Constitutional Law – Page 5 – New York Appellate Digest

Constitutional Law, Criminal Law, Evidence

DEFENDANT PLED GUILTY TO TWO COUNTS OF CRIMINAL POSSESSION OF A WEAPON; MONTHS LATER THE PEOPLE INDICTED THE DEFENDANT ON A MURDER CHARGE, BASED ON THE SAME FACTS; COUNTY COURT PROPERLY DENIED DEFENDANT’S CPL 40.40 MOTION TO DISMISS THE MURDER INDICTMENT; THERE WAS A STRONG, COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, affirming County Court’s denial of defendant’s motion to dismiss the murder indictment (CPL 40.40(2)), determined that the criminal possession of a weapon charges to which defendant pled guilty were not a barrier to a subsequent murder charge based on the same underlying facts. There was a comprehensive dissent:

… [O]n or about November 20, 2021, the 90-year-old victim was shot and killed in her home. When police officers arrived at the scene, defendant, the victim’s granddaughter, was found in the house and appeared to be in distress. Defendant gave the officers conflicting accounts of what had happened to her grandmother but consistently stated that there were guns in the house that defendant had been playing with. A pistol and a revolver were recovered from the home. The People presented evidence to a grand jury relating to the two firearms. The evidence included witness testimony from various police officers about the crime scene, including that the victim appeared to have suffered a gunshot wound to the chest and about statements made to them by defendant. Defendant was indicted on two counts of criminal possession of a firearm (Penal Law § 265.01-b [1]), and she pleaded guilty to both counts. * * *

“CPL 40.40 prohibits a separate prosecution of joinable offenses that arise out of the same transaction and involve different and distinct elements under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions” … . Under CPL 40.40 (1), “[w]here two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction, . . . such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses.” A “criminal transaction” is defined as “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]). “When (a) one of two or more joinable offenses [that are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction] is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the [P]eople of evidence legally sufficient to support a conviction of the defendant for such uncharged offense, and (c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred” (CPL 40.40 [2] …). Under the facts and circumstances of this case, we conclude that the conduct related to possession of the firearms and that related to the murder involved separate and distinct criminal acts that were not part of the same criminal transaction … . Thus, the murder count was properly charged on a separate accusatory instrument and the People did not violate CPL 40.40.

From the dissent:

… [P]rosecution of the murder charge is barred by CPL 40.40 (2) because it is joinable under CPL 200.20 (2) (a) with the criminal possession of a firearm offenses charged in the prior indictment, and the People possessed legally sufficient evidence to support a murder conviction against defendant when she pleaded guilty to the firearm offenses. Where, as here, “the evidence against a person is in the prosecutor’s hands, [they] may not—as a player in a game of chance—deal out indictments one at a time” … . People v Harris, 2025 NY Slip Op 03419, Fourth Dept 6-6-25

Practice Point: Here defendant pled guilty to two counts of criminal possession of a weapon and was subsequently indicted for murder based on the same facts. The majority upheld the denial of the CPL 40.40(2) motion to dismiss the indictment, concluding the possession-of-a-weapon and murder charges were not part of the same criminal transaction. There was a strong dissent.

June 6, 2025

Appeals, Constitutional Law, Criminal Law, Judges

THE JUDGE’S PROVIDING ERRONEOUS INFORMATION ABOUT THE MAXIMUM SENTENCE DEFENDANT WAS FACING NEED NOT BE PRESERVED FOR APPEAL AND RENDERED THE GUILTY PLEA INVOLUNTARY (THIRD DEPT).

he Third Department, reversing defendant’s conviction by guilty plea, determined the judge’s providing erroneous information about the maximum sentence defendant was facing did not need to be preserved for appeal and rendered the guilty plea involuntary:

… County Court advised [defendant] that, if he elected to proceed to trial and was convicted of all offenses as a second felony drug offender, he faced a sentencing exposure of 36 years in prison rather than the correct, capped term of 30 years … . … [A]s the Court of Appeals recently made clear, where “the court provides the defendant with erroneous information concerning their maximum sentencing exposure that is contrary to the undisputed text of the Penal Law, fails to correct its error on the record, and the defendant has no apparent reason to question the accuracy of that information, the defendant need not preserve a challenge to the voluntariness of the guilty plea on that ground” … . * * *

Although defendant here was no stranger to the criminal justice system and received a reasonable sentencing commitment from County Court, the plea colloquy itself reflects that defendant believed that he had been overcharged and questioned whether he would be convicted if he went to trial. Defendant made clear during the plea colloquy, in fact, that he was only pleading guilty to the indictment because he would rather[*3]”get the high/low of 16/14″ than go to trial and risk “more time in state prison.” Even then, defendant remained conflicted about pleading guilty until the moment he entered his formal plea, asking County Court immediately before he did so to repeat the potential sentencing exposure he faced if he did not “want to go through all of this and [went] to trial.” … .People v Shaw, 2025 NY Slip Op 03358, Third Dept 6-5-25

Practice Point” Here the judge told defendant he was facing 36 years in prison when the actual maximum was 30. That error need not be preserved for appeal and, based on defendant’s remarks and questions at sentencing, was deemed to have rendered defendant’s guilty plea involuntary.

