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IN ORDER TO KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE THE RIGHT TO COUNSEL, THE DEFENDANT NEED NOT BE INFORMED OF HIS MAXIMUM SENTENCING EXPOSURE IN YEARS; THE “SPEEDY TRIAL” TIME ASSOCIATED WITH THE JOINDER OF A CO-DEFENDANT FOR TRIAL IS CHARGED TO THE DEFENDANT, EVEN WHERE THE DEFENDANT HAD NOT YET BEEN ARRAIGNED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion by Judge Rivera, affirming the Appellate Division, determined (1) in order to effectively waive the right to counsel, a defendant need not be informed of his maximum sentencing exposure in years, and (2) the pre-arraignment delay associated with the joinder for trial with a co-defendant is not chargeable to the People:

Defendant Anthony Blue challenges his criminal conviction for five counts of second-degree burglary. Blue argues that a criminal defendant cannot make a knowing, voluntary, and intelligent waiver of the right to counsel unless the trial judge specifically apprises the defendant of his maximum sentencing exposure in years. Rather than imposing a bright-line rule such as this, we have said that a court must ensure a defendant is adequately warned of the dangers and disadvantages of self-representation before allowing him to proceed pro se. A review of the record here confirms that Blue had such an understanding at the time he waived his right to counsel.

Blue also argues that his indictment should have been dismissed on statutory speedy-trial grounds. CPL 30.30 (4) (d), broadly speaking, excludes from the time chargeable to the People a reasonable period of delay when a defendant is joined for trial with a co-defendant. Blue contends this provision does not apply to pre-arraignment time, but the Appellate Division correctly concluded that it does. Thus the 57 days between indictment and arraignment chargeable to Blue’s co-defendant were also chargeable to Blue, even though he had not yet been arraigned. People v Blue, 2024 NY Slip Op 05175, CtApp 10-22-24

Practice Point: A defendant can effectively waive the right to counsel without being informed of his maximum sentencing exposure in years.

Practice Point: Even though defendant had not yet been arraigned, the time associated with joining a co-defendant for trial was chargeable to the defendant.

 

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DEFENDANT HAD A RIGHT TO BE PRESENT DURING THE SANDOVAL/MOLINEUX DISCUSSIONS OF THE ADMISSIBILITY OF HIS PRIOR CONVICTIONS; THE FACT THAT THE JUDGE ANNOUNCED HIS SANDOVAL/MOLINEUX RULINGS IN THE DEFENDANT’S PRESENCE WAS NOT ENOUGH; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, reversing defendant’s conviction, in a full-fledged opinion by Judge Rivera, determined defendant had a right to be present during the Sandoval/Molineux discussions concerning the admissibility of defendant’s prior convictions. The fact that the judge announced his rulings in defendant’s presence was not enough:

We reverse defendant’s conviction and grant him a new trial. The trial court held a conference in defendant’s absence on the prosecution’s motion to cross examine him on his prior criminal conduct, in violation of his right to be present (see CPL 260.20 …). The court held a subsequent hearing on the motion in defendant’s presence. However, the court did not hear arguments on the merits, did not confirm defendant’s understanding of the underlying facts or the merits of the application, and merely announced its decision. Thus, the subsequent proceeding did not provide for defendant’s meaningful participation in the determination of the merits of the motion and did not cure the earlier violation. People v Sharp, 2024 NY Slip Op 05132, CtApp 10-17-24

Practice Point: Defendant’s right to be present at trial includes the right to be present during the arguments about the admissibility of defendant’s prior convictions under Sandoval/Molineux. Defendant’s presence when the judge announced the Sandoval/Molineux rulings is not sufficient.

 

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HERE THE SUPERINTENDENT OF HIGHWAYS WAS NOT “ENGAGED IN HIGHWAY WORK” WHEN HE COLLIDED WITH PLAINTIFF; THEREFORE THE ORDINARY NEGLIGENCE STANDARD, NOT THE HIGHER “RECKLESS” STANDARD FOR HIGHWAY WORKERS IN THE VEHICLE AND TRAFFIC LAW, APPLIED TO THIS TRAFFIC ACCIDENT (CT APP).

