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City Code and Charter Not Unconstitutionally Applied Re: Searches Related to Certificates of Occupancy

The Fourth Department reversed Supreme Court’s grant of an Article 78 petition. In granting the petition, Supreme Court found that the relevant provisions of the city code and charter were unconstitutional as applied with respect to searches of petitioner’s property in connection with the issuance of certificates of occupancy.  In reversing that determination, the Fourth Department wrote:

We have previously upheld as constitutional the City’s CO requirement as well as its procedure for issuing judicial warrants for inspections of premises in cases where the City has failed to obtain the consent of the homeowners or tenants … .  Petitioner concedes that the laws at issue are valid on – their face, but contends that the determination that he violated City Code § 90-16 (A) (2) (d) is unconstitutional because, as a result of the determination, he will be required to consent to a warrantless inspection of his property or risk prosecution and fines.  That contention, however, was specifically considered and rejected by this Court in Matter of Burns v Carballada (101 AD3d 1610, 1611-1612), which involved facts nearly identical to those herein.  The petitioners in Burns commenced a CPLR article 78 proceeding seeking to annul two determinations of the Municipal Code Violations Bureau finding that they violated City Code § 90-16 (A) (2) (d), the same provision at issue here, by owning rental property that was occupied without a valid CO (id. at 1610).  In the Burns petition, like the petition in this case, petitioners asserted, inter alia, that the determinations that they failed to comply with the City Code CO provision violated the Fourth Amendment and article I, § 12 of the New York State Constitution (id.).  Specifically, petitioners contended that the City’s CO inspection and warrant system was unconstitutional as applied to them because it prevented them from obtaining a CO without first consenting to a warrantless search of their properties (id. at 1611-1612).  We rejected that contention and stated that, “[u]nder the City’s ordinance, . . . an inspection can take place either upon consent or upon the issuance of a warrant (see City Charter § 1-11).  On the record before us, petitioners have not shown that they were actually penalized for refusing to allow an inspection inasmuch as there is no evidence that they ever applied for a CO and thereafter refused to consent to the required inspection of their properties” (id. at 1612).  Matter of Capon v Carballada…, 858, 4th Dept 9-27-13

 

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Death Threats Not Protected Under First Amendment; Hearsay May Be Basis of Administrative Determination

In affirming the arbitrator’s recommendation a teacher should be terminated for making death threats against an arbitrator in a prior disciplinary proceeding, the First Department noted that hearsay can be the basis for an administrative determination and explained the threats were not protected by the First Amendment:

We reject petitioner’s allegations that the instant disciplinary proceeding and the ultimate discipline imposed against him violated the right to free speech under the First Amendment to the United States Constitution. Supreme Court properly deferred to the arbitrator’s finding that petitioner’s statements are exempt from First Amendment protection because they constitute “true threats.” We note that petitioner’s former attorney only disclosed the threats because he believed that petitioner’s increasingly erratic behavior rendered him genuinely dangerous. Under the circumstances, it cannot be argued that petitioner’s speech implicates matters of public concern … . Nor can it be disputed that petitioner’s death threats disrupted the initial arbitration proceeding… . Matter of Smith v New York City Dept. of Educ., 2013 NY Slip Op 05765, 1st Dept 9-3-13

 

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Defendant Denied Constitutional Right to Present a Defense—Evidence Victim Identified Another as the Perpetrator Wrongly Excluded

In a full-fledged opinion by Justice Miller reversing defendant’s conviction, the Second Department determined defendant had been deprived of his constitutional right to present a defense.  The primary problem identified by the Second Department (among many others not mentioned here but worth reading about) was the preclusion of evidence that the victim had repeatedly identified someone other than the defendant as the perpetrator of the crime.  Two crucial pieces of such evidence, an entry in the victim’s diary and a statement made to a third party by the victim, were hearsay.  The court found that the People’s hearsay objection was waived because it wasn’t raised before the appeal. Concerning the failure to allow evidence of the victim’s identification of another as the perpetrator, the Second Department wrote:

“Before permitting evidence that another individual committed the crime for which a defendant is on trial, the court is required to determine if the evidence is relevant and probative of a fact at issue in the case, and further that it is not based upon suspicion or surmise” … . “Then, the court must balance the probative value of the evidence against the prejudicial effect to the People and may, in an exercise of its discretion, exclude relevant evidence that will cause undue prejudice, delay the trial, or confuse or mislead the jury” … . Although a trial court has “broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters” …, “the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers” … .

Here, the evidence that the victim identified Uppal as the perpetrator was exculpatory evidence that was directly relevant to the fundamental issue in this case—the identity of the attacker. Furthermore, such evidence of third-party culpability, coming from the victim of the crime herself, cannot be properly characterized as “rest[ing] on mere suspicion or surmise”… People v Thompson, 2013 NY Slip Op 05707, 2nd Dept 8-21-13

 

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Local Law Purporting to Limit Term of County District Attorney Preempted by New York Constitution and State Law

The Second Department determined that the local law which limited the term of the county district attorney to 12 years was preempted by the New York Constitution and state law, thereby allowing the sitting district attorney (who had served for 12 years) to run for another term.  The court reasoned:

…[T]he County’s attempt to place a term limit on the office of District Attorney is impermissible. Since the office of District Attorney is not a local office falling within the ambit of NY Const, article IX, § 2(c)(1) or Municipal Home Rule Law § 10 (1)(ii)(a), the County had no authority to place restrictions on the District Attorney’s terms of office. Further, even if the District Attorney is a local office falling within NY Const, article IX, § 2(c)(1) and Municipal Home Rule Law § 10(1)(ii)(a), the New York Constitution and state law, together, so expansively and comprehensively regulate the office, that a county government’s ability to place restrictions on a District Attorney’s terms of office has been preempted. *  *  *

Pursuant to the maxim of statutory construction “expressio unius est exclusio alterius,” “where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240…). Here, in light of the fact that the New York Constitution and state law speak to the duration and term of office of the District Attorney, there is an irrefutable inference that the imposition of any limit on the duration of that office was intended to be omitted or excluded (see McKinney’s Cons Laws of NY, Book 1, Statutes § 240…). Indeed, regarding County Court judges, the New York Constitution provides for a 10-year term (see NY Const, art VI, § 10[b]) and a maximum duration to age 70 (see NY Const, art VI, § 25[b]). That the Constitution imposed a durational limit on County Court judges, but not on District Attorneys, who are also “constitutional officers,” indicates that the omission was intentional and that it was intended that there be no durational limit on District Attorneys. Matter of Hoerger v Spota, 2013 NY slip Op 05661, 2nd Dept 8-16-13

 

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Although Arbitrator in Statutorily-Required Arbitration Proceeding Properly Found Teacher Engaged in Misconduct, Teacher’s Actions Were Protected by First Amendment

Teachers demonstrated in front of a school while negotiations for a new collective bargaining agreement were on-going.  On a rainy day, some teachers parked their cars in front of the school, displaying signs inside the cars.  Because the teachers were parked where children are usually dropped off by their parents, children were being dropped off in the street. The board of education brought a disciplinary charge against petitioner pursuant to Education Law 3020-a alleging the creation of a health and safety risk.  The matter went to statutorily-required arbitration and the arbitrator found the petitioner had created a health and safety risk.  Petitioner challenged the ruling in this Article 78 proceeding. The Second Department explained the court’s role in reviewing a statutorily-required arbitration, found that the arbitrator’s ruling was supported by the evidence, but determined petitioner’s activity was protected by the First Amendment:

Where, as here, arbitration is statutorily required, “judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record” … . “The award must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78” … . “Due process of law requires . . . that the [arbitrator’s determination] under the power conferred by statute have a basis not only in his good faith, but in law and the record before him [or her]” … . … In this proceeding… the evidence at the hearing provided a rational basis for the arbitrator’s decision, and the award was not arbitrary and capricious … .Nonetheless, we hold …that the petition should have been granted. The petitioner’s expressive activity regarding collective bargaining issues indisputably addressed matters of public concern …, and the District failed to meet its burden of demonstrating that the petitioner’s exercise of her First Amendment rights so threatened the school’s effective operation as to justify the imposition of discipline… .  Matter of Lucia v Board of Educ of E Meadow Union Free Sch Dist, 2013 NY Slip Op 05633, 2nd Dept 8-14-13

 

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40 Month Pre-Trial Delay Did Not Violate Due Process

In determining a 40-month delay did not deprive defendant his right to due process, the Fourth Department wrote:

In determining whether there has been an undue delay, a court must consider several factors, including “ ‘(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay’ ” (People v Decker, 13 NY3d 12, 15, quoting People v Taranovich, 37 NY2d 442, 445…).

Upon applying the Taranovich factors to the facts before us, we conclude that the delay did not deprive defendant of his right to due process.  We agree with defendant that the rape in the first degree charge “can only be described as serious” … .  Conversely, although the 40-month delay in commencing the prosecution was substantial, it was not per se unreasonable ….  Furthermore, defendant was not incarcerated for an extended period prior to the trial on these charges, and there is no evidence that defendant was prejudiced by the delay in commencing the prosecution.  Finally, the reason for the delay in this case was the police detective’s inability to fully identify and locate defendant.  That excuse was not unreasonable inasmuch as the victim was unable to identify defendant from mug shots or otherwise ascertain which of the 32 men in the Buffalo Police Department’s identification system with defendant’s name was the perpetrator. People v White, 817, 4th Dept 7-19-13

 

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DNA Evidence Not Testimonial—No Denial of Right to Confrontation

In affirming defendant’s conviction, the Second Department noted that DNA evidence did not violate defendant’s right of confrontation because the challenged evidence was not testimonial:

[Defendant’s] right of confrontation (see US Const Sixth Amend) was not violated when an expert testified that a DNA profile produced by the Office of the Chief Medical Examiner (hereinafter OCME) from a sample of the decedent’s blood matched a DNA profile produced by the OCME from a sample of a stain on a pair of jeans given to the office by the police department. The DNA profiles were not testimonial …, but rather, were merely raw data that, standing alone, did not link the defendant to the crime… . The connection of the defendant to the crime was made by the testimony of police officers establishing that the defendant was wearing the subject jeans when arrested, and of the DNA expert, who testified that, based on his analysis, the two subject DNA profiles matched…. People v Pitre, 2013 NY slip Op 05231, 2nd Dept 7-10-13

 

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References to Fingerprint Evidence Processed by Non-testifying Technician Did Not Violate Right to Confrontation

In determining defendant’s right to confrontation was not violated by latent fingerprint evidence processed by a technician who did not testify, the Fourth Department explained:

The technician who processed and photographed the fingerprint did not compare the latent print to the fingerprints of defendant or any other suspect. Thus, the technician’s findings were not testimonial because the latent fingerprint, “standing alone, shed[s] no light on the guilt of the accused in the absence of an expert’s opinion that the [latent fingerprint] match[es] a known sample”… .Moreover, the analyst who determined that the latent print matched one of defendant’s fingerprints in fact testified at trial and was available for cross-examination.    Therefore, defendant’s right to confront witnesses against him was not violated… .  People v Jackson, 645, 4th Dept 7-5-13

TESTIMONIAL HEARSAY

 

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Action Seeking to Enjoin Closure of Charter School Dismissed

Plaintiffs brought an action for injunctive relief against the Board of Regents which had denied the application of plaintiff Pinnacle Charter School to renew its charter. Supreme Court had granted a preliminary injunction and dismissed one cause of action. The Fourth Department reversed the preliminary injunction and dismissed the complaint entirely, including the causes of action alleging a violation of due process and a violation of the Administrative Procedure Act:

The first and second causes of action allege, respectively, that the determination of the Board of Regents violated Pinnacle’s due process rights under the State Constitution (NY Const, art I, § 6) and the Federal Constitution (US Const, 14th Amend, § 1). We agree with defendants that the New York Charter Schools Act (Education Law art 56) creates no constitutionally protected property interest in the renewal of a charter and thus that the first and second causes of action fail to state a cause of action… * * *

…[W]e agree with defendants that the Board of Regents was acting pursuant to its discretionary authority when it denied Pinnacle’s renewal application, and it was not required to promulgate any rules pursuant to article 2 of the State Administrative Procedure Act with respect to its exercise of such authority… .  Pinnacle Charter School, et al v Board of Regents, et al, 432, 4th Dept 7-5-13

 

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Right of Confrontation Not Violated by Results of Tests by Persons Who Were Not Called as Witnesses

In determining defendant’s right to confrontation was not violated by evidence of DNA testing:

The court properly admitted files prepared by the New York City Medical Examiner’s Office containing DNA profiles derived from the testing of evidence recovered from the crime scenes, since the documents containing the DNA profiles, which were prepared prior to the defendant’s arrest, “did not, standing alone, link [him] to the crime” …. The testimony of the People’s expert witness established that she conducted the critical analysis at issue by comparing the DNA profiles derived from the crime scene evidence to the defendant’s DNA profile and concluding that all of the profiles matched…. Moreover, the DNA profile generated from the swab of the defendant’s cheek, standing alone, shed no light on the issue of the defendant’s guilt in the absence of the expert’s testimony that it matched the profiles derived from the crime scene evidence….  People v Washington, 2013 NY Slip Op 05096, 2nd Dept 7-3-13

TESTIMONIAL HEARSAY

 

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