You are here: / Constitutional Law
,

SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE.

The Second Department, reversing Supreme Court, determined the Sexual Assault Reform Act (Executive Law 258-c) (hereinafter SARA), as applied to the petitioner, was not shown to be so punitive in nature as to violate the Ex Post Facto Clause. Petitioner was convicted of a sex offense committed in 2000, before SARA was enacted. Upon release petitioner was deemed a Level One sex offender. SARA prohibits petitioner from living within 1000 feet of a school. In seeking a declaratory judgment/writ of prohibition finding SARA unconstitutional, petitioner argued the law virtually prohibits him from living and travelling in Brooklyn, where he had resided with his girlfriend:

​

The issue of whether it is permissible to retroactively apply SARA, which became effective on February 1, 2001, after the petitioner had committed the underlying sex offense, turns upon whether such application would violate the Ex Post Facto Clause of the United States Constitution, which provides that “[n]o State shall . . . pass any . . . ex post facto Law” … . The constitutional prohibition against ex post facto laws applies to “penal statutes which disadvantage the offender affected by them” … . “A statute will be considered an ex post facto law if it punishes as a crime an act previously committed, which was innocent when done,’ makes more burdensome the punishment for a crime, after its commission,’ or deprives one charged with crime of any defense available according to law at the time when the act was committed'”… . In contrast, a statute that is enacted for nonpunitive purposes, and is not so punitive in effect as to negate that nonpunitive intent, may be retroactively applied without violating the Ex Post Facto Clause … . * * *

​

The legislative history of SARA as originally enacted in 2000, as well as that of its 2005 amendment, make clear that it was intended to provide protection to children from the risk of recidivism by certain convicted sex offenders, rather than to punish such offenders for a past crime… . Indeed, the Court of Appeals, in analyzing the issue of whether the State has preempted the field of managing registered sex offenders, has stressed that SARA was part of “a detailed and comprehensive regulatory scheme involving the State’s ongoing monitoring, management and treatment of registered sex offenders, which . . . does not end when the sex offender is released from prison” … . Moreover, the petitioner has not shown by the “clearest proof” that the residency and travel restrictions imposed by SARA, as applied to him, are so punitive in their consequences as to transform the restrictions into punishment … . Accordingly, the retroactive application of SARA does not violate the Ex Post Facto Clause as applied to the petitioner. Since the petitioner failed to demonstrate “a clear legal right” to prohibition on that ground … , the Supreme Court should have denied that branch of the petition/complaint. Matter of Devine v Annucci, 2017 NY Slip Op 04114, 2nd Dept 5-24-17

 

CRIMINAL LAW (SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)/CONSTITUTIONAL LAW (EX POST FACTO CLAUSE, SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)/EX POST FACTO CLAUSE (SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)/SEX OFFENDERS (SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)/SEXUAL ASSAULT REFORM ACT (SARA) SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)

,

THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR NYC PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION.

The First Department, in a full-fledged opinion by Justice Saxe, determined that the various record-keeping and inspection statutes and regulations which apply to New York City pawnbrokers did not violate the unreasonable search and seizure prohibition in Article I, section 12 of the New York State Constitution. Therefore, the preliminary injunction prohibiting enforcement of the statutes, regulations and procedures should not have been granted:

Here, the statutory and regulatory framework at issue consists of two distinct components: not merely inspection requirements involving targeted, on-premises administrative inspections by government officials, but also substantial reporting requirements, involving submission of transactional information to the government.

To the extent the statutory and regulatory framework involves transactional reporting requirements, it does not involve either physical inspections or administrative searches of a business or its records; instead, it merely requires the submission of information in which the businesses have little, if any, expectation of privacy. * * *

Even if we focus on those provisions that authorize inspections, and characterize them as administrative searches, plaintiffs failed to demonstrate a likelihood that they will prevail. The Court of Appeals … acknowledged the continued viability of an “administrative search” exception to the constitutional requirements of probable cause and warrants. While that exception “cannot be invoked where … the [administrative] search is undertaken solely to uncover evidence of criminality’ and the underlying regulatory scheme is in reality, designed simply to give the police an expedient means of enforcing penal sanctions'” … , a regulatory administrative search scheme can pass muster under New York’s Constitution where it is “pervasive and include[s] detailed standards in such matters as, for example, the operation of the business and the condition of the premises” … . Collateral Loanbrokers Assn. of N.Y., Inc. v City of New York, 2017 NY Slip Op 00953, 1st Dept 2-7-17

