You are here: / Constitutional Law
,

The Acts of Applying for a Fake Non-Driver ID Card and Possessing the Fake Non-Driver ID Card Upon Arrest (Four-Months After Submitting the Application) Did Not Constitute a Single Criminal Venture—the Prohibition Against Double Jeopardy Did Not Preclude the Second Charge

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined defendant was not entitled to the dismissal of charges on double jeopardy grounds.  Defendant had used his son’s identification information to procure a non-driver ID card in Suffolk County.  Several months later defendant was stopped by police in Westchester County, presented the fake non-driver ID card, and was subsequently charged with possession of a forged instrument in the second degree. Defendant pled guilty to possession of a forged instrument third degree. When defendant’s son returned to New York State (after a four-year absence) and applied for a driver’s license in Westchester County, authorities became aware of defendant’s submission (in Westchester County) of a fake application (MV-44 form) for the non-driver ID. Defendant was then charged in Westchester County with possession of a forged instrument (the ID application form) as well as forgery.  The Court of Appeals held that the two offenses were not “integrated, interdependent acts as seen in conspiracy cases or complex frauds…”. Therefore, unlike individual acts within such conspiracies or complex frauds, the two acts did not constitute a “single criminal venture.” The court noted: “A closer case might be presented had defendant applied for a driver’s license in Suffolk County with his son’s papers and showed the temporary driver’s license later that same day when his car was stopped by police. In such circumstances, the timing and criminal purpose of the two acts would be more interrelated than the circumstances presented here:”

Under CPL 40.20, a subsequent prosecution for offenses involving the “same criminal . . . transaction,” as defined by CPL 40.10 (2), violates the statutory bar against double jeopardy unless an exception applies.

“‘Criminal transaction’ means conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]). * * *

Part (b) of the CPL 410.10 definition “tends to be more applicable to crimes that involve planned, ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings” (7 NY Prac., New York Pretrial Criminal Procedure § 2:6 [2d ed.]). This Court has recognized statutory violations of double jeopardy protections in drug trafficking cases where the “embracive nature of the crime of conspiracy” presents unique circumstances … .

Here, under the test presented by CPL 40.10 (2) (a), the offense of submitting a forged MV-44 form and the offense of presenting a forged non-driver ID to the police were many months apart and … involved different forged instruments — the non-driver’s license and the MV-44 application form — making them different criminal transactions. The Suffolk County charge was based on defendant’s completion and filing of the application form. The offense was complete once defendant submitted the forged application to the DMV in June 2009. The Westchester offense occurred four months later and was based on defendant’s presentation of the forged non-driver’s license to the officer. With the non-driver ID card in hand, defendant could give the appearance of a clean record, which would enable him to evade his criminal history and obtain a loan or employment under a false identity. Applying the alternative test defined by CPL 40.10 (2) (b), this case does not involve the integrated, interdependent acts as seen in conspiracy cases or complex frauds, and as such does not constitute a “single criminal venture” … . People v Lynch, 2015 NY Slip Op 04754, CtApp 6-9-15

 

, , ,

Village’s Opting to Remove Petitioner’s Land from the Land Available for Purchase by New York City to Maintain the City’s Drinking-Water Watershed Was Not a Regulatory Taking

The Third Department determined the village had acted appropriately when it opted to exclude portions of land within the village from New York City’s watershed acquisition program.  Petitioner was attempting to sell an easement for her land to the City.  When the village opted to exclude petitioner’s land from the City’s acquisition program, the petitioner brought an action claiming the village had exceeded its authority by improperly restricting the ownership and transferability of her property. Petitioner further argued that the village’s action constituted a de facto regulatory taking of her property for which she was entitled to compensation:

Through voluntary agreement and accepting DEC [Department of Environmental Conservation] conditions, the City consented not to be a potential purchaser of some upstate property if the local municipalities opted to exclude the property from land acquisition by the City. This was part of a delicate balance designed to protect the watershed and save the City significant money while safeguarding the economic vitality of upstate communities … . It was not an improper attempt by a local municipality to regulate who owns or occupies property … , but, in essence, the withdrawal of one potential purchaser who received a significant benefit. * * *