The Court of Appeals, reversing the Appellate Division and awarding summary judgment to plaintiff, in a full-fledged opinion by Judge Cannataro, determined the defendant, Simone, the Superintendent of Highways for the Town of Carmel, was not engaged in highway work when he failed to look to his right before pulling out of an intersection and collided with plaintiff’s car. Simone had driven to a vantage point to see how much snow had fallen on the town’s roads and had ordered the highway department employees to salt the roads. He was on his way back to his office when the accident happened:

… [T]itle VII of the Vehicle and Traffic Law sets out a uniform set of traffic regulations, or “rules of the road,” which generally “apply to drivers of all vehicles owned or operated by the United States, this state, or any county, city, town, district, or any other political subdivision of the state” … . Vehicle and Traffic Law § 1103 (b), however, provides that those rules “shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway” … . Although such parties remain liable for “the consequences of their reckless disregard for the safety of others,” they bear no liability for ordinary negligence … . * * *

… [A]ccording to Simone’s own deposition testimony, the accident occurred after he had fully completed his assessment of roadway conditions at his bellwether location and mobilized his entire team to salt the town’s roads. At the time of the accident, Simone was merely using the road to return to work. Although he testified that he saw a slushy accumulation of snow to his left shortly before the collision occurred, he took no action in response to observing that condition. Indeed, he testified that as he pulled into the intersection where the collision occurred, there was nothing keeping his attention drawn to his left and he was no longer looking at the condition.

Because the uncontested evidence demonstrates that Simone was not actually engaged in work on a highway at the time the accident occurred, defendants are not entitled to the protections of [Vehicle and Traffic Law] section 1103 (b). Orellana v Town of Carmel, 2024 NY Slip Op 05131, CtApp 10-17-24

Practice Point: Here ordinary negligence rules applied to the Superintendent of Highways when he had an accident returning to his office after assessing how much snow had fallen. At the time of the accident he had already ordered his employees to salt the roads. He therefore was not “engaged in highway work” when he collided with plaintiff.

 

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TENURED TEACHERS WERE NOT ENTITLED TO A HEARING BEFORE BEING PLACED ON LEAVE BECAUSE THEY DID NOT SUBMIT PROOF OF VACCINATION AGAINST COVID; HEARINGS ARE REQUIRED IN DISCIPLINARY PROCEEDINGS, BUT NOT WHERE, AS HERE, TEACHERS FAIL TO COMPLY WITH A CONDITION OF EMPLOYMENT (CT APP).

The Court of Appeals, affirming the dismissals of the tenured New York City teachers’ petitions, determined the teachers were properly placed on leave without pay for failing to submit proof of vaccination against COVID. The petitioners’ argument that they were entitled to a hearing pursuant to the Education Law prior to being placed on leave was rejected because the teachers were not being disciplined. Rather, they failed to comply with a condition of employment:

Petitioners were not entitled to the hearing procedures outlined in Education Law §§ 3020 and 3020-a before being placed on leave without pay. These statutory provisions establish a detailed and comprehensive system for conducting disciplinary hearings for tenured teachers. While tenured teachers have a right to these statutory hearings when faced with disciplinary proceedings, these provisions are not applicable to petitioners, who were placed on leave without pay for failure to comply with the vaccine mandate, a condition of employment.

This Court has long distinguished between disciplinary proceedings and employment conditions for employees entitled to statutory civil service protections, and has held that statutory hearings are not warranted when employment eligibility conditions are enforced … . Matter of O’Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2024 NY Slip Op 05130, CtApp 10-17-24

Practice Point: The Education Law requires hearings before tenured teachers can be disciplined. But no hearing is required before placing teachers on leave for failure to comply with a condition of employment (here the submission of proof of vaccination against COVID).