 

MUNICIPAL LAW (NYC) (THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/CONSITUTIONAL LAW (NYS) (PAWNBROKERS, NYC, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/PAWNBROKERS (NYC) (THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/ADMINISTRATIVE SEARCHES (NYC) (PAWNBROKERS, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/SEARCH AND SEIZURE (PAWNBROKERS, NYC, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)

, ,

TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY; MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR.

The Fourth Department determined a citizen taxpayer’s declaratory judgment action against the state, claiming that the transfer of land to a trust pursuant to the Oneida Settlement Agreement ceded the state’s taxation authority, was properly rejected. The court noted that when a motion to dismiss a declaratory judgment action is made, the court will treat it as a motion for a declaration in the defendant’s favor:

Plaintiff alleges that Section VI B (1-5) of the Agreement violates article XVI of the State Constitution, which prohibits the State from surrendering, suspending or contracting away its power of taxation. Section VI B (1-5) provides that the State will not oppose a future application by the Oneida Indian Nation (Nation) to transfer to the United States up to 12,366 acres of land to be held in trust pursuant to 25 USC § 5108 (formerly § 465). The land at issue was formerly part of the 300,000-acre reservation, which was established in the 1788 Treaty of Fort Schuyler (see City of Sherrill, N.Y. v Oneida Indian Nation of N.Y., 544 US 197, 203), and which the Nation has reacquired through open-market transactions (see id. at 211). In 2008, the United States Secretary of the Interior accepted the transfer into trust of 13,004 acres of reacquired land owned by the Nation, over defendant’s objection. We conclude that the court properly declared that Section VI B (1-5) does not violate the State constitutional provision prohibiting defendant from surrendering or contracting away its power of taxation. * * *

To the extent that plaintiff contends that Executive Law § 11 and Indian Law § 16 violate article XVI of the State Constitution, we reject that contention. Kaplan v State of New York. 2017 NY Slip Op 00766, 4th Dept 2-3-17

 

CONSTITUTIONAL LAW (STATE) (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/INDIAN LAW (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/CIVIL PROCEDURE (DECLARATORY JUDGMENT, (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/DECLARATORY JUDGMENT (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)

,

REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION.

The Second Department, in a full-fledged opinion by Justice Dickerson, determined requiring an out-of-state resident to post security for costs associated with a lawsuit brought in New York does not violate the Privileges and Immunities Clause of the US Constitution. The plaintiff was injured in an accident in New York (when she was a New York resident) and subsequently moved to Georgia. The defendants moved pursuant to CPLR 8501 and 8503 to direct plaintiff to post security for costs in the amount of $500:

… [T]he U.S. Supreme Court has stated that the Privileges and Immunities Clause is satisfied so long as a nonresident ” is given access to the courts of the State upon terms which in themselves are reasonable and adequate for the enforcing of any rights he [or she] may have'” … . … There is a substantial reason for the difference in treatment between nonresidents and residents, namely, the fact that nonresident plaintiffs are unlikely to have assets in New York that may be used to enforce a costs judgment. And the discrimination practiced against nonresidents—requiring nonresident plaintiffs to post security for costs—bears a substantial relationship to the State’s objective of deterring frivolous or harassing lawsuits and preventing a defendant from having to resort to a foreign jurisdiction to enforce a costs judgment … . Clement v Durban, 2016 NY Slip Op 08500, 2nd Dept 12-21-16

CIVIL PROCEDURE (REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/COSTS (CIVIL PROCEDURE, REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/SECURITY (COSTS CIVIL PROCEDURE, REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/CONSTITUTIONAL LAW (REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/PRIVILEGES AND IMMUNITIES CLAUSE (REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)

, ,

PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION.