June 5, 2025

Administrative Law, Constitutional Law, Education-School Law

AN ADMINISTRATIVE PROCEEDING WAS BROUGHT BY THE UNIVERSITY AGAINST PETITIONER-STUDENT BASED UPON ANOTHER STUDENT’S (THE REPORTING INDIVIDUAL’S) ALLEGATIONS SHE WAS SEXUALLY ASSAULTED; THE UNIVERSITY’S TITLE IX GRIEVANCE POLICY PROVIDES THAT WHERE, AS HERE, THE REPORTING INDIVIDUAL IS ABSENT FROM THE HEARING AND IS NOT SUBJECT TO CROSS-EXAMINATION, ANY DETERMINATION BY THE UNIVERSITY CANNOT BE BASED UPON STATEMENTS ATTRIBUTED TO THE REPORTING INDIVIDUAL; THE DETERMINATION WAS ANNULLED ON THAT GROUND (THIRD DEPT).

The Third Department, annulled the university’s determination petitioner had violated the university’s “Community Rights and Responsibilities” by sexually assaulting the reporting individual. Petitioner did not deny kissing an touching the reporting individual, but contended all the interactions were consensual. The reporting individual did not testify at the hearing. The university’s Title IX grievance policy provides that, when the reporting individual does not testify and is not subject to cross-examination, the determination cannot be based upon any statement attributed to the reporting individual. Here statements by the reporting individual were the basis for the university’s determination:

Petitioner contends that he was denied due process because he was not afforded the opportunity to question the reporting individual, who did not testify at the hearing or otherwise submit to cross-examination. Under the circumstances presented here, we agree and conclude that annulment is required. “In general, there is a limited right to cross-examine an adverse witness in an administrative proceeding, and the right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings” … . Nevertheless, “[i]t is well established that once having adopted rules or guidelines establishing the procedures to be followed in relation to suspension or expulsion of a student, colleges or universities — both public and private — must substantially comply with those rules and guidelines” … . Matter of Bibler v State Univ. of N.Y. at Albany, 2025 NY Slip Op 03373, Third Dept 6-5-25

Practice Point: In a university disciplinary proceeding stemming from an allegation of sexual assault, the right to cross-examine the accuser is not considered an essential requirement of due process. However, the university is required to abide by its own rules. Here the rules stated that, where the accuser is absent from the hearing and is not cross-examined, the university’s determination cannot be based upon statements made by the accuser. The university’s failure to comply with that rule required that the determination be annulled.

June 5, 2025

Constitutional Law

A NYC LOCAL LAW REQUIRING REDUCTIONS IN GREENHOUSE GAS EMISSIONS FROM LARGE BUILDINGS IS NOT PREEMPTED BY THE STATE’S CLIMATE LEADERSHIP AND COMMUNITY PROTECTION ACT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the NYC Local Law requiring reductions in greenhouse gas emissions from large buildings was not preempted the the state’s Climate Leadership and Community Protection Act:

The State Constitution grants local governments the power to enact “local laws not inconsistent with the provisions of th[e] constitution or any general law” relating to certain specified subjects, including the “safety, health and well-being of [the locality’s] persons or property” (NY Const, art IX, § 2 [c] [ii] [10]; see also Municipal Home Rule Law § 10 [1] [ii] [a] [12]). State law can preempt local law in one of two ways: either through conflict preemption, which occurs when the local and State laws directly conflict, or field preemption, which occurs “when a local government legislates in a field for which the State Legislature has assumed full regulatory responsibility” … . Plaintiffs have not argued conflict preemption; their sole claim before us is that the State has preempted the field of regulating greenhouse gas emissions. * * *

Rather than demonstrating an intent to preempt the field of regulating greenhouse gas emissions, the Climate Act recognizes that local government plays an important role in this area. The Act does not expressly prohibit local regulation of emissions. To the contrary, the Act’s legislative findings evince a sense of urgency concerning the implementation of mitigation measures in general and further express the legislature’s intent to “encourage other jurisdictions to implement complementary greenhouse gas reduction strategies” … . The Act also directs the Climate Action Council to identify and consider measures taken by other jurisdictions, including localities, when developing the Scoping Plan … . The absence of any statement that local efforts would be superseded is particularly significant here given that Local Law No. 97 was enacted before the Climate Act, as well as the recognized and longstanding involvement of localities in regulating matters of environmental concern affecting the health and safety of the community, such as air pollution … . Further reflecting the Act’s embrace of complementary local action, as noted above, it contains a savings clause stating that it does not relieve any entity from, as relevant here, compliance with other applicable local laws and regulations … . Glen Oaks Vil. Owners, Inc. v City of New York, 2025 NY Slip Op 03101, CtApp 5-22-25

Practice Point: Consult this opinion for insight into the criteria for “field preemption,” i.e., the state’s intention to regulate an area exclusively to the exclusion of any local laws or regulations. Here a NYC Local Law regulating greenhouse gas emissions from buildings was not preempted by the state’s Climate Act.

May 22, 2025

Attorneys, Constitutional Law, Criminal Law, Judges

HERE DEFENDANT MADE A TIMELY REQUEST TO REPRESENT HIMSELF WHICH WAS DENIED WITHOUT ANY INQUIRY; DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion (three judges), reversing defendant’s convictions and ordering a new trial, determined that the judge’s failure to conduct an inquiry before denying defendant’s request to represent himself violated his constitutional right to self-representation:

A defendant has a constitutional right to proceed pro se (see US Const Amend VI; NY Const, art I, § 6; see also CPL 170.10 [6], 180.10 [5], 210.15 [5] [codifying a defendant’s constitutional right to self-representation]). Defendant invoked that right when he informed Supreme Court that he “would like to represent [him]self” at his upcoming trial. People v McIntyre (36 NY2d 10 [1974]) and its progeny required that the court make a searching inquiry into defendant’s unequivocal and timely request to proceed pro se, to determine whether that request was knowing, voluntary, and intelligent. Contrary to that rule, the court immediately denied defendant’s request without inquiry, and it expressly refused to consider any further request until the day of trial. The court’s failure to inquire into defendant’s request violated his constitutional right to self-representation. Therefore, we reverse and grant defendant a new trial.

On June 4, 2018, the parties appeared for trial. * * * This colloquy followed:

THE DEFENDANT: I’m going to go cocounsel.
THE COURT: I can’t hear you.
THE DEFENDANT: Cocounsel. I’m going to go cocounsel.
THE COURT: Cocounsel?
THE DEFENDANT: Yes.
THE COURT: What is that?
THE DEFENDANT: Meaning I’m going to represent myself in this case.
THE COURT: You mean pro se.
THE DEFENDANT: Yes. I will be going pro se at trial. I will be representing myself acting as my own.
THE COURT: You made no application before me.
THE DEFENDANT: I never said I wanted a trial by jurors. I never told this individual that I wanted a trial by jurors.
THE COURT: You know, Mr. Lewis, I’m assuming now you’re trying to play games with this court. . . . I’ll continue with this trial. If you want to speak to [defense counsel] about certain issues, I’ll hear [defense counsel] tomorrow morning.”

The following morning, the court invited defendant to raise any issues before proceeding with jury selection. Defendant asserted again that he did not want defense counsel to represent him, alleging that counsel was ineffective, had a conflict of interest, and was not working on his behalf. The court only responded, “[o]kay. Nicely done,” and continued the proceeding. People v Lewis, 2025 NY Slip Op 03011, CtApp 5-20-25

Practice Point: A defendant has a constitutional right to self-representation. A judge must conduct a “searching inquiry” upon a timely request.

May 20, 2025

Constitutional Law, Criminal Law, Family Law

THE EIGHT-AND-A-HALF-MONTH DELAY BETWEEN THE JUVENILE’S ARREST AND THE FILING OF THE JUVENILE DELINQUENCY PETITION DEPRIVED THE JUVENILE OF DUE PROCESS OF LAW (SECOND DEPT).

The Second Department, reversing the order of disposition in this juvenile delinquency proceeding, determined the juvenile, Adonis J W, was deprived of his constitutional right to due process by the eight-and-a-half-month delay between his arrest and the filing of the petition:

“The due process right to a speedy trial extends to respondents in juvenile delinquency proceedings” … . “An unreasonable delay in prosecuting a juvenile delinquency proceeding following a respondent’s arrest can constitute a violation of due process” … . “To determine whether a respondent’s due process rights were violated by a delay in filing, the court must engage in a balancing of factors, including the extent of the delay, the reason for the delay, the nature of the underlying charge, whether there has been an extended period of pretrial incarceration, and whether there is any indication of prejudice to the defense resulting from the delay” … . “When applying this balancing test, ‘courts must remain acutely cognizant of the goals, character and unique nature of juvenile proceedings'” … . “‘[T]he central goal of any juvenile proceeding—rehabilitation of the juvenile through prompt intervention and treatment—can seem trivialized when a presentment agency delays the filing of a petition'” … .

Here, while the charges were serious and Adonis J. W. did not demonstrate any actual prejudice to his defense attributable to the delay in filing the petition, the presentment agency failed to establish a legitimate reason for the delay. Additionally, the ultimate goal of promptly treating and rehabilitating Adonis J. W. was not furthered by permitting a fact-finding hearing on the petition following the unjustified delay. Matter of Adonis J. W., 2025 NY Slip Op 02788, Second Dept 5-7-25

Practice Point: The constitutional speedy trial rights apply to juvenile delinquency proceedings.

May 7, 2025

Constitutional Law, County Law, Election Law, Municipal Law, Town Law, Village Law

THE “EVEN YEAR ELECTION LAW” (EYEL) IS CONSTITUTIONAL, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the Even Year Election Law (EYEL) does not violate the New York Constitution or the United States Constitution. The decision is complex and cannot be fairly summarized here:

The EYEL amended provisions of County Law § 400, Town Law § 80, Village Law § 17-1703-a (4), and Municipal Home Rule Law § 34 (3) such that elections for most county, town, and village officials would be held on even-numbered years, and would no longer be held on odd-numbered years, effective January 1, 2025 … . Exceptions were made for the offices of town justice, sheriff, county clerk, district attorney, family court judge, county court judge, and surrogate court judge — each of which has a term of office provided in the New York Constitution … — as well as town and county offices with preexisting three-year terms, all offices in towns coterminous with villages, and all offices in counties located in New York City … . Additionally, a new subsection (h) was added to Municipal Home Rule Law § 34 (3) to preclude county charters from superseding the newly enacted County Law § 400 (8).

The EYEL purports to encourage an increased voter turnout in local elections now scheduled in odd-numbered years, which are years without federal or state-wide elections on the ballot, consistent with the State’s public policy of “[e]ncourag[ing] participation in the elective franchise by all eligible voters to the maximum extent” … , and the mandate of the New York Board of Elections to “take all appropriate steps to encourage the broadest possible voter participation in elections” … . County of Onondaga v State of New York, 2025 NY Slip Op 02818, Fourth Dept 5-7-25

May 7, 2025

Appeals, Constitutional Law, Criminal Law

THE DOCTRINE OF ABATEMENT AB INITIO REMAINS VALID; WHERE A DEFENDANT DIES BEFORE THE CONVICTION BECOMES FINAL THROUGH THE APPELLATE PROCESS VACATION OF THE CONVICTION AND DISMISSAL OF THE INDICTMENT IS REQUIRED; HERE BOTH DEFENDANTS HAD BEEN CONVICTED AND DIED BEFORE SENTENCING (FIRST DEPT).

The First Department affirmed Supreme Court in two consolidated cases in which the People unsuccessfully argued the doctrine of abatement ab initio should no longer be followed. The doctrine provides that where a defendant dies before the appellate process is complete the conviction is vacated and the indictment dismissed:

In these consolidated cases (People v Ricardo Cruciani and People v Jessie Nowell), the People, as the appellant, raise similar questions: Whether we should decline to follow, in the particular circumstances of each case, the common-law doctrine of abatement ab initio, which was first pronounced by the Court of Appeals in People v Mintz (20 NY2d 770 [1967]). The abatement ab initio doctrine seeks to protect a defendant’s constitutional due process rights that are afforded by appellate review of a conviction (see People v Matteson, 75 NY2d 745, 747 [1989]). Under this doctrine, the death of a defendant whose conviction has not become final through the appellate process results in the abatement of not only any pending appeal but also all proceedings from the case’s inception. In Cruciani, defendant’s conviction resulted from a jury verdict, but he died before sentencing. In Nowell, defendant’s conviction resulted from a guilty plea, but he died before sentencing. In each case, the trial court granted defense counsel’s motion to vacate the conviction and dismiss the indictment pursuant to the abatement ab initio doctrine. People v Cruciani, 2025 NY Slip Op 02735, First Dept 5-6-25

Practice Point: The doctrine of abatement ab initio requires the vacation of the conviction and dismissal of the indictment where a defendant dies before the appellate process is complete.

May 6, 2025

Appeals, Attorneys, Constitutional Law, Criminal Law

THE CASE WAS REMITTED TO SUPREME COURT TO PROCURE A RULING ON WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; YET DEFENSE COUNSEL FOCUSED ON DEFENDANT’S SENTENCING AS AN ADULT AND ESSENTIALLY IGNORED THE “YOUTHFUL OFFENDER” ISSUE; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL (FOURTH DEPT).

The Fourth Department, reserving decision on the appeal and remitting the matter again, determined defendant did not receive effective assistance of counsel. The sole purpose for initially remitting the matter to Supreme Court was to procure a ruling on whether defendant should be afforded youthful offender status. But defense counsel focused only on defendant’s sentencing as an adult and essentially ignored the “youthful offender” issue. The Fourth Department offered a concise description of the New York State (as opposed to the federal) criteria for ineffective assistance:

Where, as here, a defendant contends that they received ineffective assistance of counsel under both the Federal and New York State Constitutions, “we evaluate the claim using the state standard, which affords greater protection than its federal counterpart” … . “In New York, the standard for effective assistance is ‘meaningful representation’ by counsel” … . The ” ‘state standard . . . offers greater protection than the federal test’ because, ‘under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of [fair process]’ … . Although our courts “remain ‘skeptical’ of ineffective assistance of counsel claims where the defendant is unable to demonstrate any prejudice at all” … , in applying our state standard, we consider prejudice to be ” ‘a significant but not indispensable element in assessing meaningful representation’ ” … . Stated differently, “[w]hile the inquiry focuses on the quality of the representation provided to the [defendant], the claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case” … . “[T]he right to effective representation includes the right to assistance by an attorney who has taken the time to review and prepare both the law and the facts relevant to the defense . . . and who is familiar with, and able to employ[,] . . . basic principles of criminal law and procedure” … . Inasmuch as the defendant “bears the burden of establishing [a] claim that counsel’s performance is constitutionally deficient[,] . . . [the] defendant must demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged failure” … . * * *

The record establishes that, despite the specified purpose of the remittal, defense counsel submitted a memorandum riddled with spelling, grammatical, and syntax errors in which he requested that defendant be resentenced as an adult to a reduced determinate term of imprisonment and an unspecified period of postrelease supervision. Rather than providing an affirmative argument for adjudicating defendant a youthful offender based on the various factors to be considered … , defense counsel merely mentioned youthful offender status in passing to note that which was already known, namely, that the sentencing court had originally failed to address whether defendant should receive youthful offender status and thus never considered certain circumstances related to defendant. Defense counsel thereafter proceeded to make arguments that were relevant to defendant’s initial sentencing as an adult and the appellate challenges thereto but were unrelated to the factors applicable to determining upon remittal whether defendant should be afforded youthful offender status and, in doing so, defense counsel also occasionally misstated the issues considered on defendant’s prior appeals … . People v Nathan, 2025 NY Slip Op 02700, Fourth Dept 5-2-25

Practice Point: Consult this decision for a concise description of the criteria for effective assistance of counsel under the New York State (as opposed to the United States) Constitution.

May 2, 2025

Constitutional Law, Criminal Law, Evidence, Judges

THE QUESTIONING OF DEFENDANT CONTINUED DESPITE HER REPEATED STATEMENTS THAT SHE HAD NOTHING ELSE TO SAY AND WAS DONE TALKING; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defendant had unequivocally and repeated stated that she was “done talking” and had “nothing else to say” during her interrogation by investigators. The interrogators continued questioning her as if they hadn’t heard her assert her right to remain silent:

… [W]hile being interrogated at the police station, defendant stated to the investigators six separate times that she had “nothing else to . . . say” and that she was “done talking.” Even if defendant’s initial statement that she had nothing else to say may have been prompted by her “unwillingness to change [her] story” ,,, , she repeated her desire to stop talking even after the conversation shifted to another topic … . It is clear from a viewing of the interrogation video that defendant repeatedly stated in no uncertain terms that she no longer wished to answer any more questions from the investigators. There was nothing equivocal about defendant’s invocations of the right to remain silent, which were not scrupulously honored by the investigators, who continued the interrogation as if they did not hear what defendant had said.

We thus conclude that the court erred in refusing to suppress any and all statements made by defendant on August 19, 2020 after 12:03 a.m. on the interrogation video. “Inasmuch as there is a reasonable possibility that the erroneous admission of defendant’s inculpatory statements contributed to the verdict, the error in refusing to suppress all of those statements cannot be considered harmless, and reversal is required” … . People v Lipton, 2025 NY Slip Op 02691, Fourth Dept 5-2-25

Practice Point: Any statements made in response to questioning after a defendant has told the interrogators he/she is “done talking” and has “nothing else to say” must be suppressed.