 

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NEW YORK’S EARLY MAIL VOTER ACT IS NOT UNCONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge concurring opinion and a dissenting opinion, determined New York’s Early Mail Voter Act is constitutional:

Plaintiffs, a coalition of elected officials, registered voters, and party officials, challenge New York’s Early Mail Voter Act (the Act), which permits all registered voters to vote early by mail in any election in which the voter is eligible to vote. Plaintiffs maintain the Act is unconstitutional and seek a declaratory judgment and a permanent injunction against its implementation and enforcement. The question raised here is difficult. Though the State Constitution contains no language that explicitly requires in-person voting, the legislative and executive branches have often proceeded as if our Constitution requires as such. Our Court has never been asked to determine what the Constitution requires in this regard. Recently, the legislature assumed that the Constitution requires in-person voting, passing concurrent resolutions culminating in the 2021 proposed amendment to authorize mail-in voting. We acknowledge that the public rejected that amendment, and we take seriously both the legislature’s position in 2021 and the voters’ rejection of the proposed constitutional amendment. At the same time, we may not simply defer to the legislature’s assumptions about what the Constitution requires. Our task is to rigorously analyze the constitutional text and history to determine if New York’s Early Mail Voter Act is unconstitutional. We now hold that it is not. Stefanik v Hochul, 2024 NY Slip Op 04236, CtApp 8-20-24

Practice Point: New York’s Early Mail Voter Act is not unconstitutional.

 

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LEVEL ONE SEX OFFENDERS MUST REGISTER UNDER SORA FOR 20 YEARS; LOW RISK-LEVEL SEX OFFENDERS WHO WERE REGISTERED IN ANOTHER STATE AND WHO RELOCATE TO NEW YORK ARE NOT ENTITLED TO CREDIT FOR THE TIME THEY WERE REGISTERED OUT-OF-STATE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two dissenting opinions (three judges), determined sex offenders registered in other states who are designated level-one risks upon relocating to New York are not entitled to credit for the time they were registered in another state:

Generally, those convicted of sex offenses in other states must register under the Sex Offender Registration Act ([SORA] …) upon relocating to New York … . While the statute requires some sex offenders to register for life … , those in the lowest risk category register for a term of 20 years … . The issue here is whether the statute entitles sex offenders who are classified in that lowest risk category upon relocating to New York to credit for their time registered as sex offenders under the laws of other states. We hold that it does not … .

Defendant in each of these appeals was convicted in another state of an offense that required him to register as a sex offender under the laws of that state. Some years later, each defendant relocated to New York and was required to register as a level-one risk under SORA. Neither is designated a sexual predator, sexually violent offender, or predicate sex offender. During the risk level determination hearings under Correction Law § 168-k (2), each defendant requested that Supreme Court order him registered nunc pro tunc to the date when he registered as a sex offender in the state where he was convicted of his sex offense, in effect giving him credit for the time registered in the foreign jurisdiction against the 20-year registration period. * * *

We recognize that the statute, as written, may lead to unfair results in some circumstances. For example, an offender with a minimal risk of reoffense who has spent substantial time compliant with an effectively administered out-of-state registry scheme without having reoffended would seem to deserve credit for that time as a matter of policy. Moreover, the diversion of public resources and attention towards offenders such as these arguably undermines the state’s effort to protect the public against genuinely dangerous offenders. On the other hand, not all state registry schemes are necessarily created equal, for example, in terms of supervision and registration requirements, and there is no specific mechanism under SORA for a court to determine whether a foreign state’s administration of its registry is as exacting as New York’s or the extent to which a particular offender complied with his obligations under that state’s statute and remained free of reoffense. People v Corr, 2024 NY Slip Op 03379, CtApp 6-20-24

Practice Point: Low risk-level sex offenders who relocate to New York are not entitled to credit for the time they were registered out-of-state. They must remain registered in New York for twenty years.

 

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HERE A STIPULATION BETWEEN LANDLORD AND TENANT SETTING THE RENT FOR A RENT STABILIZED LEASE VIOLATED THE RENT STABILIZATION LAW (RSL) RENDERING THE STIPULATION VOID (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, determined “an agreement waiving a benefit of the Rent Stabilization Laws is void as against public policy. This rule is not altered by the tenant’s status. Accordingly, the stipulation at issue here, which required the tenant to waive his right to file a Fair Market Rent Appeal (FMRA), is void and did not provide a path to deregulation of the subject apartment:”

The Stipulation between McKinney [the tenant] and the landlord provided that McKinney “agrees to accept and the landlord agrees to offer a rent stabilized lease” in McKinney’s name at a rate of “$650 per month.” It also stated that “$1,650 per month is a fair rent for [the] apartment being removed from Rent Control,” a proviso apparently intended to set the initial legal regulated rent under the Rent Stabilization Laws (RSL). The Stipulation further provided that “[f]or as long as Ed McKinney is the tenant, his rent shall be $650 per month plus allowable rental increases.” The effect of that provision, which neither party disputes, was to ensure that McKinney would pay a preferential rate of $650, with subsequent increases tied to this number for the duration of his tenancy. McKinney also agreed “not to challenge the rent,” thereby waiving his right to challenge the amount of the initial rent through a Fair Market Rent Appeal (FMRA) proceeding. * * *

By securing McKinney’s explicit agreement “not to challenge the rent,” the Stipulation waived his right to file an FMRA. That bargain circumvented the statutory process, and consequently the Stipulation is void in its entirety as a matter of law … . Because the Stipulation is void, [the landlord’s] registration statement based on the Stipulation is as well, and therefore “neither party is entitled to rely on it” … and it cannot serve as the basis for deregulation. It remains to be determined whether the apartment was properly deregulated on some other ground. Liggett v Lew Realty LLC, 2024 NY Slip Op 03378, CtApp 6-30-24

Practice Point: Re: rent stabilized leases, a stipulation which sets the rent but provides that the tenant will not challenge the rent violates the Rent Stabilization Law rendering the stipulation void.

 

SCHOOL DISTRICTS ARE NOT OBLIGATED TO TRANSPORT CHILDREN TO THEIR PRIVATE SCHOOLS WHEN THE PUBLIC SCHOOLS ARE CLOSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined a school district is not required to transport children to their private schools when the public schools are closed:

Education Law § 3635 (1) (a) provides: “Sufficient transportation facilities (including the operation and maintenance of motor vehicles) shall be provided by the school district for all the children residing within the school district to and from the school they legally attend, who are in need of such transportation because of the remoteness of the school to the child or for the promotion of the best interest of such children.”

The issue on appeal is whether by requiring that school districts provide “sufficient” transportation, the statute obligates school districts to afford nonpublic students transportation on days their schools are in session, including days when public schools are closed. We conclude it does not. Matter of United Jewish Community of Blooming Grove, Inc. v Washingtonville Cent. Sch. Dist., 2024 NY Slip Op 03377, CtApp 6-20-24

Practice Point: The Education Law does not require school districts to transport students to their private schools when the public schools are closed.

 

THE COURT OF APPEALS MAJORITY HELD THE APPELLATE DIVISION AND THE DISSENT WENT TOO FAR BY INTERPRETING A SHORT PHRASE WITH GRAMMATICAL AND SPELLING ERRORS TO HAVE AMENDED THE TERM OF THE CONTRACT, WHICH WAS UNAMBIGUOUS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, reversing the Appellate Division, over a three-judge dissenting opinion, determined a short unintelligible phrase in the contract did not render the contract ambiguous and therefore did not allow the interpretation applied by the Appellate Division. The central issue was the term of the contract. The expiration date of the term of the contract was unambiguous. The term had expired by the time the transaction for which plaintiff sought a fee of $1.25 million was consummated:​

The muddled phrase “the with affect as of the date hereof” … does not create a factual issue with respect to the length of the Term, because that language is susceptible to only one reasonable interpretation … . … “[T]he with affect as of the date hereof” can easily be understood to mean “with effect as of the date hereof.” To reach that interpretation, one need only set aside a plainly extraneous article, the word “the,” and correct a common, one-letter spelling error (“effect” versus “affect”) … .. Employing this common-sense reading, [the phrase] has no impact on the length of the Term. …

The Appellate Division held that an ambiguity exists because, in its view, ” ‘the with affect as of the date hereof’ . . . could also be corrected to state ‘with the Effective Date as the date hereof’ ” … . The dissent similarly posits that the errors could be corrected to state “with the Effective Date hereof.” These strained readings treat [the phrase] as designed to amend the Effective Date of the original agreement, the primary but unstated effect of which would be to restart its three-year Term. MAK Tech. Holdings Inc. v Anyvision Interactive Tech. Ltd., 2024 NY Slip Op 03376, CtApp 6-20-24

Practice Point: Here the majority concluded a short phrase with grammatical and spelling errors did not render the contract ambiguous.

 

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THE STATUTE REQUIRING THE PEOPLE TO FILE A CERTIFICATE OF COMPLIANCE WITH THEIR DISCOVERY OBLIGATIONS IN ORDER TO BE READY FOR TRIAL WENT INTO EFFECT ON JANUARY 1, 2020; REVERSING THE APPELLATE DIVISION, THE COURT OF APPEALS HELD A VALID READY-FOR-TRIAL ANNOUNCEMENT MADE PRIOR TO JANUARY 1, 2020, WAS NOT AFFECTED BY THE NEW STATUTE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Singas, over a concurring opinion and a dissenting opinion, determined the new statutory discovery obligations imposed upon the People, effective January 1, 2020, did not affect a valid ready-for-trial announcement made prior to January 1, 2020. The Appellate Division held the new statute required the People to file a Certificate of Compliance to be ready for trial and the failure to do so mandated dismissal on speedy-trial grounds:

On January 1, 2020, amendments to New York’s discovery (CPL art 245) and statutory speedy trial (CPL 30.30) rules went into effect, and the old discovery rules (CPL former art 240) were repealed … . On January 27, the first day of trial, defendant moved to dismiss the indictment on statutory speedy trial grounds, arguing that the People had become unready for trial when the amendments came into effect and had failed to file a certificate of compliance with the new discovery rules (COC) as required by the amendments and announce their readiness before their statutory speedy trial time expired. * * *

There is no evidence, in the plain language of the amendments or the legislative history, that the legislature intended to—or did—revert the People to a state of unreadiness on January 1, 2020. Rather, the amendments specifically tie the COC requirement to the People’s ability to state ready and be deemed ready. Because the legislature established the COC requirement as a condition precedent to declaring ready for trial and did not indicate an intent to undo the People’s prior readiness statements, there is no basis to apply that requirement prospectively to a case such as the present one where the People were in a trial-ready posture when it went into effect. In other words, the People are not required to fulfill a prerequisite to declaring trial readiness when they have already validly declared ready for trial. Accordingly, the only way to apply the COC requirement to this case would be to wholesale invalidate the People’s pre-2020 readiness statement—not to render the People unready as of January 1, 2020. Because the language of the amendments does not “expressly or by necessary implication require” this plainly retroactive application, we cannot conclude that the legislature intended for the COC requirement to apply in this manner … . Consequently, the People are not chargeable for any delay after January 1, 2020, and thus remained within the applicable 181-day statutory speedy trial limit … . People v King, 2024 NY Slip Op 03322, CtApp 6-18-24

Practice Point: Here the People made a valid ready-for-trial announcement before the new discovery statute went into effect on January 1, 2020. The trial started on January 27, 2021, and the defense moved to dismiss on speedy trial grounds because the People never filed a certificate of compliance, a new statutory requirement for readiness for trial. The Appellate Division dismissed the case on that ground. The Court of Appeals reversed, finding the pre-January 1, 2020, ready-for-trial announcement was unaffected by the new statutory requirements.

 

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