The First Department determined a reporter’s videotaped interview with the defendant in this murder case must be turned over to the prosecution. Although the substance of some of defendant’s statements to the reporter was summarized in the portion of the interview which was aired on the news, relevant statements made by the defendant were not aired. The First Department determined the relevant unaired portions of the interview were not protected by qualified privilege under the Shield Law (Civil Rights Law 79-h):

Here, the outtakes of an interview of defendant taken at a detention center in which he discusses, inter alia, the charges against him and his relationship with the victim, are on their face “highly material and relevant” (Civil Rights Law § 79-h[c]). In a circumstantial murder case, evidence which, standing alone, might appear innocuous can be deemed critical when viewed in combination with other circumstantial evidence … . Here, the reporter described on air statements made by defendant in unaired portions of the interview to the effect that Ms. Moore was a good tenant and a good person who always paid her rent on time and was friendly with fellow neighbors. While these statements out of context might seem benign, the People argue persuasively that they are “critical or necessary” to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict defendant’s earlier statements to police … . Although the People have access to the substance of what defendant said from [the reporter’s] paraphrase on the News 12 broadcast, defendant’s actual words and his demeanor as he said them are available only on the unpublished video of the interview in News 12’s possession. ,,, [W]e find that the People have made the “clear and specific showing” required to overcome News 12’s qualified privilege as to nonconfidential journalistic material under article I, section 8 of New York’s Constitution and the Shield Law only as to those portions of the unaired News 12 footage of its interview with defendant in which defendant makes any statement concerning killing Ms. Moore, and discusses their relationship and his impressions and observations of her, including her conduct as a tenant … . People v Bonie, 2016 NY Slip Op 05331, 1st Dept 7-5-16

CIVIL RIGHTS LAW (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CONSTITUTIONAL LAW (REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CRIMINAL LAW (CIVIL RIGHTS LAW, REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/REPORTERS (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/PRIVILEGE (REPORTERS, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)

, ,

EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL.

The Third Department, in a full-fledged opinion by Justice Devine, over a partial dissent, determined the Education Law statute which requires a 60% majority vote to increase property taxes beyond the statutory cap (to fund local school districts) is constitutional.  The Election Article of the New York Constitution, the due process clause, the right to equal protection under the law, and the fundamental right to vote were deemed not to have been violated by the statute. With regard to the equal protection argument, the court wrote:

Defendants suggest, and plaintiffs do not dispute, that Education Law § 2023-a ,,, [was] designed with the legitimate goal in mind of restraining onerous property tax increases that were believed to be depressing economic activity in the State … . Plaintiffs suggest that it is irrational to achieve this legitimate aim in a manner that impairs local control of schools and deters poorer school districts that would otherwise seek a property tax increase over the tax cap to keep pace with educational needs. It suffices to say that, while Education Law § 2023-a … incentivize[s] districts and their residents to avoid property tax increases over the tax cap, neither prevents such increases if sufficient community support exists for them (see Education Law § 2023-a [6]). The differences in the services offered by various school districts accordingly result from a permissible consequence of local control over schools, namely, the variable “willingness of the taxpayers of [different] districts to pay for and to provide enriched educational services and facilities beyond what the basic per pupil expenditure figures will permit” … . Inasmuch as there is nothing irrational in this, plaintiffs' equal protection claims fail … . New York State United Teachers v State of New York, 2016 NY Slip Op 03572, 3rd Dept 5-5-16

EDUCATION-SCHOOL LAW (EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL)/TAX LAW (EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL)/CONSITUTIONAL LAW  (EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL)

,

SNOW-REMOVAL COMPANY NOT LIABLE TO PLAINTIFF BECAUSE PLAINTIFF WAS NOT A PARTY TO THE SNOW-REMOVAL CONTRACT; NO NEED FOR DEFENDANT TO ADDRESS ESPINAL EXCEPTIONS IN ITS SUMMARY JUDGMENT MOTION IF THE EXCEPTIONS ARE NOT PLED BY THE PLAINTIFF.

