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THE STATUTE PROHIBITING SEX OFFENDERS FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS AS APPLIED TO SEX OFFENDERS CONVICTED BEFORE THE STATUTE WENT INTO EFFECT DOES NOT VIOLATE THE EX POST FACTO CLAUSE; HERE PETITIONER WAS INCARCERATED PAST HIS PAROLE DATE BECAUSE HOUSING WHICH COMPLIED WITH THE SCHOOL GROUNDS LAW COULD NOT BE FOUND (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, three judges dissenting, determined the statute (Executive Law 259-c [14]) prohibiting sex offenders from being within 1000 feet of school grounds as applied to sex offenders who were convicted before the statute went into effect does not violate the Ex Post Facto Clause of the US Constitution. Here the application of the statute resulted in petitioner remaining incarcerated past his parole release date because housing which met the school-grounds requirement could not be found:

The United States Constitution’s Ex Post Facto Clause prohibits states from “retroactively alter[ing] the definition of crimes or increas[ing] the punishment for criminal acts” … . The ex post facto prohibition “applies only to penal statutes” and “where the challenged statute does not seek to impose a punishment, it does not run afoul of the Ex Post Facto Clause” … . * * *

We are unable to conclude from this record that prolonged incarceration is a common result of Executive Law § 259-c (14), rather than an idiosyncratic effect, and the Supreme Court has “expressly disapproved of evaluating the civil nature of [a statute] by reference to the effect that [statute] has on a single individual” … . Petitioner has failed to meet the heavy burden of demonstrating, by the clearest proof, that the effects of Executive Law § 259-c (14) are “so punitive . . . as to negate [the legislature’s] intention to deem it civil” … . People ex rel. Rivera v Superintendent, Woodbourne Corr. Facility, 2023 NY Slip Op 03299, CtApp 6-15-23

Practice Point: Here petitioner remained incarcerated past his parole release date because housing which complied with the school-grounds statute (prohibiting sex offenders from being within 1000 feet of school grounds) could not be found. Even though petitioner was convicted before the school-grounds statute was enacted, the majority concluded the statute does not violate the Ex Post Facto Clause. There were three dissenting judges.

 

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THE STATUTE PROHIBITING SEX OFFENDERS ON PAROLE FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS APPLIES TO YOUTHFUL OFFENDERS (CT APP). ​

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Halligan, determined the statute prohibiting a sex offender on parole from being within 1000 feet of school grounds applies to youthful offenders:

The Sexual Assault Reform Act (SARA) imposes a mandatory restriction prohibiting a person who is “serving a sentence” for an enumerated offense against a minor victim and is released on parole from coming within 1,000 feet of school grounds (see Executive Law § 259-c [14] …). The question presented in this appeal is whether that restriction applies to youthful offenders. We hold that it does.

Petitioner pleaded guilty to the attempted second-degree rape of a 13-year-old victim … . Petitioner was 18 years old at the time of the offense and was adjudicated a youthful offender … . He was initially sentenced to a 10-year period of probation, but after violating the terms of his probation, he was resentenced to an indeterminate term of imprisonment. The Board of Parole granted petitioner an open date (that is, the earliest possible release date) of August 2018, subject to numerous conditions of release. As relevant here, petitioner was required to abide by SARA’s school grounds condition and thus would not be released until he identified a SARA-compliant residence. Unable to obtain suitable housing, petitioner remained imprisoned. * * *

The purpose of the school grounds condition is to bar offenders who pose the “highest risk to children” from entering school grounds … . Certainly, someone accorded youthful offender status can fall into this category. While we appreciate that the consequences of imposing the school grounds condition may be severe, the legislature has authorized the imposition of other long-term consequences, such as a lengthy probationary term, on youthful offenders … . And once the youthful offender serves their sentence, the school grounds condition is lifted and the youthful offender will receive the “fresh start” provided to them by statute … . People v Superintendent, Livingston Corr. Facility, 2023 NY Slip Op 03298, CtApp 6-15-23

Practice Point: The statute prohibiting sex offenders on parole from being within 1000 feet of school grounds applies to youthful offenders.

