The First Department determined that the state’s decrease in its contribution to the cost of judges’ health care insurance violated the Compensation Clause of the NYS Constitution. The reduced contribution increased the amounts withheld from judges’ salaries and thereby constituted an unconstitutional decrease in compensation. Bransten v State of New York, 2014 NY Slip Op 03214, 1st Dept 5-6-14
The Second Department, in vacating defendant’s conviction for attempted aggravated harassment, explained that when a substantive criminal statute, here Penal Law 240.30 (1), has been held unconstitutional, the defendant convicted of violating the statute has committed no crime:
“Where a substantive criminal statute has been held unconstitutional, there is no alternative but to give the decision retroactive effect for the declaration of unconstitutionality is a statement that the defendant has committed no crime” … [.] … [T]he Court of Appeals held that Penal Law § 240.30(1), as written at the time of the defendant’s conviction, was unconstitutionally vague and overbroad under both the state and federal constitutions … . Accordingly, the defendant’s conviction of attempted aggravated harassment in the second degree must be vacated … . People v Cesaire, 2015 NY Slip Op 03556, 2nd Dept 4-29-15
Although the admission of hearsay was deemed harmless error, the First Department determined that allowing the hearsay in evidence to “complete the narrative” or to “eliminate jury confusion” was improper. The hearsay identified defendant as one of the assailants by indicating the defendant’s name was one of the names mentioned in a phone call about the underlying assault. The court noted that the Confrontation Clause was not implicated because the hearsay was not “testimonial,” citing People v Gantt, 48 AD3d 59:
…[T]he hearsay nature of [the] testimony relating [an] out-of-court statement … identifying defendant as [an] assailant — either by name or by an identifying description …— was not remedied by framing the query posed … as seeking the “name mentioned …” during the call.
We do not adopt the trial court’s reasoning that the admission of this hearsay evidence was necessary to convey a coherent narrative of the relevant events or to eliminate the possibility of jury confusion … . People v Owens, 2015 NY Slip Op 03270, 1st Dept 4-21-15
The First Department, in a full-fledged opinion by Justice Renwick, determined that defendant’s surreptitious taking of photographs of plaintiffs through the windows of plaintiffs’ apartment did not violate the plaintiffs’ right to privacy codified in Civil Rights Law sections 50 and 51. The critically acclaimed photographer assembled the photographs, which were for sale, in an exhibition called “Neighbors” and put them up on his website. The court explained that the “newsworthy and public interest” exemption from the prohibitions of Civil Rights Law 50 and 51 has been extended to works of art by some courts, although the New York Court of Appeals has yet to consider the issue. The court wrote: “[We are constrained to conclude] works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption. … [U]nder this exemption, the press is given broad leeway. This is because the informational value of the ideas conveyed by the art work is seen as a matter of public interest. We recognize that the public, as a whole, has an equally strong interest in the dissemination of images, aesthetic values and symbols contained in the art work. In our view, artistic expression in the form of art work must therefore be given the same leeway extended to the press under the newsworthy and public concern exemption to the statutory tort of invasion of privacy:”
Applying the newsworthy and public concern exemption to the complaint herein, we conclude that the allegations do not sufficiently plead a cause of action under the statutory tort of invasion of privacy. As detailed above, plaintiffs essentially allege that defendant used their images in local and national media to promote “The Neighbors,” an exhibition that included photographs of individuals taken under the same circumstances as those featuring plaintiffs. Plaintiffs further allege that the photographs were for sale at the exhibit and on a commercial website.
Accepting, as we must, plaintiffs’ allegations as true …, they do not sufficiently allege that defendant used the photographs in question for the purpose of advertising or for purpose of trade within the meaning of the privacy statute. Defendant’s use of the photos falls within the ambit of constitutionally protected conduct in the form of a work of art. Foster v Svenson, 2015 NY Slip Op 03068, 1st Dept 4-9-15
The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a partial dissent, resolved a split among the departments and determined a defendant cannot be convicted of both intentional murder and depraved indifference murder where there is a single victim. It was alleged that the defendant fired his weapon at one person, but killed an uninvolved bystander who was several buildings away. The trial judge submitted both the intentional and depraved indifference murder theories to the jury in the conjunctive (not in the alternative). Defendant was convicted of both offenses. The Court of Appeals’ analysis turned on “transferred intent.” Conviction under New York’s “transferred intent” theory requires the jury to conclude the defendant acted intentionally. Intentional murder, even where “transferred intent” is involved, is incompatible with depraved indifference murder, which is, by definition, not intentional. Where there is a single victim, only one or the other mental state can apply, not both. The Court of Appeals further determined the trial court erred when it allowed in evidence the grand jury testimony of a witness who refused to testify, purportedly out of fear. There was not sufficient evidence connecting the defendant to any actions or words aimed at instilling fear in the witness. A new trial was ordered for the intentional, depraved indifference and attempted murder counts:
The purpose of the transferred intent theory is “to ensure that a person will be prosecuted for the crime [that person] intended to commit even when, because of bad aim or some other ‘lucky mistake,’ the intended target was not the actual victim” … . Given this stated goal, the Court has cautioned that transferred intent “should not be employed to ‘multiply criminal liability, but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime” … . Hence, it should be applied where a defendant “could not be convicted of the crime because the mental and physical elements do not concur as to either the intended or actual victim” … .