The Second Department determined defendant snow-removal company, Brickman, was entitled to summary judgment dismissing the complaint in this slip and fall case. Because the plaintiff was not a party to the snow-removal contract with the owner of the property, Brickman owed no duty to plaintiff. The court noted that, because the plaintiff did not allege the applicability of any of the “Espinal” exceptions to the general rule against tort liability arising from a contract, the defendant was not obligated to address those exceptions in its summary judgment motion:

 

A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138). However, there are three exceptions to that general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … .

Brickman made a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that the plaintiff was not a party to its snow removal agreement, and that it thus owed her no duty of care … . Inasmuch as the plaintiff did not allege facts in the complaint or bill of particulars that would establish the possible applicability of any of the Espinal exceptions … , Brickman was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … .

Once Brickman made its prima facie showing, the burden shifted to the plaintiff to come forward with proof sufficient to raise a triable issue of fact as to the applicability of one or more of the Espinal exceptions … . In opposition to Brickman’s prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether Brickman launched a force or instrument of harm, whether she detrimentally relied on the continued performance of Brickman’s duties, or whether Brickman entirely displaced the owner’s duty to maintain the premises in a safe condition … . Bryan v CLK-HP 225 Rabro, LLC, 2016 NY Slip Op 01280, 2nd Dept 2-24-16

 

NEGLIGENCE (NO TORT LIABILTIY AROSE FROM SNOW-REMOVAL CONTRACT, PLAINTIFF NOT A PARTY)/SUMMARY JUDGMENT (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORT LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)/CONTRACT LAW (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORY LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)/ESPINAL EXCEPTIONS (DEFENDANT NEED NOT ADDRESS ESPINAL EXCEPTIONS TO THE RULE AGAINST TORY LIABILITY ARISING FROM CONTRACT IN A SUMMARY JUDGMENT MOTION IF NOT ALLEGED BY THE PLAINTIFF)

,

PETITIONERS, WHO HELD CATERED EVENTS, INCLUDING WEDDINGS, AT THEIR FARM, COMMITTED AN UNLAWFUL DISCRIMINATORY PRACTICE WHEN THEY REFUSED TO ALLOW RESPONDENTS’ SAME-SEX MARRIAGE AT THE FARM.

The Third Department, in a full-fledged opinion by Justice Peters, determined the State Division of Human Rights (SDHR) properly found petitioners (the Giffords) discriminated against respondents (the McCarthys) by refusing to hold the McCarthys’ same-sex marriage at the Giffords’ farm (Liberty Ridge). The Giffords held catered events on their farm, including weddings. The Third Department held the farm was “a place of public accommodation” within the meaning of the Human Rights Law (Executive law 290 [3]) and was therefore subject to the statutory prohibition of “unlawful discriminatory practice[s]” in “a place of public accommodation.” The federal and state constitutional arguments raised by the owners of the farm  (free exercise of religion, free speech, compelled speech and expressive association) were discussed in detail and rejected. SDHR’s award of $1500 each to the respondents, and the imposition of a $10,000 civil penalty on the Giffords was upheld. With respect to the definition of “a place of public accommodation,” the court explained:

Executive Law § 292 (9) “defines ‘place of public accommodation, resort or amusement’ inclusively and illustratively, not specifically, and sets forth an extensive list of examples of places within the statute” … . Such term includes “establishments dealing with goods or services of any kind” and “any place where food is sold for consumption on the premises” (Executive Law § 292 [9]). Over the years, the statutory definition has been expanded repeatedly, “provid[ing] a clear indication that the Legislature used the phrase place of public accommodation ‘in the broad sense of providing conveniences and services to the public’ and that it intended that the definition of place of accommodation should be interpreted liberally” … .

Here, Liberty Ridge’s wedding facilities fall comfortably within the broad definition of “place of public accommodation.” It is undisputed that petitioners open Liberty Ridge to the public as a venue for wedding ceremonies and receptions and offer several wedding-related event services in connection therewith. Indeed, the only wedding-related service that Liberty Ridge does not provide is an officiant for the wedding ceremony. The couples who contract to wed at Liberty Ridge’s facilities are members of the general public who, like the McCarthys, may be attracted to the farm by its broadly disseminated advertisements and website. The fact that the wedding ceremonies occur on private property and pursuant to a written contract does not, as petitioners contend, remove Liberty Ridge’s facilities from the reach of the Human Rights Law; the critical factor is that the facilities are made available to the public at large… . Matter of Gifford v McCarthy, 2016 NY Slip Op 00230, 3rd Dept 1-14-16

LABOR LAW (SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION SUPPORTED BY NON-DEFECTIVE A-FRAME LADDER WHICH FELL OVER WITH PLAINTIFF HOLDING ON TO IT AFTER PLAINTIFF WAS JOLTED WITH ELECTRICITY)

,

THE SEXUAL ASSAULT REFORM ACT (SARA), WHICH PROHIBITS CERTAIN SEX OFFENDERS FROM RESIDING OR TRAVELING WITHIN 1000 FEET OF A SCHOOL, DOES NOT IMPOSE PUNISHMENT AND THEREFORE DOES NOT VIOLATE THE EX POST FACTO CLAUSE.

The First Department, in an extensive opinion by Justice Gische, over a dissenting opinion by Justice Kapnick, determined the Sexual Assault Reform Act (SARA), which prohibits certain sex offenders, including appellant, from residing or traveling within 1000 feet of school grounds, did not violate the federal or state constitutions. Appellant claimed there was no place he could reside in Manhattan, and no way to travel to the places he was required to visit in Manhattan, without violating the statute. SARA was enacted after appellant’s conviction. Appellant argued the statute violated the prohibition against Ex Post Facto laws. The court applied the intent-effects analysis. If the intent of the legislation was to impose punishment, the statute would violate the EX Post Facto prohibition and the court’s inquiry would end. But if the intent was to establish civil proceedings, the court must go on to determine whether the effect of the statute is so punitive as to negate its civil nature. After an extensive analysis, the First Department held the statute was not intended to impose punishment, and the additional restrictions the statute imposed upon appellant, who was already otherwise restricted as a parolee, did not rise to the level of punishment:

 

… [W]hile some factors favor petitioner, overall we do not find the clear proof that is necessary to support a determination that SARA is punitive in its effect. The legislature was not “masking punitive provisions behind the veneer of a civil statute” … . Consequently, we conclude that SARA does not violate the Ex Post Facto Clause of the United States Constitution. Matter of Williams v Department of Corr. & Community Supervision, 2016 NY Slip Op 00135, 1st Dept 1-12-16

 

CRIMINAL LAW (SEXUAL ASSAULT REFORM ACT DOES NOT VIOLATE EX POST FACTO CLAUSE)/SEXUAL ASSAULT REFORM ACT [SARA] (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IS NOT PUNITIVE IN EFFECT AND DOES NOT VIOLATE EX POST FACTO CLAUSE)/CONSTITUTIONAL LAW (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IN THE SEXUAL ASSAULT REFORM ACT IS NOT PUNITIVE IN EFFECT AND THEREFORE DOES NOT VIOLATE EX POST FACTO CLAUSE)/EX POST FACTO CLAUSE (1000-FOOT SCHOOL-GROUNDS NO-GO ZONE IN THE SEXUAL ASSAULT REFORM ACT IS NOT PUNITIVE IN EFFECT AND THEREFORE DOES NOT VIOLATE EX POST FACTO CLAUSE)

,

Defendant Implicitly Consented to a Mistrial on Two of Three Counts by Requesting a Partial Verdict

The Court of Appeals, reversing the Appellate Division, determined the defendant, by requesting a partial verdict on the count on which the jury had reached a verdict, had consented to a mistrial on the two remaining counts and, therefore, had waived double jeopardy protection for those two counts:

After one juror was found unable to serve, defendant refused to substitute an alternate juror and requested a partial verdict on the one count on which the jury had indicated it had reached a verdict. The Appellate Division granted the [defendant’s] petition [prohibiting retrial] on the basis that there was no manifest necessity for a mistrial and did not address the issue of consent. Because defendant implicitly consented to a mistrial on two of three counts by requesting a partial verdict and by saying nothing about the court’s plans for retrial … , we need not reach the issue of manifest necessity. Matter of Gentil v Margulis, 2015 NY Slip Op 08455, CtApp 11-19-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy