEW YORK LAW PROPERLY REQUIRED REGISTRATION, FULL FAITH AND CREDIT CLAUSE NOT VIOLATED (THIRD DEPT))

September 28, 2017

Civil Procedure, Constitutional Law

ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT).

The Second Department determined a dispute between plaintiff and a rabbi involved neutral principles of law and therefore could be adjudicated in the state court system:

The plaintiff commenced this action to recover damages for breach of contract and fraud, alleging that she made several payments to the defendants totaling $214,000 for the purchase of three torah books, and for the defendants to find her a husband pursuant to the Jewish custom of “shiduch.” The plaintiff alleged that the defendants made false statements to induce her to make the payments, and had not performed pursuant to their agreement. …

“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” … .

Here, the defendants failed to demonstrate that the plaintiff’s causes of action cannot be determined solely upon the application of neutral principles of law, without reference to religious principles … . Lifschitz v Sharabi, 2017 NY Slip Op 06530, 2nd Dept 9-20-17

CIVIL PROCEDURE (ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT))/RELIGION (ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT))

September 20, 2017

Constitutional Law, Criminal Law

STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP).

The Court of Appeals, in a per curiam opinion with three extensive concurring opinions, determined the statutes criminalizing assisted suicide are constitutional in that they do not violate the due process or equal protection clauses.

Plaintiffs ask us to declare a constitutional right to “aid-in-dying,” which they define (and we refer to herein) as the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician, to be taken at some point to cause death. Although New York has long recognized a competent adult’s right to forgo life-saving medical care, we reject plaintiffs’ argument that an individual has a fundamental constitutional right to aid-in-dying as they define it. We also reject plaintiffs’ assertion that the State’s prohibition on assisted suicide is not rationally related to legitimate state interests .. . . * * *

Our State’s equal protection guarantees are coextensive with the rights protected under the federal Equal Protection Clause … . In Vacco v Quill, the United States Supreme Court held that New York State’s laws banning assisted suicide do not unconstitutionally distinguish between individuals (521 US 793, 797 [1997]). As the Court explained, “[e]veryone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally, laws that apply evenhandedly to all unquestionably comply with equal protection” … . The Supreme Court has not retreated from that conclusion, and we see no reason to hold otherwise. * * *

… [T]he State pursues a legitimate purpose in guarding against the risks of mistake and abuse. The State may rationally seek to prevent the distribution of prescriptions for lethal dosages of drugs that could, upon fulfillment, be deliberately or accidentally misused. The State also has a significant interest in preserving life and preventing suicide, a serious public health problem … . As summarized by the Supreme Court, the State’s interests in prohibiting assisted suicide include: “prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians’ role as their patients’ healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia” … . These legitimate and important State interests further “satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end” … . Myers v Schneiderman, 2017 NY Slip Op 06412, CtApp 9-7-17

CONSTITUTIONAL LAW (ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)/SUICIDE (CONSTITUTIONAL LAW, ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)/ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)/CRIMINAL LAW (ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)

September 7, 2017

Constitutional Law, Family Law, Religion

RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT).

The Second Department, in a full-fledged per curiam opinion, determined that a change in circumstances warranted a modification of the stipulation of settlement of a divorce action. The opinion is too detailed to fairly summarize here. At issue was the extent of the religion-related requirements of the stipulation of settlement. Father objected to the lifestyle changes associated with mother’s open acknowledgment that she is gay and the presence of O, a transgender man, in the home. The court held that the religion-based restrictions placed upon mother’s lifestyle, stemming from Supreme Court’s finding that the religious aspects of the stipulation were paramount, violated her constitutional rights. Rather than the religious concerns, the analysis must focus on the best interests of the children. To that end, the Second Department determined certain aspects of the stipulation concerning the father’s desire to raise and educate the children in the Hasidic tradition were in the children’s best interests:

… [T]he Supreme Court improperly directed that enforcement of the parties’ stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. Although the court accepted the father’s argument that the religious upbringing clause “forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools,” the plain language of the parties’ agreement was “to give the children a Hasidic upbringing” … . The parties’ agreement does not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle … . * * *

Contrary to the mother’s contention, the weight of the evidence demonstrates that it is in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. Weisberger v Weisberger, 2017 NY Slip Op 06212, Second Dept 8-16-17

FAMILY LAW (RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CUSTODY (FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/RELIGION (FAMILY LAW, CUSTODY, CONSTITUTIONAL LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))

August 16, 2017