You are here: / Correction Law
, , ,

DEFENDANT, PURSUANT TO CORRECTION LAW 168-A (3)(B), WAS DESIGNATED A “SEXUALLY VIOLENT OFFENDER” BASED SOLELY ON HIS OUT-OF-STATE CONVICTION OF A REGISTRABLE SEXUAL OFFENSE WHICH DID NOT INVOLVE VIOLENCE; THE CORRECTION LAW AS APPLIED TO DEFENDANT VIOLATED HIS RIGHT TO DUE PROCESS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a concurrence and a two-justice dissent, determined designating defendant a “sexually violent offender” based solely upon an out-of-state conviction of a non-violent sexual offense violated defendant’s right to due process. The concurrence argued the Correction Law statute which allows such a “sexually violent offender” designation based on an out-of-state conviction is unconstitutional on its face:

We conclude that designating defendant as sexually violent merely because he had an out-of-state sex conviction requiring out-of-state registration, regardless of whether that underlying offense is violent—as is currently required by the text of Correction Law § 168-a (3) (b)—bears no rational relationship to the legitimate governmental interest of informing the public of threats posed by sex offenders. Indeed, the animating notification purpose of SORA presupposes that the information available to the public as a consequence of a SORA registration is accurate. Where, as here, an offender is designated a sexually violent offender merely because of an out-of-state conviction requiring out-of-state registration, the public is not accurately informed of the true risk posed by the offender. We further conclude that the designation of defendant as a sexually violent offender—augmenting defendant’s SORA registration period from a term of 20 years to his entire lifetime—merely because of the location of the registrable offense does not result in “a criminal designation that rationally fits [defendant’s] conduct and public safety risk” … . People v Malloy, 2024 NY Slip Op 03264, Fourth Dept 6-14-24

Practice Point: The Correction Law (section 168-a (3)(b)) pursuant to which defendant was designated a “sexually violent offender” based solely on an out-of-state registrable offense which did not involve violence was deemed to violate defendant’s right to due process of law.

 

, , , ,

IT WAS ALLEGEDLY EVIDENT FROM THE EMPLOYEE’S JOB APPLICATION THAT HE HAD BEEN IN PRISON; THE ALLEGED FAILURE TO INVESTIGATE RAISED QUESTIONS OF FACT IN SUPPORT OF THE NEGLIGENT HIRING AND SUPERVISION CAUSE OF ACTION; THE CORRECTION LAW DOES NOT PROHIBIT CONSIDERATION OF PRIOR CONVICTIONS (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the negligent hiring and supervision cause of action against defendant LLC stemming from an altercation between plaintiff and the LLC’s employee (McIntosh) should not have been dismissed. It was allegedly evident from McIntosh’s employment application that he had been in prison:

… [P]laintiff raised triable issues of fact as to whether the LLC “should have known of the employee’s propensity for the conduct which caused the injury” … . It is well settled that “an employer has a duty to investigate a prospective employee when it knows of facts that would lead a reasonably prudent person to investigate that prospective employee” … . McIntosh’s handwritten job application provided facts that should have led the LLC to investigate, as he indicated that he worked at the address of a state prison, he earned a “stipend” instead of the typical hourly wage, and one of his supervisors was a corrections officer, or “C.O.” Although “the depth of inquiry prior to hiring, irrespective of convictions, may vary in reasonable proportion to the responsibilities of the proposed employment,” the record shows that the LLC made no effort to investigate … . Its owner-witness admitted that no background check was performed. She did not know whether a restaurant manager called McIntosh’s past employers, and she had no knowledge of his criminal background, as would have been revealed by a call to the past employer … . Contrary to the LLC’s contention, the Correction Law does not prohibit consideration of a job applicant’s prior convictions, but instead provides a balancing test to determine whether there was a “direct relationship between” a prior offense and the job or whether the employment “would involve an unreasonable risk . . . to the safety or welfare of . . . the general public” (Correction Law §§ 752[1]- Darbeau v 136 W. 3rd St., LLC, 2024 NY Slip Op 01672, First Dept 3-26-24

Practice Point: Where an applicant’s job application indicates the applicant had been incarcerated, an employer’s failure to investigate may support a negligent hiring and supervision cause of action. The Correction Law does not prohibit an inquiry into prior convictions.

 

, , , ,

DEFENDANT CANNOT APPEAL THE DENIAL OF HIS MOTION TO DISMISS THE SORA RISK-LEVEL PROCEEDING; HE MUST FIRST BE ADJUDICATED BY THE SORA COURT AND MAY SUBSEQUENTLY APPEAL REQUESTING AN ANNULMENT (FIRST DEPT). ​

The First Department, in full-fledged opinion by Judge Pitt-Burke, determined the defendant could not appeal an interlocutory order which denied his motion to dismiss the SORA proceeding. Defendant had been convicted of a federal offense and argued the Penal Law did not criminalize the use of morphed images which did not depict actual sexual conduct by a child. The First Department held the defendant must go through with the SORA hearing and subsequently make this argument on appeal:

By its plain language, Correction Law § 168-n (3) only permits an appeal “as of right” from the SORA court’s risk level determination order. To find otherwise would be to ignore the legislative intent of the statutory language … . Namely, the procedural safeguards afforded to defendant in Correction Law § 168-n (3) require the SORA court to conduct a risk assessment hearing before it renders an order requiring him to register as a sex offender in New York and assigns him a risk level designation. Until a hearing is held and a determination made, the defendant’s liberty interest as related to the SORA proceeding has not yet been adjudicated (see Correction Law § 168-n [3]). …

Under to CPLR 5701 (a) (2) (v), “[a]n appeal may be taken to the appellate division as of right . . . from an order . . . where the motion it decided was made upon notice and it . . . affects a substantial right.” Even assuming defendant’s interpretation of Correction Law § 168-n (3) is correct, the interlocutory order appealed from does not require defendant to register as a sex offender. In fact, the very procedural safeguards noted above prevent the SORA court from issuing such an order without a hearing. People v Lewis, 2024 NY Slip Op 00248, First Dept 1-18-24

Practice Point: Defendant could not appeal the denial of his motion to dismiss the SORA risk-level proceeding before it was conducted. Defendant contended the federal offense of which he was convicted involved morphed images that did not depict actual sexual conduct by a child, a circumstance, he argued, not covered by the New York Penal Law.

 

,

PETITIONER PATHOLOGIST IS BEING SUED BY AN INMATE WHO ALLEGES MISDIAGNOSIS OF A BIOPSY; BECAUSE THE REQUEST FOR THE BIOPSY CAME FROM A DOCTOR WHO WAS UNDER CONTRACT WITH THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS), AND NOT DIRECTLY FROM DOCCS, THE STATE IS NOT OBLIGATED TO DEFEND OR INDEMNIFY THE PATHOLOGIST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming the Appellate Division, determined the state did not have an obligation to defend or indemnify the petitioner, a pathologist, who concluded the lump under an inmate’s arm was benign. Dr. Cotie, a physician who provided services to inmates under a contract with the Department of Corrections and Community Supervision (DOCCS), had taken a biopsy and had sent it to petitioner for analysis. One year after the “benign” finding, the inmate was diagnosed with Hodgkin’s lymphoma. Because the request for the biopsy analysis did not come directly from DOCCS, pursuant to the language in the Correction Law, the state was not required to defend or indemnify the petitioner pathologist:

Under Correction Law § 24-a, the provisions of Public Officers Law § 17 are made applicable to “any person holding a license to practice a profession. . . who is rendering or has rendered professional services authorized under such license while acting at the request of the department or a facility of the department in providing health care and treatment or professional consultation to incarcerated individuals of state correctional facilities” … . The Attorney General has interpreted this language to mean that the State’s obligation to defend and indemnify applies only where there has been an express request by DOCCS for the services of a particular provider—i.e., a formal arrangement or understanding made in advance between DOCCS and the healthcare professional. * * *

Petitioner performed pathology services on the biopsy sample as a result of his contract with the hospital, not because he was acting at DOCCS’ request or executing any public responsibility associated with the care or treatment of incarcerated individuals. Matter of Jun Wang v James, 2023 NY Slip Op 06405, CtApp 12-14-23

Practice Point: Unless DOCCS directly and expressly requests that a doctor provide a service for an inmate, the state will not indemnify or defend the doctor in a lawsuit by an  inmate. A request from a doctor under contract with DOCCS will not trigger indemnification or defense.

 

, , ,

THE CORRECTION LAW REQUIRING A SEX OFFENDER TO VERIFY HIS OR HER ADDRESS EVERY NINETY DAYS IS VOID FOR VAGUENESS AS APPLIED TO HOMELESS SEX OFFENDERS (FIRST DEPT). ​

The First Department, vacating defendant’s guilty pleas, in a full-fledged opinion by Justice Renwick, determined the Correction-Law requirement that a sex offender verify his or her address every 90 days is void for vagueness as applied to homeless sex offenders:

… [T]he question is whether the reporting requirements of Correction Law § 168-f(3) provided sufficient notice to defendant of what conduct was mandated by the statute when he left his previous residence address, a homeless shelter, but possessed no new permanent or temporary residence with an address. According to its plain language, Correction Law § 168-f(3) mandates that offenders register a change of residence by providing a specific new “address.” The statute, however, contains no objective standard or guidelines that would put homeless sex offenders without an address on notice of what conduct is required of them. Under these circumstances, such transient offenders can only guess at what is meant by the requirement that they register their new “address.” Similarly, the change of address reporting requirement fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement. People v Allen, 2023 NY Slip Op 00496, First Dept 2-2-23

Practice Point: The Correction Law requiring a sex offender to verify his or her address every ninety days is void for vagueness as applied to homeless sex offenders.

 

, , ,

PETITIONER, A FORMER CORRECTION OFFICER SEEKING REINSTATEMENT, WAS ENTITLED TO THE RECORDS OF THE PSYCHOLOGICAL EXAMINATION WHICH FOUND HIM UNFIT; THE WAIVER OF THE RIGHT TO REVIEW THOSE DOCUMENTS, SIGNED BY PETITIONER, WAS A NULLITY (THIRD DEPT).

​The Third Department, in a full-fledged opinion by Justice Pritzker, reversing Supreme Court, determined petitioner, a former correction officer seeking reinstatement, was entitled to discovery of the records of the psychological examination which found him unfit to serve as a correction officer. The court held that the waiver of the right to review such documents (signed by the petitioner at the outset) was a nullity:

… [W]e do not agree that the limited review procedures established in Correction Law § 8 can lawfully be used to side-step and effectively eviscerate the robust protections set forth in 4 NYCRR 5.9 (e) (3), which directly apply to those seeking reinstatement under Civil Service Law § 71 … . Nevertheless, although both statutes have different purposes — Correction Law § 8 is designed to eliminate applicants “who exhibit psychological disorders that would indicate their unsuitability for the job” … , whereas Civil Service Law § 71 was enacted for the “protection of an employee separated from the service by reason of a disability resulting from occupational injury or disease” … — both purposes can be achieved, and the statutes harmonized by permitting the use of Correction Law § 8 testing while preserving the review procedure set forth in 4 NYCRR 5.9 relative to employees falling within Civil Service Law § 71 … . Notably, despite the use of Correction Law § 8 testing, this matter remains distinctly a Civil Service Law § 71 reinstatement case.

… [P]etitioner is minimally entitled to receive the clandestine psychological report that formed the very basis for the disqualification for reinstatement, as well as all other rights attendant to a hearing held pursuant to article 3 of the State Administrative Procedure Act. … [T]o the extent that petitioner signed a waiver purporting to extinguish these rights, the waiver is a nullity inasmuch as respondent’s policy requiring all applicants to sign the consent and release form is an unpromulgated rule under the definition of “[r]ule” within State Administrative Procedure Act § 102 (2) (a) (i), and therefore is without effect … . Matter of Williams v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 07280, Third Dept 12-22-22

Practice Point: Petitioner, a former correction officer seeking reinstatement, was entitled to the records of the psychological exam which found him unfit. The waiver of the right to review the documents, signed by petitioner at the outset, was based upon an unpromulgated rule and therefore was of no effect.

 

, ,

AT THE TIME DEFENDANT COMMITTED THE OFFENSE IN 2007, IT WAS NOT A REGISTRABLE OFFENSE UNDER THE SEX OFFENDER REGISTRATION ACT; THEREFORE DEFENDANT’S MOTION TO SEAL THE RECORD SHOULD NOT HAVE BEEN SUMMARILY DENIED; MATTER REMITTED FOR A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the crime for which defendant was convicted, at the time of its commission in 2007, was not a registrable offense under the Sex Offender Registration Act (SORA). Therefore defendant’s motion to seal the record should not have been summarily denied. The matter was remitted for a hearing:

… [A]t the time of the defendant’s conviction for attempted promoting prostitution in the third degree (Penal Law §§ 110.00, 230.25), the definition of “sex offense” in Correction Law § 168-a(2) did not include convictions of an attempt to commit Penal Law § 230.25 … . Further, the defendant has never been required to register under SORA for this conviction. Accordingly, under the plain language of the statute, the defendant has not been not [sic] convicted of “an offense for which registration as a sex offender is required pursuant to article six-C of the correction law” (CPL 160.59[1][a] …). Thus, the Supreme Court should not have determined that the defendant’s conviction falls into the category of excluded offenses … . Likewise, although CPL 160.59(3)(a) provides that the reviewing court must summarily deny the defendant’s application when, inter alia, “the defendant is required to register as a sex offender pursuant to article six-C of the correction law,” here, the defendant is not required to do so.

As the defendant’s motion was not subject to mandatory denial under CPL 160.59(3) and the district attorney opposed the defendant’s motion, a hearing on the defendant’s motion was required … . People v Miranda, 2022 NY Slip Op 03009, Second Dept 5-4-22

Practice Point: If an offense is now a registrable offense pursuant to the Sex Offender Registration Act, but was not a registrable offense when committed (here in 2007), a defendant’s motion to seal the record cannot be summarily denied. The motion may still be denied after a hearing, however.

 

, ,

THE CORRECTION LAW DOES NOT REQUIRE AN INMATE RESIDENTIAL TREATMENT FACILITY (RTF) TO PROVIDE SEX OFFENDERS WHO ARE ABOUT TO BE RELEASED WITH REINTEGRATION PROGRAMS IN THE OUTSIDE COMMUNITY, AS OPPOSED TO WITHIN THE PRISON (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the “residential treatment facility” (RTF) within the Fishkill Correctional Facility complied with the Correction Law. Plaintiffs alleged Fishkill did not provide sufficient opportunities outside the prison facility for reintegrating inmates into the community. Supreme Court agreed. The Third Department held that the Correction Law does not indicate the programs for reintegrating inmates must be offered outside the facility:

A resident in an RTF “may be permitted to leave such facility in accordance with the provisions of [Correction Law § 73]” …. To that end, DOCCS “shall be responsible for securing appropriate education, on-the-job training and employment” for RTF residents (Correction Law § 73 [2]). Furthermore, “[p]rograms directed toward the rehabilitation and total reintegration into the community of persons transferred to a residential treatment facility shall be established” (Correction Law § 73 [3]). That said, nothing in Correction Law § 73 (2) or (3) states specifically where the opportunities provided in a rehabilitative program established by DOCCS or where the education, training or employment to be secured by DOCCS must be located. In other words, there is no statutory mandate providing that DOCCS’s obligations under Correction Law § 73 be outside the confines of Fishkill. Alcantara v Annucci, 2022 NY Slip Op 02163, Third Dept 3-31-22

