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County Could Not Shift Obligation to Pay Property Tax Refunds to Taxing Districts

In a full-fledged opinion by Judge Abdus-Salaam, which includes extensive historical, theoretical, constitutional and statutory discussions of the issues involved, the Court of Appeals determined Nassau County could not shift its obligation to pay real property tax refunds from the county to its individual taxing districts. The county’s attempt to supersede a special state tax law exceeded its statutory and constitutional authority:

As limited by the State and Federal Constitutions' protection of individual rights and restriction of State power, the State Constitution establishes the State government as the preeminent sovereign of New York, and the three coordinate branches of the State government may exercise the entire legislative, executive and judicial power of the State, as entrusted to them by the people … .Given that the authority of political subdivisions flows from the State government and is, in a sense, an exception to the State government's otherwise plenary power, the lawmaking power of a county or other political subdivision “can be exercised only to the extent it has been delegated by the State”… .. Furthermore, because the Constitution expressly imbues the State government, rather than any locality, with “[t]he power of taxation” (NY Const art XVI, § 1), State law governs the tax field unless the State Legislature or the Constitution unambiguously delegates certain taxation authority to a political subdivision… . Matter of Baldwin Union Free School District v County of Nassau, 9, CtApp 2-18-14

 

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Constitutionality of Statute Allowing Defective Sentence to Be Remedied by a Sentence Without Post Release Supervision (CPL 70.85) Is an Open Issue Which Should Be Decided by the Sentencing Court in the First Instance/Crawford Motion Relieving Counsel of Perfecting an Appeal Because of the Absence of Non-Frivolous Issues Should Not Have Been Granted

The Court of Appeals determined the Appellate Division should not have granted counsel’s motion to withdraw from representing the defendant on appeal on the ground the appeal would be “wholly frivolous.”  There is an issue whether the statute which allows resentencing the defendant to a term of imprisonment without post release supervision after post release supervision had been (illegally) administratively imposed is constitutional:

Defendant timely appealed the resentence and was assigned counsel, who reviewed the file and informed defendant of our decision in People v Boyd (12 NY3d 390 [2009]), where this court upheld defendant Boyd's sentence under Penal Law § 70.85, but left open the constitutionality of that statute, stating that it should be decided by the sentencing court in the first instance.  Despite this open issue, counsel filed a motion pursuant to People v Crawford … arguing that there were no non-frivolous issues to be raised on defendant's behalf and asking to be relieved as counsel.  Defendant filed a pro se supplemental brief arguing that her sentence was illegal, and that she was denied effective assistance of counsel.  The Appellate Division granted counsel's motion and affirmed the resentence, without addressing defendant's pro se contentions (96 AD3d 1515 [2012]).  * * *

Defendant argues that her appeal was not wholly frivolous because she had two claims: (1) the claim that Penal Law § 70.85 is unconstitutional as applied to her case, and (2) that defendant was denied effective assistance of counsel at every level.  We agree with defendant that the Appellate Division erred in granting the Crawford motion.  Without expressing any opinion on the ultimate merits, at the time defendant's appellate counsel filed his Crawford motion, the claims to that court were not wholly frivolous and, therefore, the court should have denied appellate counsel's motion.  As a result, a reversal and remittal for a de novo appeal is warranted… . People v Beaty, 84, CtApp 1-16-14

 

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Religious Brochure Urging Confession (Given to Defendant by a Deputy Sheriff) Required Trial Court to Make Sure Defendant Understood His Right to Refrain from Testifying at Trial—Trial Court’s Colloquy with Defendant Deemed Sufficient

In a full-fledged opinion by Justice Peters affirming defendant’s conviction, the Third Department determined the trial judge had made an adequate inquiry to ensure that defendant understood his right to refrain from testifying at trial.  The inquiry was deemed necessary in this case because a deputy sheriff had given the defendant a religious brochure which stated that confession was the only way to avoid an “eternity in a prison called hell:”

… [A] criminal defendant has the right to testify in his or her own defense guaranteed by the Federal and State Constitutions … .  This fundamental “right to testify is ‘personal’ and . . . can be waived only by the defendant,” and any such waiver must be knowingly, voluntarily and intelligently made … .  To be sure, the “trial court does not have a general obligation to sua sponte ascertain if the defendant’s failure to testify was a voluntary and intelligent waiver of his [or her] right” … .  However, “in exceptional, narrowly defined circumstances, judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant’s right to testify is protected” … .

We believe that such colloquy was critically necessary here.  The privilege against self-incrimination – and, by extension, the decision whether to waive that privilege and testify – “is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion'” … .  But here the deputy’s actions in foisting the religious tract upon defendant constituted an effort by law enforcement to “interfere[] with the free and unhampered decision of [defendant] to testify” … .  Moreover, looking at “factors beyond the government’s control to determine whether [defendant’s] decision not to testify resulted from the government’s conduct,” defendant allegedly knew “chapter and verse” the biblical quotations in the tract, making defense counsel concerned that he was peculiarly susceptible to the exhortation made… . People v Robles, 105103, 3rd Dept 1-16-14

 

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Motion to Vacate a Conviction Can Be Based Upon a Freestanding Claim of Actual Innocence—All Reliable Evidence, Even If Previously Barred at Trial or After Prior Motions to Vacate, May Be Presented at the Hearing

In a comprehensive opinion by Justice Hinds-Radix, the Second Department determined that a CPL 440 motion to vacate a conviction can be based upon a “freestanding claim of actual innocence.”  The defendant, who had brought several unsuccessful 440 motions, was deemed to have presented sufficient evidence of actual innocence to justify a hearing, in which all reliable evidence previously barred could be presented and considered:

The Due Process Clause in the New York State Constitution provides “greater protection than its federal counterpart as construed by the Supreme Court” … . Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution (see NY Const, art I, § 6… ). Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments (see NY Const, art I, § 5…). Thus, we conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused’s constitutional rights… . * * *

At the hearing, all reliable evidence, including evidence not admissible at trial based upon a procedural bar—such as the failure to name certain alibi witnesses in the alibi notice—should be admitted … . If the defendant establishes his actual innocence by clear and convincing evidence, the indictment should be dismissed pursuant to CPL 440.10(4), which authorizes that disposition where appropriate. There is no need to empanel another jury to consider the defendant’s guilt where the trial court has determined, after a hearing, that no juror, acting reasonably, would find the defendant guilty beyond a reasonable doubt.  People v Hamilton, 2014 NY Slip Op 00238, 2nd Dept 1-15-14

 

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No Constitutional Issue Raised by Claim that County Is Paying Too High a “Mobility Tax” Because It Does Not Receive as Much Transit Service as Other Counties Paying the Same Amount

The Third Department affirmed the dismissal of two causes of action brought by a county challenging a “mobility tax” imposed upon counties served by the Metropolitan Transportation Authority (MTA).  The county alleged the mobility tax was disproportionately high because it did not receive as much service as other counties paying the same amount:

The gravamen of both claims is that the funding provided to the MTA by the County is disproportionately high when compared to the transit services received by it in return.  The MTA undoubtedly provides services to the County and its residents, however, and “[e]ven a ‘flagrant unevenness’ in application” of the financing scheme used to fund the MTA is constitutionally permissible … .

Without more, the fact that the County purportedly receives “fewer benefits from the [MTA] than those received by other[s] . . . is insufficient to warrant the relief requested” … .  Plaintiffs have not pointed to any constitutional or statutory provision that is violated by this alleged misallocation of resources and, as such, the sixth and seventh causes of action present nothing more than a nonjusticiable and impermissible attempt “to substitute judicial oversight for the discretionary management of public business by public officials” … .  Supreme Court thus acted properly in granting the MTA defendants’ motion for summary judgment.  Vanderhoff… v Silver, 516180, 3rd Dept 12-19-13

 

 

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Failure to Call One of the Parties Who Signed a Drug-Analysis Report Did Not Violate the Confrontation Clause/No Evidence the Party Conducted Any Testing or Analysis

The Third Department determined that the Confrontation Clause was not violated because a party [Lafond] who had signed the report identifying the controlled substance defendant was accused of selling did not testify.  The court determined Lafond had nothing to do with the chemical tests and analysis.  The party who actually did the chemical tests and analysis, Brant, testified:

…Brant – the analyst who identified the oxycodone, performed the chemical tests on it, determined the nature of the substance, and authored the report – in fact testified and was subject to crossexamination … .  The report is certified pursuant to CPL 190.30 (2) with the following language: “I, Clifford E. Brant, . . . hereby certify” and then states that it is “my [i.e. Brant’s] report and contains the opinions and interpretations of the examination I performed in the above referenced case” (emphasis added).  Brant also testified that Lafond cosigned the report after an administrative review of it, as required by State Police protocol.  There is no support in the record for the proposition that Lafond examined or analyzed the substance, observed Brant doing so, or was signing the report in that capacity.  Indeed, Brant testified that after he alone performed the forensic chemical testing, he sealed, signed and dated the laboratory bag containing the pill, which remained intact as of the trial, supporting the conclusion that Lafond only read and signed the report after it was completed to ensure that proper procedure was followed …, and she had no role in ascertaining or verifying the identity of the substance in issue.  Thus, the “actual analyst who performed the tests” … and “wr[o]te [the] report[]” … testified.   We find that Lafond, who neither analyzed the substance in issue nor authored the report, was not a “witness” against defendant for purposes of the Confrontation Clause … and, accordingly, no Crawford violation occurred as a result of the People admitting Brant’s report into evidence without calling Lafond to testify. People v Wolz, 104909, 104910, 3rd Dept 12-19-13

 

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Penal Law 70.85, Which Allows Resentencing without a Period of Post-Release Supervision to Remedy a Defective Sentence, Is Constitutional

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined Penal Law 70.85 is constitutional.  Section 70.85 allows the resentencing of a defendant who was not informed about post-release supervision to a sentence that does not include post-release supervision.  The statute was enacted to provide a remedy, other than vacation of the guilty plea, when a plea was entered in the absence of an explanation of the post-release supervision part of the sentence:

By now it is well established that the State Constitution requires a trial court to ensure that a defendant has a “full understanding of what the plea connotes and its consequences” … .  A guilty plea made without notification from the court about the direct consequence of a PRS term violates the Constitution because it could not have been “a voluntary and intelligent choice among the alternative courses of action”… . * * *

Mindful of the constitutional rights at issue…, we find that section 70.85 is a constitutionally permissible legislative remedy for the defectiveness of the plea.  Defendant’s plea was knowing and voluntary because the Legislature has changed the sentencing laws governing pleas vulnerable to …challenge.  Section 70.85 ensures that defendant, who is no longer subject to PRS, pleaded guilty with the requisite awareness of the direct consequences of his plea.  People v Pignataro, 213, CtApp 12-12-13

 

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Subpoena Which Could Result In Compelling a New York Reporter to Reveal Her Sources in an Out-of-State Proceeding Should Not Have Been Issued by a New York Court

In a full-fledged opinion by Judge Graffeo, with three dissenting judges, the Court of Appeals reversed the Appellate Division and held that a New York reporter (Winter) could not be subpoenaed to testify in Colorado.  Under Colorado law, it was likely the reporter would have been compelled to reveal her sources for a story about a notebook provided by James Holmes to his psychiatrist.  Holmes was the shooter in a mass shooting in a movie theater in Aurora, Colorado, during a midnight showing of a “Batman” movie.  The court determined that the public policy underlying New York’s Shield Law would be violated if the subpoena were issued and, therefore, issuance of the subpoena was prohibited:

…New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news — and their confidential sources — that has been recognized as the strongest in the nation.  And safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York’s journalistic privilege, as is evident from our colonial tradition, the constitutional text and the legislative history of the Shield Law.  * * *

It is therefore evident based on the New York Constitution, the Shield Law and our precedent that a New York court could not compel Winter to reveal the identity of the sources that supplied information to her in relation to her online news article about Holmes’ notebook.  Holmes does not argue otherwise but relies on our decision in Matter of Codey (Capital Cities, Am. Broadcasting Corp.) (supra, 82 NY2d 521) for the proposition that, when New York functions as the “sending state” in relation to a CPL 640.10(2) application, issues concerning testimonial privilege — including the applicability of the absolute privilege afforded by the Shield Law — simply cannot be considered by a New York court.  …

CPL 640.10(2) is New York’s codification of the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, which has been adopted by all 50 states. * * *

We … conclude that an order from a New York court directing a reporter to appear in another state where, as here, there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy — a common law, statutory and constitutional tradition that has played a significant role in this State becoming the media capital of the country if not the world.  Matter of Holmes v Winter, 245, CtApp 12-10-13

 

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Failure to Provide Pre-Restraint Notice to a Judgment Debtor as Required by the Exempt Income Protection Act Violates Due Process

In a full-fledged opinion by Justice Hall, the Second Department determined that the failure of the judgment debtor’s bank to provide the notice required by the Exempt Income Protection Act (CPLR 5222-a) before restraining the debtor’s account violated due process:

…[T]he statutory mechanism requires the attorney for the judgment creditor to serve a judgment debtor’s banking institution with a copy of the restraining notice, an exemption notice, and two exemption claim forms (see CPLR 5222-a[b][1]). The statute then requires the banking institution, within two business days after receipt of such documents, to serve upon the judgment debtor a copy of the restraining notice, the exemption notice, and the two exemption claim forms (see CPLR 5222-a[b][3]). In this action, the attorney for the judgment creditor properly sent the required documents to the judgment debtor’s bank, but the bank did not timely send the documents to the judgment debtor. As a result, the judgment debtor’s bank account was restrained without any notice to her or any opportunity to claim that certain funds in the account were exempt from debt collection. We conclude that this constituted a violation of the judgment debtor’s due process rights, and, as a remedy, afford the judgment debtor the opportunity to claim exemptions before any funds in her account are turned over. Distressed Holdings LLC v Ehrler, 2013 NY Slip Op 08044, 2nd Dept 12-4-13

 

 

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Reimbursement Cuts for Profit-Making Nursing Homes Did Not Violate Takings or Equal Protection Clauses

The Third Department determined the plaintiffs—profit-making businesses operating nursing homes—did not raise questions of fact about whether reductions in Medicaid reimbursement rates instituted in 2011 violated the Takings Clause and the Equal Protection Clause:

…”‘[W]here a service provider voluntarily participates in a price-regulated program or activity, there is no legal compulsion to provide service and thus there can be no taking'”… . * * *

Given [the] fundamental difference in the underlying economic purposes and incentives of proprietary and voluntary facilities, they are not similarly situated as they must be to sustain plaintiffs’ equal protection claim … . Bay Park Center for Nursing and Rehabilitation LLC v Shah, 516654, 3rd Dept 11-27-13

 

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