 

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DEFENDANT’S POSITIVE PERFORMANCE IN THE PRISON SEX OFFENDER TREATMENT AND EDUCATIONAL PROGRAMS, GIVEN THE SERIOUSNESS OF HIS OFFENSES, DID NOT WARRANT A DOWNWARD DEPARTURE FROM LEVEL THREE TO LEVEL TWO; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, affirming the appellate division, over a two-justice dissent, determined defendant’s request for a downward departure in this SORA risk-level proceeding (level three to level two) was properly denied:

In 1988, defendant was convicted after trial of four counts of first-degree rape and four counts of first-degree sodomy, among other crimes, for raping or sexually assaulting five women in their homes at knifepoint during burglaries that occurred over the course of a year. In anticipation of defendant’s conditional release from imprisonment in 2020, the Board of Examiners of Sex Offenders assessed defendant 155 points on the risk assessment instrument (RAI), presumptively designating him a level three sexually violent offender for purposes of the Sex Offender Registration Act (SORA).

Defendant did not dispute the accuracy of the Board’s point assessment, but he requested that the court depart downward to risk level two. To that end, defendant argued that he did not present a high risk of sexual reoffense, as evidenced by his positive performance in sex offender treatment and educational programs while incarcerated (including obtaining his general equivalency diploma and college-level education credits), limited history of disciplinary infractions, age at time of release (51 years old), familial support, and his scores on two alternative risk assessment instruments. Defendant also asserted that he would be subject to supervision regardless of his risk designation as part of the terms of his conditional release, and that a level three designation would make it more difficult for him to locate housing. People v Anthony, 2023 NY Slip Op 03303, CtApp 6-15-23

Practice Point: Here defendant’s age (51) and positive performance in the prison sex offender treatment and educational programs, given the seriousness of his offenses, did not warrant a SORA risk-level downward departure from level three to level two. There was a strong two-judge dissent.

 

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IN THESE ACTIONS BY INVESTORS AGAINST TRUSTEES STEMMING FROM THE COLLAPSE OF RESIDENTIAL MORTGAGE-BACKED SECURITIES (RMBS) THE COURT HELD (1) CLAIMS AGAINST TRUSTEES ARE NOT PROHIBITED BY A NO-ACTION CLAUSE (2) THE TRUSTEES WERE NOT REQUIRED TO ENFORCE REPURCHASE OBLIGATIONS AND (3) THE TORT CLAIMS WERE DUPLICATIVE OF THE BREACH OF CONTRACT CLAIMS (CT APP).

​The Court of Appeals, reversing (modifying) the appellate division, over two dissents, in these actions by investors against the trustees stemming from the collapse of residential mortgage-backed securities [RMBS], determined (1) claims against a trustee are not precluded by a “no action” clause, (2) trustees are not required to enforce repurchase obligations, and (3) the tort claims are duplicative of the breach of contract claims:

… RMBS [residential mortgage-backed securities] are financial instruments, popular in the mid-2000s, backed by individual mortgage loans …  The securitization process involves a “sponsor” who acquires a bundle of loans from banking institutions (“originators”) and sells the pooled loans to a “depositor,” who places the loans into a trust … . The trust issues certificates purchased by investors, who are entitled to a portion of the revenue stream from the borrowers’ payments … . The mortgage loans in the trust are serviced by a “servicer,” a party typically affiliated with the sponsor or originator. Each trust has a Trustee which acts on behalf of the Trust and whose responsibilities are prescribed by the securitization trusts’ governing agreements. While our previous RMBS cases have been brought by RMBS trustees, investors, or their insurers against RMBS sponsors, depositors, servicers, and originators (collectively, obligated parties) to recover for losses on the certificates, here the investors are suing the RMBS Trustees. * * *

… [C]laims against the trustee . . . cannot be prohibited by a no-action clause” … . “Because a standard no-action clause vests in the trustee all of the securityholders’ rights to bring suit, making the trustee the only path to a remedy, courts have been unwilling to enforce such clauses when the trustee’s conflicts or irrationality bar that path to relief” … . … [t]he Trustee cannot not sue itself ,,, and therefore compliance was not required. * * *

Defendants moved to dismiss plaintiffs’ claims that they breached the governing agreements by failing to enforce repurchase obligations, arguing that these agreements do not impose such a duty on trustees…. . We … hold that the governing agreements do not impose on defendants an affirmative duty to enforce repurchase obligations and so those claims should be dismissed. * * *

We hold that, to the extent any tort claims remain, they should be dismissed as duplicative of the breach of contract claims. IKB Intl., S.A. v Wells Fargo Bank, N.A., 2023 NY Slip Op 03302, CtApp 6-15-23

Practice Point: Here residential mortgage-backed securities (RMBS) investors sued the trustees. The actions were not prohibited by no-action clauses. The trustees were not obligated to enforce repurchase agreements. And the tort claims were duplicative of the breach of contract claims.