 

, , ,

THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DID NOT ADEQUATELY EXPLAIN THE STATUTORY FACTORS SUPPORTING ITS DENIAL OF PETITIONER’S REQUEST FOR A CERTIFICATE OF GOOD STANDING, WHICH WOULD ALLOW THE FORMER INMATE TO WORK AS A SCHOOL BUS DRIVER; THEREFORE THE DENIAL WAS ARBITRARY; MATTER REMITTED FOR FURTHER PROCEEDINGS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the Department of Corrections and Community Supervision’s (DOCCS’s) denial of petitioner’s application for a certificate of good conduct (CGC) was not supported by the agency’s cursory rulings, rendering the denial arbitrary and requiring remittal for further proceedings. Petitioner, a former inmate with a sexual-offense conviction, sought the certificate of good standing in order to work as a school bus driver:

… [T]he challenged determination is a form letter with blanks to be filled in, and the Assistant Commissioner made no effort to explain his reasoning beyond checking a box next to a sentence stating that petitioner’s application was being denied because “[t]he relief to be granted by the [CGC] is inconsistent with public interest.” There is no question that such a “cursory letter decision,” which mentions only one of the statutory factors set forth in Correction Law § 703-b and offers no discussion of the “grounds for the denial[,] precludes meaningful review of the rationality of the decision” … .

… Correction Law article 23 requires more than a naked reliance on the crime of conviction, and the Assistant Commissioner’s affidavit … reflects that DOCCS “failed to comply with the statute and acted in an arbitrary manner” … . Although the record contains other information regarding the circumstances of petitioner’s conviction and his subsequent history that might render the denial of his application rational, a “court is powerless to sanction the determination by substituting what it deems a more appropriate or proper basis” … . Matter of Streety v Annucci, 2022 NY Slip Op 02170, Third Dept 3-31-22

​Practice Point: If an administrative agency issues a ruling which does adequately explain the statutory factors upon which the ruling is based, making a review of the bases of the ruling impossible, the ruling may be characterized as “arbitrary” and annulled.

, ,

BECAUSE OF UNAMBIGUOUS STATUTORY LANGUAGE, DEFENDANT’S MICHIGAN CONVICTION WAS DEEMED A “SEXUALLY VIOLENT OFFENSE” EVEN THOUGH THE SAME CONDUCT IN NEW YORK WOULD NOT QUALIFY AS A “SEXUALLY VIOLENT OFFENSE;” STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the result, while admittedly unfair, is required by unambiguous statutory language. For predicate felony purposes, a Michigan conviction was deemed a “sexually violent offense,” even though the same conduct would not constitute a “sexually violent offense” if committed in New York:

A ” ‘[s]exually violent offender’ means a sex offender who has been convicted of a sexually violent offense” (Correction Law § 168-a [7] [b]). A ” ‘[s]exually violent offense,’ ” among other things, is “a conviction of an offense in any other jurisdiction which includes all of the essential elements of any [New York] felony [enumerated in section 168-a (3) (a)] or conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (§ 168-a [3] [b] [emphasis added]). It is undisputed that defendant was convicted of a felony in Michigan “for which [he] is required to register as a sex offender in [that] jurisdiction” (id.). Defendant’s Michigan conviction thus constitutes a ” ‘[s]exually violent offense’ ” as defined by the second of the two disjunctive clauses that comprise section 168-a (3) (b). It follows that defendant was properly designated a sexually violent offender, even though he would not qualify as such had he committed the same conduct in New York … . People v Talluto, 2022 NY Slip Op 00575, Fourth Dept 1-28-22

 

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 © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy