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Internet Tax Held Constitutional

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined the Internet Tax (Tax Law 1101(b)(8)(vi) was constitutional on its face and did not violate either the Commerce Clause or the Due Process Clause.  The plaintiffs in the action, Overstock.com and Amazon.com, sued the New York State Department of Taxation and Finance.  The activities found to be legitimately taxable in New York were described by the Court as follows:

Amazon offers an “Associates Program” through which third parties agree to place links on their own websites that, when clicked, direct users to Amazon’s website. The Associates are compensated on a commission basis. They receive a percentage of the revenue from sales generated when a customer clicks on the Associate’s link and completes a purchase from the Amazon site. The operating agreement governing this arrangement states that the Associates are independent contractors and that there is no employment relationship between the parties. Thousands of entities enrolled in the Associates Program have provided a New York address in connection with their applications.

Plaintiff Overstock.com is a Delaware corporation with its principal place of business in Utah. Overstock likewise sells its merchandise solely through the Internet and does not maintain any office, employees or property in New York. Similar to Amazon, Overstock had an “Affiliates” program through which third parties would place links for Overstock.com on their own websites. When a customer clicked on the link, he or she was immediately directed to Overstock.com, and if the customer completed a purchase, the Affiliate received a commission. According to the parties’ Master Agreement, the Affliates were independent contractors without the authority to obligate or bind Overstock.

Judge Smith dissented and would have found the statute unconstitutional under the Commerce Clause.  Overstock.com, et al, v NYS Department of Taxation and Finance, et al, 33, CtApp 3-28-13

 

 

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Religious Holidays in Teachers’ Collective Bargaining Agreement Violate the Establishment Clause 

A provision in a collective bargaining agreement that allowed teachers to take up to five religious holidays as paid days off was deemed unconstitutional by the Second Department:

“There is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State’s power to force one to profess a religious belief” … . Here, the clear wording of the religious holidays provision rewarded members of the Association who claimed to be religiously observant with more paid days off than those afforded to agnostics, atheists, and members who were less observant. As a result, the religious holidays provision violated the Establishment Clause of the First Amendment of the United States Constitution … .   Matter of Board of Educ … v Mineola Teachers Assn, 2013 NY Slip Op 02070, 2011-11373, Index No 7359/11, 2nd Dept 3-27-13

 

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17-Year Pre-Indictment Delay Did Not Violate Right to Speedy Trial

A 17-year pre-indictment delay did not violate defendant’s right to a speedy trial.  The Fourth Department wrote:

On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]), defendant contends that the 17-year preindictment delay violated his constitutional right to a speedy trial.We reject that contention. In examining the Taranovich factors (People v Taranovich, 37 NY2d 442, 445), we conclude that, although the 17-year preindictment delay was substantial, the nature of the charge was serious, and defendant remained at liberty until he was indicted. Moreover, the People met their burden of establishing a good-faith basis for the delay (see People v Decker, 13 NY3d 12, 14-16; People v Chatt, 77 AD3d 1285, 1285, lv denied 17 NY3d 793). In particular, they established that there was insufficient evidence to charge defendant shortly after the crimes occurred, and it was not until a witness gave new information to the police that identified defendant as the perpetrator and DNA testing was completed that the People brought the charges against defendant. While the delay may have caused some degree of prejudice to defendant, “ ‘a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant’ ” (Decker, 13 NY3d at 14).  People v Gaston, 176, KA 11-00406, 4th Dept. 3-15-13

 

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Taser or Stun Gun Is Not a “Dangerous Instrument” for Purposes of Burglary and Menacing Statutes; Court Must Articulate Specific Reasons for Shackling Defendant During Trial

Proof that the defendant threatened the complainant with a taser or stun gun was legally insufficient to establish the “dangerous instrument” element of burglary in the first degree and menacing in the second degree.  Although the Second Department determined it was harmless error, the Court also noted that it was error to shackle the defendant and put black bunting around the defense table, without also putting black bunting around the prosecution table. The jury, in that circumstance, may have inferred the bunting was designed to hide shackles.  “The federal constitution ‘forbids the use of visible shackles … unless that use is justified by an essential state interest … specific to the defendant on trial’ …”.  County Court, in this instance, failed to articulate on the record an adequate justification individualized to the defendant for the shackling … .  People v Morillo, 2013 NY Slip Op 01572, 2010-11438, Ind No 2052/09, 2nd Dept. 5-13-13

 

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Guilty Plea Precludes Appeal of Statutory Speedy Trial Violation But Not Constitutional Speedy Trial Violation

By pleading guilty a defendant forfeits appellate review of a claim that his statutory right to a speedy trial pursuant to Criminal Procedure Law 30.30 was violated. However, a defendant’s constitutional speedy trial claim survives both a guilty plea and a waiver of the right to appeal. People v Franco, 2013 NY Slip Op 01570, 2009-10119, Ind No 10795/07, 2nd Dept. 3-13-13

 

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County Did Not Have the Power to Enact a Local Law to Repeal State Laws Concerning Property Tax.

The Second Department, in a full-fledged opinion by Justice Lott, determined that a local law enacted by Nassau County which purported to repeal portions of state laws concerning property tax violated the New York State Constitution and the Municipal Home Rule Law. Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 2013 NY Slip Op 01265 [105 AD3d 113], Second Dept 2-27-13

 

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Queens County District Attorney’s Standard “Preamble” to the Miranda Warnings Struck Down.

In a full-fledged opinion by Justice Skelos, the Second Department struck down a so-called “program” which had been put in place by the Queens County District Attorney’s Office.  Pursuant to the “program,” a “preamble” was read to the defendant just before the Miranda warnings were given.  The Second Department determined the preamble rendered the Miranda warnings ineffective.  The Court noted that the defendant was told of his privilege against self-incrimination only after being told (in the preamble) that this was his “only opportunity” to refute what others have said, to correct any misperceptions, and to try to help himself.  The preamble suggested that the prosecutor would not investigate his version of events if he declined to speak with the prosecutor at that time.  Conversely the preamble suggested that, if the defendant agreed to be interviewed, the prosecutor would assist him with such an investigation.  This suggestion, the Second Department held, “is contrary to the very purpose of the warning that anything a suspect says can be used against him … . In essence, the preamble suggests that invoking [the right to remain silent] will bear adverse, and irrevocable, consequences.”  People v Dunbar, 2010-04786, Ind. No. 1217/09 Second Dept. 1-30-13

 

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