 

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ONCE THE APPELLATE DIVISION DETERMINED A SORA RISK FACTOR DID NOT APPLY, BRINGING DEFENDANT’S RISK ASSESSMENT FROM A LEVEL THREE TO A LEVEL TWO, THE APPELLATE COURT HAD THE AUTHORITY TO REMIT THE MATTER TO COUNTY COURT TO CONSIDER, FOR THE FIRST TIME, WHETHER AN UPWARD DEPARTURE WAS WARRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the appellate division appropriately remitted the matter to County Court after the appellate court reduced the risk assessment by 10 points because the People conceded the absence of forcible compulsion. Eliminating that 10 point assessment resulted in reducing defendant from a level three offender to a level two offender. The remittal was for the purpose of allowing County Court to consider an upward departure, which the court did not consider because defendant had been deemed a presumptive level three offender at the time of the SORA hearing:

Here, the People prevailed before the SORA court on their requested allocation of points under the RAI [risk assessment instrument] and risk level. When the Appellate Division reversed on the allocation of points and the risk level dropped accordingly, it remitted to allow the SORA court to consider a departure request for the first time. Defendant and our dissenting colleague object, contending that because this upward departure request was not made during the original SORA proceeding, the SORA court made no ruling “adverse” to the People, and the Appellate Division therefore could not “review” this “unpreserved” departure question and order remittal upon reversal. But this argument confuses the question of whether remittal was appropriate corrective action with a question of preservation … . This is not a case in which a party failed to present an issue to the SORA court and then asked the Appellate Division to nonetheless resolve that same question; the Appellate Division did not rule on the merits of the departure but remitted it for the SORA court to do so in the first instance … . * * *

Curbing the Appellate Division’s power to remit for consideration of departure requests when it disagrees with the hearing court’s point assessment and changes an offender’s presumptive risk level would undermine SORA’s objective and unduly constrain the Appellate Division’s authority to order appropriate remedial action.  People v Weber, 2023 NY Slip Op 03301, CtApp 6-15-23

Practice Point: Here in this SORA risk level proceeding, the appellate division appropriately remitted the matter to County Court to determine whether an upward departure was warranted. The appellate division had found a risk factor did not apply, reducing defendant’s risk level from three to two. County Court had not considered an upward departure in the original SORA proceeding because defendant’s presumptive risk level was already level three.

 

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EVEN THOUGH THE SORA RISK LEVEL CAME OUT THE SAME (115 POINTS), THE JUDGE SHOULD NOT HAVE FIRST REMOVED 15 POINTS WHICH WERE BASED ON AN INAPPLICABLE RISK FACTOR AND THEN ADDED 15 POINTS BASED ON A RISK FACTOR NOT INCLUDED IN THE RISK ASSESSMENT; THAT CONSTITUTED AN UPWARD DEPARTURE WITHOUT NOTICE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a three-judge concurrence, reversing the appellate division, determined the judge in the SORA risk-level proceeding should not have departed from the presumptive risk level based on an issue of which the defendant was not given 10 days notice. The risk assessment included 15 points for refusing sex offender treatment but it was clear defendant did not refuse treatment. Rather, he was prohibited from receiving the treatment because of his prison disciplinary history. The judge agreed the 15 points for refusing treatment should be removed, but then added 15 points based on the defendant’s disciplinary record, a risk factor which was not included in the Board’s risk assessment:

Here, the proceeding failed to comport with due process because defendant was provided no notice or meaningful opportunity to be heard in response to the District Attorney’s request for an upward departure first interposed during the SORA hearing in response to the court’s invitation. The Board recommended the court classify defendant as a level three offender based on his risk factor score of 115 points and did not recommend an upward departure or that the court consider defendant’s disciplinary history for purposes aside from a factor 13 point allocation. Although the District Attorney agreed with the Board that defendant should be classified as a level three risk, the District Attorney reached that conclusion not on the total point assessment contained in the RAI but rather on an independent basis that defendant’s disciplinary history was sufficiently egregious to warrant an upward departure. Once the District Attorney announced its deviation from the reasons supporting the Board’s proposed risk level classification, defendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure. The record shows that the court decided the issue without an adjournment, without allowing defendant to present rebuttal arguments or collect additional evidence, and without any input from defense counsel. The court erred by proceeding in this manner.  People v Worley, 2023 NY Slip Op 03300, CtApp 6-15-23

Practice Point: Even where the total number of SORA risk level points remains unchanged from that recommended by the Board, the judge cannot remove one inapplicable risk factor and then add a risk factor not recommended by the Board without affording defendant 10 days notice and an opportunity to be heard.

 

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DEFENDANT WAS WEARING A STUN BELT DURING THE TRIAL WITHOUT THE JUDGE’S OR PROSECUTOR’S KNOWLEDGE; THE MAJORITY HELD THIS WAS NOT A MODE OF PROCEEDINGS ERROR; A TWO-JUDGE DISSENT DISAGREED (CT APP).

The Court of Appeals, over a two-judge dissent, determined the fact that defendant was wearing a stun belt without the knowledge of the judge or the prosecutor was not a mode of proceedings error. However questions remain about whether defendant received effective assistance of counsel (failure to object) remain and a hearing on the motion to vacate the conviction on that ground is required. The dissent argued the stun-belt-error constituted a mode of proceedings error requiring reversal:

It is undisputed that sheriff officials required defendant to wear a stun belt at trial, that neither the People nor the trial court were aware of that fact, and that defendant failed to preserve any argument concerning the stun belt. Because the trial court did not articulate a particularized need for defendant to wear a stun belt, the use of that restraint was error … . The courts below thus did not abuse their discretion by summarily denying the portion of defendant’s CPL 440.10 motion based on his unpreserved assertion of a Buchanan [13 NY3d 1] error, which could have been raised before the trial court.

The courts below erred by summarily denying the portion of defendant’s motion concerning his ineffective assistance of counsel claim. Given the conceded Buchanan violation, factual issues exist concerning trial counsel’s effectiveness. For instance, County Court should determine if counsel had a legitimate explanation for declining to object. There has been no hearing concerning whether defendant voiced his concerns about wearing the stun belt to his trial attorney as he contends … . Further, defendant submitted evidence in support of his motion which raises factual questions as to whether he consented to wearing the stun belt at trial … . Defendant’s ineffective assistance claim should be decided under the applicable standard … on a full record following a hearing … . People v Bradford, 2023 NY Slip Op 03187, CtApp 6-13-23

Practice Point: Before a defendant is required to wear a stun belt during trial, the judge must explain the reasons on the record. Here neither the judge nor the prosecutor was aware defendant was wearing a stun belt. The majority determined the belt did not constitute a mode of proceedings error. The two-judge dissent disagreed.

 

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THE JUDGE DID NOT CONDUCT THE REQUIRED “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO PROCEED PRO SE; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, reversing defendant’s conviction, in a memorandum decision which did not describe the facts, determined the judge did not conduct a “searching inquiry” before allowing defendant to proceed pro se:

The order of the Appellate Division should be reversed, and a new trial ordered. In contrast to People v Duarte (37 NY3d 1218 [2022]), the trial court here recognized defendant as having unequivocally requested to proceed pro se. However, the court failed to conduct the required “‘searching inquiry’ to ensure that the defendant’s waiver [of the right to counsel] is knowing, intelligent, and voluntary” (People v Silburn, 31 NY3d 144, 150 [2018] … ). People v Holmes, 2023 NY Slip Op 03186, CtApp 6-13-23

Practice Point: When a defendant requests to go ahead with a trial without an attorney, the judge must conduct a “searching inquiry” to determine if the waiver of the right to counsel is knowing, intelligent and voluntary. The failure to do so requires and new trial.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR NEGLIGENT SUPERVISION OF DEFENDANT INVESTMENT BANK’S EMPLOYEE WHO ALLEGEDLY DEFRAUDED PLAINTIFFS OF $25 MILLION TO COVER THE EMPLOYEE’S LOSSES; THE ARGUMENT THAT PLAINTIFFS COULD NOT SUE THE BANK BECAUSE THEY WERE NOT BANK CUSTOMERS WAS REJECTED (CT APP).

​The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, reversing the appellate division, determined plaintiffs (charitable foundation) stated a cause of action against defendants (investment bank) for negligent supervision of an employee who allegedly defrauded the foundation of $25 million. Plaintiffs were not customers of defendants (investment bank). Rather, plaintiffs were approached by defendants’ employee to invest $25 million, allegedly as part of a fraudulent scheme to cover the employee’s losses. The argument that plaintiffs could not sue because they were not defendants’ customers was rejected by the majority:

… [T]he complaint adequately alleged that defendants were on notice of the employee’s propensity to commit fraud prior to his interactions with plaintiffs and their resulting losses. * * *

When an employer has notice of its employee’s propensity to engage in tortious conduct, yet retains and fails to reasonably supervise such employee, the employer may become liable for injuries thereafter proximately caused by its negligent supervision and retention … . As every Department of the Appellate Division has recognized, a defendant is on notice of an employee’s propensity to engage in tortious conduct when it knows or should know of the employee’s tendency to engage in such conduct … . * * *

… [P]laintiffs were not customers of defendants, as that term is typically understood, but plaintiffs alleged that they were prospective customers who were solicited by [defendants’ employee] to participate in a financing arrangement related to one of defendants’ legitimate business deals, supported by defendants’ genuine documentation and information, which he was given access to by defendants as part of his employment. We hold that these allegations support the existence of a duty on the part of defendants to non-negligently supervise [the employee] for plaintiff’s benefit … . Moore Charitable Found. v PJT Partners, Inc., 2023 NY Slip Op 03185, CtApp 6-13-23

Practice Point: Here the complaint stated a cause of action for negligent supervision against an investment bank based on fraud allegedly committed by a bank employee, even though the plaintiffs were not customers of the bank. The Court of Appeals found a duty to supervise the employee for the plaintiffs’ benefit.

 

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ELECTRONIC LOGGING DEVICES (ELD’S) WHICH KEEP TRACK OF COMMERCIAL TRUCKERS’ LOCATION, HOURS OF OPERATION AND MILES DO NOT FACILITATE UNREASONABLE SEARCHES; THE TRUCKING INDUSTRY IS HEAVILY REGULATED AND THE ELD’S AIM TO PREVENT DRIVER FATIGUE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined the electronic logging devices (ELD’s) which record the location, engine hours and mileage of commercial motor vehicles (CMV’s) do not facilitate unreasonable searches, The commercial trucking industry has been regulated for decades to prevent accidents due to drivers’ fatigue and the ELD’s contribute to that end:

Before us is a facial challenge to the constitutionality of New York regulations adopting a rule promulgated by the Federal Motor Carrier Safety Administration requiring the installation of electronic logging devices in commercial motor vehicles. We hold that the warrantless inspections authorized by the regulations fall within the administrative search exception to the warrant requirement and do not constitute unreasonable searches and seizures under article I, § 12 of the State Constitution. * * *

… [P]etitioners correctly concede that there is a long tradition of commercial trucking being subject to comprehensive regulations. Regulation of commercial trucking, including regulation of “the maximum hours of service for commercial drivers,” extends back more than eighty years both in New York and on the federal level … . Those regulations are in keeping with this State’s “vital and compelling interest in safety on the public highways” … .

CMV operators therefore have “a diminished expectation of privacy in the conduct of that business because of the degree of governmental regulation” … , and “may reasonably be deemed to have relinquished a privacy-based objection” to an “intrusion that will foreseeably occur incident” to applicable regulations … . More particularly, … commercial truck drivers have a diminished expectation of privacy in the location of their vehicles because of their participation in a pervasively regulated industry. Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 2023 NY Slip Op 03184, CtApp 6-13-23

Practice Point: Electronic Logging Devices (ELD”s) which keep track of the location, hours of operation and mileage of commercial trucks aim to prevent driver fatigue and do not facilitate unreasonable searches.

 

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