… Whether based on the defendant’s conscious objective towards the intended victim, or on a transferred intent theory directed at a different, and actual, victim, defendant’s conviction depends on a jury finding that defendant harbored the requisite intentional mental state. Defendant cannot then also be guilty of the same murder premised on a depraved state of mind.
That the People had at their disposal two bases by which to establish the requisite state of mind — transferred intent and depraved indifference — does not permit the People to seek multiple convictions for the one murder for which the defendant was charged, prosecuted and tried. To hold otherwise is contrary to “the basic principle that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may because of statutory definition, be theorized as constituting separate criminal acts” … . Under New York law, defendant is held accountable for the murder he committed, even if it was not the one he set out to complete (Penal Law 125.25 [1]). People v Dubarry, 2015 NY Slip Op 02865, CtApp 4-7-15
The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined that the court’s conducting an ex parte interview of a main prosecution witness concerning the witness’ health, addictions and his related ability to testify violated the defendants’ right to confrontation and right to counsel:
Absent a substantial justification, courts must not examine witnesses about nonministerial matters in camera without counsel present or ex parte (see … People v Goggins, 34 NY2d 163, 173 [1974]). “[A]n in-camera examination of the witnesses, that is ex parte or without the parties represented would, in our view, arguably trifle with the constitutional right to confrontation and the right to counsel” (Goggins, 34 NY2d at 169). A “defendant’s right to the full benefit of the adversary system should not be denied, nor qualified by impairing his right by interposing the ‘neutral’ Judge to assess whether the disclosure is relevant or material” (id.). Goggins concerned a defendant’s right to disclosure of an informant’s identity, and this Court held that where the information “relates to a substantive issue in the case, the disclosure should not be ex parte or without either party present even if in camera” (id. at 173). * * *
The denial of the right to counsel at trial “is of constitutional dimension” and is not subject to harmless error analysis … . Courts should not delve into questions of prejudice when assistance of counsel is involved … . As this Court recognized, “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial” … . And as this Court held in Hodge, a quantification of what impeachment material defense counsel might have obtained at the proceeding cannot be dispositive …, as harmless error does not apply in right-to-counsel cases … .
Here, the in camera proceeding clearly involved substantive issues as opposed to ministerial matters and there was no justification for excluding defense counsel. Because the discussion involved important issues for trial that might have affected a “substantial right” of a party, defense counsels’ presence was required… . People v Carr, 2015 NY Slip Op 02798, CtApp 4-2-15
The Fourth Department determined municipalities are not “persons” and cannot sue under the due process clause of the US or New York Constitutions to declare a statute unconstitutional. Here the counties sought to have a law prohibiting reimbursement for certain Medicaid expenses (section 61) overturned:
Here, petitioners contend that respondents’ enactment of section 61 impermissibly deprived them of vested rights to repayment under Social Services Law § 368-a, in violation of their rights under the due process clauses of the federal and state constitutions. The Fourteenth Amendment of the United States Constitution provides in relevant part that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Similarly, article I, § 6 of the New York State Constitution provides in relevant part that “[n]o person shall be deprived of life, liberty or property without due process of law.” Thus, the constitutional provisions share a common link, i.e., they protect a “person” (id.; see US Const, 14th Amend, § 1).
Contrary to petitioners’ contentions, we conclude that they are not persons within the meaning of the constitutional due process provisions. This principle was stated clearly by the United States Court of Appeals for the Seventh Circuit, which concluded that “[m]unicipalities cannot challenge state action on federal constitutional grounds because they are not persons’ within the meaning of the Due Process Clause” (City of East St. Louis v Circuit Court for Twentieth Judicial Circuit, St. Clair County, Ill., 986 F2d 1142, 1144). Other decisions, without using the term “person,” also support the conclusion that a municipal body may not use the due process clause to challenge legislation of the municipality’s creating state. Thus, “[i]t has long been the case that a municipality may not invoke the protections of the Fourteenth Amendment against its own state . . . A municipality is thus prevented from attacking state legislation on the grounds that the law violates the municipality’s own rights . . . Moreover, while municipalities or other state political subdivisions may challenge the constitutionality of state legislation on certain grounds and in certain circumstances, these do not include challenges brought under the Due Process . . . Clause[] of the Fourteenth Amendment . . . This is because a municipal corporation, in its own right, receives no protection from the . . . Due Process Clause[] vis-a-vis its creating state’ ” … . Matter of County of Chautauqua v Shah, 2015 NY Slip Op 02245, 4th Dept 3-20-15
The First Department, in a detailed decision, determined Supreme Court had properly balanced the requirement that a criminal trial be open to the public and the defendant’s right to a fair trial. Because the court properly used its discretion to balance the two concerns neither mandamus nor prohibition was an available remedy. The decision is worth reading—many of the issues discussed are not noted here:
The First Amendment guarantees the public and the press a qualified right of access to criminal trials … . This right must be kept in balance with the compelling interest of the defendant’s Sixth Amendment right to a fair trial and the right to privacy of prospective jurors … . The public’s right of access may be limited where there is a compelling governmental interest and closure is narrowly tailored to serve that interest … .
New York’s approach to courtroom closure is “comparable to the federal analysis” … . The press is not imbued with any special right of access, and while it possesses “the same right of access as the public,” it has no right to information about a trial that is “greater” or “superior” to that of the general public … . A ” trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity'” … . Decisions to seal or disclose records fall within the inherent power of the court to control the records of its own proceedings … . While a court must guarantee that the defendant receives a fair trial, it must do so in a manner that balances the interests of “the defendant, jurors, witnesses, attorneys and the public at large” … . Matter of Daily News, L.P. v Wiley, 2015 NY Slip Op 02010, 3rd Dept 3-12-15
In affirming County Court’s denial of defendant’s suppression motion, the Second Department explained the application of the emergency exception to the warrant requirement. The court noted that there is now a question whether one of the criteria for a valid warrantless search pursuant to the emergency exception, i.e., that the police are not primarily motivated by the intent to arrest and seize evidence, no longer applies under the Fourth Amendment to the US Constitution, and may only apply to claims under the New York Constitution:
“[Al]though warrantless entries into a home are presumptively unreasonable'” …, a warrantless search and seizure in a protected area may be lawful, under some circumstances, pursuant to the emergency doctrine (see People v Mitchell, 39 NY2d 173, 177-178…). The exception applies where the police (1) have “reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property,” (2) are “not . . . primarily motivated by intent to arrest and seize evidence,” and (3) have a “reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched” (People v Mitchell, 39 NY2d at 177-178…).
The United States Supreme Court has held that the subjective intent of the police is not relevant in determining the reasonableness of police conduct under the Fourth Amendment to the United States Constitution (see Brigham City v Stuart, 547 US 398, 403). Consequently, the second prong of Mitchell is now relevant, if at all, only to claims raised under the New York Constitution (see NY Const, art I, § 12). We need not determine in this case whether the second prong of Mitchell is still viable under the New York Constitution … , because we conclude that the actions of the police officers were permissible under both Brigham City and Mitchell … . People v Loucks, 2015 NY Slip Op 01471, 2nd Dept 2-18-15
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a Nassau County Local Law which prohibited registered sex offenders from residing within 1000 feet of a school was preempted by the body of state law regulating the residency of sex offenders. In this case, the defendant was adjudicated a level one sex offender (the lowest level of “danger” to the community) and had been discharged from parole. The state sex-offender residency restrictions no longer applied to him. The Court of Appeals held that the body of law enacted by the state in this area, by implication, evinced an intent to “occupy the field” and therefore local governments did not have the power to enact their own sex-offender residency laws:
Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the State (see NY Const, art IX, § 2 [c]; Municipal Home Rule Law § 10 [1] [i]; [ii] [1] [a] [12]). This doctrine of preemption is a significant restriction on a local government’s home rule powers because although localities are “invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies ‘the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern'” … . * * *
The doctrine of field preemption prohibits a municipality from exercising a police power “when the Legislature has restricted such an exercise by preempting the area of regulation” … . Although field preemption may be “express” as evidenced by the Legislature’s stated directive, it may also “be implied from a declaration of State policy by the Legislature . . . or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” … . Intent to preempt the field may “be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area” … . * * *
The defendant in this appeal is a designated level one sex offender, is not on probation or parole, nor is he subject to conditional release or PRS. None of the [state] provisions that even touch upon residency or placement apply to him. …[T]hat does not mean that the State has delegated to local governments the duty of enacting residency laws concerning registered sex offenders. Nor does it mean … that “the Legislature has chosen to limit its regulations over sex offenders and not to enact a comprehensive legislative scheme in the area concerning the residency restrictions of sex offenders who are not on parole, probation, subject to conditional discharge or seeking public assistance” … . Rather, it is clear that the State has been continuously active in this field and, as such, it is evident that the State has chosen to occupy it. People v Diack, 2015 NY Slip Op 01376, CtApp 2-17-15
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