Where, as here, “the contested [resolution] falls short of eliminating all economically viable uses of the encumbered property, the Court looks to several factors to determine whether a taking occurred, including ‘the [resolution’s] economic effect on the landowner, the extent to which the [resolution] interferes with reasonable investment-backed expectations, and the character of the government action'” … . The resolution’s result was that one potential purchaser — who had not made any offer during the years when an easement on petitioner’s farm could have been purchased — no longer remained a potential purchaser. Petitioner has since found another willing purchaser. The resolution did not hinder the use that was being made of the property as a farming operation. The purpose of the resolution was to protect the Town’s potential for growth and economic sustainability, which was one of the many goals of the various parties involved … and consistent with an overriding purpose of maintaining a safe, ample and relatively inexpensive drinking water supply for the City. Petitioner “did not meet [her] heavy burden of showing that the [resolution] resulted in a regulatory taking”… .  Matter of Nelson v City of New York, 2014 NY Slip Op 03319, 3rd Dept 5-8-14

 

, ,

Ordinance Prohibiting “Unnecessary Noise” Is Not Unconstitutionally Vague

The defendant was stopped by the police for a violation of a city ordinance prohibiting “unnecessary noise” (a loud car stereo).  The defendant argued that the stop, which resulted in drug charges, was not justified by probable cause because the “unnecessary noise” ordinance is “unconstitutionally vague.” The Fourth Department determined the ordinance was not unconstitutionally vague because it is tailored to the context of what can be heard more than 50 feet from a vehicle on a public highway and is sufficiently definite to put defendant on notice his conduct was forbidden:

Municipal ordinances “enjoy an exceedingly strong presumption of constitutionality’ ” …, and such legislative enactments “are to be construed so as to avoid constitutional issues if such a construction is fairly possible”… . “The void-for-vagueness doctrine embodies a rough idea of fairness’ ” …, and “an impermissibly vague ordinance is a violation of the due process of law” … . In addressing such a challenge, courts first “must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by the statute” … . “Second, the court must determine whether the enactment provides officials with clear standards for enforcement”

* * * … [T]he City Ordinance is not unconstitutionally vague because the section under which defendant was convicted was tailored to a specific context—the creation of “unnecessary noise” beyond 50 feet of a motor vehicle on a public highway (City Ordinance § 40-16 [b]). In our view, “[w]hat is usual noise in the operation of a car [radio or other sound production device] has become common knowledge . . . and any ordinary motorist should have no difficulty in ascertaining” whether the noise in question violates the applicable standard … . Based on the foregoing, we conclude that the ordinance in question was “sufficiently definite” to put defendant on notice that his conduct was forbidden, and that it provided the police “with clear standards for enforcement” … . People v Stephens, 2015 NY Slip Op 03991, 4th Dept 5-8-15

 

, , ,

Although Picketing by Teachers Was Protected Speech, the Manner in which the Picketing Was Carried Out Endangered the Safety of Students—Therefore the Teachers Were Properly Disciplined

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, with concurring and dissenting opinions, reversed the Appellate Division and found that teachers had been properly disciplined for picketing in their cars in a manner which made it more difficult for parents to drop off their children at the school.  The court applied the so-called Pickering test (Pickering v Board of Educ…391 US 563 [1968]) which addresses the free speech rights of public employees (which are somewhat curtailed).  Under the court's Pickering analysis, the picketing was protected speech, but the manner in which the picketing was done endangered the students. The teachers, therefore, could be disciplined for the manner in which they exercised their right to free speech:

Under Pickering, the determination whether a public employer has properly disciplined a public employee “for engaging in speech requires 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [public] . . . employer, in promoting the efficiency of the public services it performs through its employees'” … . This balancing test recognizes that the public employer must be permitted a level of control over its employees so it may fulfill essential services, such as public safety and education, efficiently and effectively …, but also that “[v]igilance is necessary” to ensure public employers do not use their authority “to silence discourse[] not because it hampers public functions but simply because superiors disagree with the content of [the] employees' speech” … . Matter of Santer v Board of Educ of E Meadow Union Free Sch Dist, 2014 NY Slip Op 03189, CtApp 5-6-14

 

, , ,

Comptroller Has Authority to Audit Private Health Care Providers Who Are Paid through an Insurance Company Under Contract with the State for Health Care Provided to State Employees

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the state comptroller had constitutional and statutory authority to audit the billing records of private health care providers (Handler and South) who receive state funds for care provided to state employees through an insurance company under contract with the state. The underlying audit concerned the health care providers' waiver of patients' co-payments which effectively reduced the cost of the care provided by 20%.  Because the state was obligated to pay only 80% of the cost of the care, the comptroller determined the health care providers who waived the copayment were effectively overpaid by the state.  The health care providers argued the comptroller did not have the power to audit them because they were paid by the insurance company, not the state:

Handler and South Island receive State insurance funds in exchange for services rendered to State insurance beneficiaries. The fact that the State relies on a third-party conduit, United [the insurance company], does not change the character of the funds. They remain State dollars directed to pay health care costs incurred by State beneficiaries and charged by Handler and South Island.  Matter of Martin H Handler MD PC v DiNapoli, 2014 NY Slip Op 03191, CtApp 5-6-14

 

, , , ,

Supreme Court Should Not Have Determined the Mortgage Company Did Not Negotiate a Loan Modification in Good Faith Without a Hearing, and Could Not, Pursuant to the Contract Clause, Order the Mortgage Company to Enter a Loan Modification Agreement

After defendant, Ms Hepburn, failed to answer the summons and complaint in a mortgage foreclosure action, the plaintiff mortgage company moved for an order of reference (the appointment of a referee to compute the amount due).  Supreme Court denied the motion and, sua sponte, determined the mortgage company had not negotiated a loan modification in good faith (CPLR 3408), and directed the mortgage company to offer a loan modification within sixty days.  The Second Department determined Supreme Court should have granted the motion for an order of reference (which was not opposed), should not have made a finding the mortgage company failed to negotiate a loan modification in good faith without conducting a hearing, and could not, pursuant to the Contract Clause, order the mortgage company to enter a loan modification agreement:

The Supreme Court should not have, sua sponte, determined that the plaintiff failed to negotiate in good faith as required by CPLR 3408, and directed it, within sixty days, to offer a loan modification to Ms. Hepburn allowing her to assume the subject mortgage. “It is well-settled that an action to foreclose a mortgage is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … . A court “may impose a sanction sua sponte, but the party to be sanctioned must be afforded a reasonable opportunity to be heard” … .

Here, the only matter before the Supreme Court was the plaintiff’s motion for an order of reference. Without an evidentiary hearing or notice to the parties, the Supreme Court sua sponte determined that the plaintiff had not acted in good faith in its negotiations with Ms. Hepburn at settlement conferences, which were held over a 16-month period, and thereupon denied the plaintiff’s motion. Such procedure did not afford the plaintiff an opportunity to oppose the Supreme Court’s finding that it had not met it obligation to negotiate in good faith as required by CPLR 3408 or to oppose the imposition of sanctions … . Moreover, even if sanctions for failure to negotiate in good faith were appropriate in this matter, the Supreme Court erred in directing the plaintiff to, in effect, enter into a contract with Ms. Hepburn … . Such a sanction violates the Contract Clause of the United States Constitution … . PHH Mtge. Corp. v Hepburn, 2015 NY Slip Op 03817, 2nd Dept 5-6-15

 

,

State’s Decrease in Its Contribution to Judges’ Health Care Insurance Violated the Compensation Clause of the NYS Constitution

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

 

,

Defendant Convicted of Violating an Unconstitutional Statute Has Committed No Crime

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

 

, ,

Allowing Testimony that Defendant’s Name Was Mentioned in an Out-of-Court Conversation About the Underlying Assault Was (Harmless) Error/The Confrontation Clause Was Not Implicated Because the Hearsay Was Not Testimonial/Admission of the Hearsay Was Not Justified as “Completing the Narrative” or “Preventing Jury Confusion”

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

 

,

Acclaimed Photographer’s Surreptitious Taking of Photographs of Plaintiffs Through Apartment Windows Did Not Violate Plaintiffs’ Right to Privacy as Codified in Civil Rights Law 50 and 51–Art Is Exempt from the Reach of Those Statutes

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

 

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