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​ THE DENIAL OFTHE NON-RESIDENT’S APPLICATION FOR EMPLOYMENT IN NEW YORK CITY IS SUBJECT TO THE EMPLOYMENT-DISCRIMINATION PROHIBITIONS IN THE NEW YORK CITY AND NEW YORK STATE HUMAN RIGHTS LAW (CT APP).

The Second Department, answering a certified question from the Second Circuit, in a full-fledged opinion by Judge Singas, determined that the denial of an non-New-York-resident’s application for employment in New York City is subject to the prohibitions of employment discrimination under the NYS and NYC Human Rights Law. Plaintiff was employed by defendant in Washington DC and sought, but was denied, a new position with the defendant in New York City:

… [A] nonresident who has been discriminatorily denied a job in New York City or State loses the chance to work, and perhaps live, within those geographic areas. The prospective employee personally feels the impact of a discriminatory refusal to promote or hire in New York City or State, because that is where the person wished to work (and perhaps relocate) and where they were denied the chance to do so. When applying the required liberal construction of “inhabitants” and “individual within this state” (Executive Law § 290 [3]; Administrative Code § 8-101), a prospective inhabitant or employee, who was denied a job opportunity because of discriminatory conduct, fits comfortably within the Human Rights Laws’ protection. Syeed v Bloomberg L.P., 2024 NY Slip Op 01330, CtApp 3-14-24

Practice Point: Plaintiff worked for defendant in Washington DC and sought, but was denied, a new position with defendant in New York City. Although a non-resident, plaintiff could bring a failure-to-hire/failure-to-promote employment-discrimination action in New York pursuant to the NYC and NYS Human Rights Law.

 

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THE SORA RISK-LEVEL ASSESSMENT PROCEEDINGS MUST BE CONDUCTED 30 DAYS BEFORE DEFENDANT’S RELEASE FROM CONFINEMENT, REGARDLESS WHETHER THE STATE IS CONSIDERING OR IS IN THE PROCESS OF INSTITUTING CIVIL COMMITMENT PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Curran, over a comprehensive two-judge dissenting opinion by Judge Wilson, determined that the sex offender risk-level assessment proceedings must be held 30 days prior to a defendant’s release from confinement, regardless whether the state is considering instituting, or already has instituted, proceedings to civilly commit the defendant pursuant to the Sex Offender Management and Treatment Act (SORA):

The Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.) provides that a sex offender “shall” be classified into one of three risk level categories “[30] days prior to discharge, parole or release” (Correction Law § 168-n [2]). The central question presented by these appeals is whether, for purposes of SORA, this deadline is properly measured from the date an offender is released from confinement by the Department of Corrections and Community Supervision (DOCCS), despite pending or contemplated proceedings to civilly commit the offender under the Sex Offender Management and Treatment Act (SOMTA) (Mental Hygiene Law § 10.01 et seq.). We hold that, under a plain reading of SORA, the 30-day deadline for conducting a risk level classification hearing must be measured from an offender’s release by DOCCS upon the completion of a prison sentence, irrespective of whether the state is considering instituting, or has already instituted, proceedings under SOMTA. We further hold that offenders are not denied due process by having a SORA hearing at a time when they may be civilly committed under SOMTA. People v Boone, 2024 NY Slip Op 00928, CtApp 2-22-24

Practice Point: SORA risk-level-assessment proceedings are to be held 30 days prior to defendant’s release from confinement and cannot be delayed because the state is considering or has instituted proceedings for civil commitment.

 

ALTHOUGH DEFENDANT WAS CHARGED WITH BURGLARY AS A SEXUALLY MOTIVATED FELONY, WHICH REQUIRES PROOF THE CRIME WAS MOTIVATED BY SEXUAL GRATIFICATION, THE PEOPLE WERE ENTITLED TO A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF BURGLARY SECOND, WHICH NEED NOT BE MOTIVATED BY SEXUAL GRATIFICATION (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the People were entitled to a jury instruction on the lesser included offense (burglary second degree) where the indictment charged burglary second degree as a sexually motivated offense. Defense counsel objected arguing defendant was not given notice of the need to defend against a burglary charge which did not include the “sexual gratification” element. The Appellate Division agreed with defense counsel’s argument, but the Court of Appeals rejected it, noting that a burglary could be motivated by “sexual harassment” but not by “sexual gratification:”

Defendant confronted, assaulted, and groped several women outside of a New York University dormitory, including grabbing a student by the throat and sexually assaulting her. The students managed to run from defendant and into their dormitory. Shortly thereafter, defendant entered the dormitory and had an altercation with the building’s security guard who tried to block his way, but defendant pushed through the turnstiles that separated the dormitory’s public lobby from the elevator bank that led to the private residences. The security guard was able to return defendant to the lobby, where defendant continued to harass students until police arrived and arrested him. * * *

… [C]harging burglary as a sexually motivated felony does not … limit the People to proving that a defendant intended to commit what is traditionally considered a “sex crime” when he or she entered the dwelling. … [T]he People must prove that, regardless of the crime the defendant intended to commit inside the dwelling, the burglary was motivated in substantial part by personal sexual gratification. For example, the People may charge a sexually motivated burglary based on a theory that the defendant intended to commit larceny once inside of a dwelling, but still maintain the motivation for the burglary was sexual gratification.

…[T]he inverse is also possible: the People may argue that the intended crime was obviously sexual in nature, but the jury may find that, although the defendant entered or remained in the dwelling intending to commit that crime, the motivation was something other than sexual gratification. In that situation … the proof may be insufficient to convict defendant of the sexually motivated felony but sufficient as to the lesser included offense of burglary in the second degree. People v Seignious, 2024 NY Slip Op 00927, CtApp 2-22-24

Practice Point: Although it may be possible for defense counsel to ask for a more limited jury instruction, here the People, who had charged defendant with burglary second degree as a sexually motivated felony (with a sexual-gratification element), were entitled to a jury instruction on the the lesser included offense of burglary second degree (with no sexual-gratification element).

 

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EVEN WHERE IT IS POSSIBLE DEFENDANT LACKS THE CAPACITY TO UNDERSTAND THE SORA RISK-LEVEL PROCEEDINGS, THE RISK-LEVEL ASSESSMENT CAN BE MADE WITHOUT AN INDEPENDANT ASSESSMENT OF DEFENDANT’S MENTAL CAPACITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannaturo, over a two-judge dissenting opinion by Judge Rivera, and a dissent by Judge Halligan, determined the SORA risk-level proceedings can proceed without an assessment of the defendant’s mental health, even where, as here, there is a possibility defendant make lack the capacity to fully comprehend the risk-level proceedings:

The Sex Offender Registration Act (SORA) requires that every person convicted of a sex offense be given a risk-level classification corresponding to their assessed likelihood of recidivism and potential danger to the community. This risk level, in turn, determines the scope of information available to the public concerning the offender. To protect against erroneous classification, judicial determination of an offender’s risk level can occur only after the offender has been provided notice, counsel, disclosure of relevant information, and an opportunity to object and present evidence at a hearing, at which the People must prove the appropriateness of the classification by clear and convincing evidence. An offender’s risk level is also subject to re-evaluation on an annual basis.

The primary question on this appeal is whether due process precludes a court from determining a sex offender’s risk level when there is a possibility that the offender—although represented by counsel and provided the other protections listed above—may lack capacity to fully comprehend risk-level assessment proceedings. We hold that the many safeguards already provided under SORA minimize the risk of inaccurate risk-level classification and adequately balance the competing private and State interests in these civil proceedings. People v Watts, 2024 NY Slip Op 00926, CtApp 2-22-24

Practice Point: The safeguards in place for SORA-risk-level-assessment proceedings are sufficient to protect the rights of a defendant who may lack the capacity to comprehend the proceedings. There is no need for an independent assessment of defendant’s mental capacity before making the risk-level assessment.

 

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WHERE MODIFICATION OF A SECURING ORDER (RELEASE ON BAIL) IS NOT BASED UPON RISK OF FLIGHT, BUT RATHER IS BASED UPON THE COMMISSION OF FELONIES WHILE RELEASED ON BAIL, A FULL EVIDENTIARY HEARING MUST BE HELD, OR, IN THE ALTERNATIVE, THE PEOPLE CAN SUBMIT TRANSCRIPTS OF GRAND JURY TESTIMONY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, clarified the appropriate procedures for modifying a securing order when a defendant who has been released on bail is alleged to have committed other crimes:

While out on bail after his arrest for a felony, defendant was arrested three times for additional violent felonies. The court modified his securing order by remanding defendant. This appeal concerns the overlap between statutory provisions governing modifications to securing orders under these circumstances. We now hold that, where otherwise applicable, courts may modify a securing order when a defendant is charged with additional class A or violent felonies pursuant to either CPL 530.60 (1) or 530.60 (2) (a), but that, where the Court proceeds under CPL 530.60 (1), the record must reflect that the decision was based on the risk of flight factors and criteria in CPL 510.30. Where, as here, the record does not demonstrate that the court’s decision was based on defendant’s increased risk of flight, it will be assumed that the court proceeded pursuant to CPL 530.60 (2) (a) and a failure to follow the procedural requirements of CPL 530.60 (2) (c) will be considered error. * * *

Where a court modifies a securing order on [a]reasonable cause finding, and so determines that a defendant poses a danger to the community, the court must ensure that the procedural requirements of subdivision (2) (c) are followed (see e.g. People ex rel. Ryan v Warden, 113 AD2d 116, 117 [1st Dept 1985] [subdivision (2) (c) hearing required where “(p)etitioner’s remand without bail was, concededly, based solely upon his arrest for a new charge as provided for in CPL 530.60 (2) (a) and not on any finding that there was a likelihood he might not return to court (under) CPL 530.60 (1)”]). These prerequisites—a hearing with relevant, admissible evidence and the cross-examination of witnesses, or the submission of grand jury testimony transcripts—are designed to provide the court with a basis for a reasonable cause determination and to ensure that a defendant receives due process. While the procedural prerequisites provide for a more formal hearing with witness testimony, they also provide the People with the option, as they did upon remittal here, to submit transcripts of grand jury testimony—a streamlined approach that may provide the support needed for a reasonable cause finding. People ex rel. Rankin v Brann, 2024 NY Slip Op 00850, CtApp 2-20-24

Practice Point: Before bail is revoked because the defendant is alleged to have committed felonies while released on bail, a full evidentiary hearing must be held to flesh out the alleged crimes, or the People may submit transcripts of grand jury testimony. The mere allegation that defendant committed additional crimes while on bail is not enough.

 

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THE JURY NOTE REQUESTED THE “DEFINITIONS” OF THE CHARGED OFFENSES; DEFENSE COUNSEL ASKED THE JUDGE TO ALSO REREAD THE JUSTIFICATION INSTRUCTION IN THIS MURDER CASE; THE JUDGE REFUSED; BECAUSE THE JURY’S NOTE WAS SPECIFIC AND DID NOT REQUEST THE JUSTIFICATION INSTRUCTION, THE JUDGE PROPERLY DENIED DEFENSE COUNSEL’S REQUEST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, with a concurrence, affirming defendant’s convictions in this murder, attempted murder and assault case, determined the judge did not err by denying defense counsel’s request to reread the justification jury instruction after the jury sent out a note asking for the definitions of the charged offenses. The jury asked for “[a]ll definitions discussed: Murder II, Manslaughter I, Depraved Murder II, etc.,” Because the request was deemed specific the justification instruction was not reread because the jury didn’t request it:

… “[T]he form of the jury’s” note indicated a request that the jury be recharged on the elements of the crimes … . The jury note asked for “all definitions” contained in the charges: the jury did not simply ask for “all definitions” to be read back but instead chose to limit which “definitions” it sought by providing an exemplary list containing the first three of the ten criminal offenses on which the trial court had originally instructed the jury and ending the list with “etc.” The usage of “etc.” in this context corroborates this interpretation of the note because et cetera at the end of a list signals “others especially of the same kind” … . That the jury did not seek further instruction or clarification after the recharge also supports our conclusion that the trial court correctly interpreted the jury note and responded meaningfully and with the complete information sought … . People v Aguilar, 2024 NY Slip Op 00849, CtApp 2-20-24

Practice Point: A judge must respond “meaningfully” to a jury note. Here the note requested definitions of the charged crimes. The judge properly denied defense counsel’s request to reread the justification instruction because the jury’s not was specific and did not mention justification.

 

THE COVID PROTOCOLS WERE IN EFFECT DURING DEFENDANT’S TRIAL; THE JURORS WERE REQUIRED TO WEAR FACE MASKS WHEN THEY WERE NOT BEING INDIVIDUALLY QUESTIONED DURING VOIR DIRE; THE INABILTY TO SEE THE JURORS’ FULL FACES DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO BE PRESENT DURING JURY SELECTION AND DID NOT VIOLATE HIS DUE PROCESS RIGHTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming defendant’s convictions, determined defendant’s inability to see jurors’ facial expressions during voir dire, because of the COVID mask-wearing requirement, did not deprive him of the opportunity to be present during jury selection and did not deprive him of due process of law. Although the jurors wore masks when not questioned during voir dire, the mask was removed when each juror was questioned individually:

… [D]efendant maintains that safety protocols implemented during the COVID-19 pandemic—namely social distancing and the requirement that prospective jurors cover their mouths and noses with a face mask when not being questioned individually—violated these rights because defendant could not see each prospective juror’s entire face throughout the jury selection process. Because neither a defendant’s right to be present during jury selection nor due process require that defendant have a simultaneous, unobstructed view of the entirety of every prospective juror’s face during jury selection, we affirm. * * *

… D]efendant was present at all phases of jury selection. … [D]efendant was able to hear the questions posed to prospective jurors and to observe their responses including their “facial expressions, demeanor and other subliminal responses.” * * *

… [T]he safety protocols in use at defendant’s jury selection were permissible as they did not impede defendant’s ability to be present and observe the selection process. A defendant’s right to be present at jury selection does not entail the absolute or unlimited ability to observe each prospective juror’s facial expressions. After all, there is much more to body language than a person’s nose or mouth; defendant could still observe a great deal about prospective jurors including their posturing, the position of their arms, and their eyes and eyebrows … . People v Ramirez, 2024 NY Slip Op 00848, CtApp 2-20-24

Practice Point: Here, during voir dire, the jurors who were not being questioned wore face masks. Defendant’s inability to see the full faces of the jurors when they were not being questioned did not deprive defendant of his right to be present during jury selection and did not deprive defendant of due process of law.

 

HERE SLIPPERY PLASTIC SHEETING WAS USED TO PROTECT AN ESCALATOR DURING A PAINTING PROJECT; PLAINTIFF, A PAINTER, SLIPPED AND FELL WHEN HE STEPPED ONTO THE PLASTIC; THE PLASTIC SHOULD BE VIEWED AS A “FOREIGN SUBSTANCE,” LIKE ICE OR GREASE, WITHIN THE MEANING OF THE INDUSTRIAL CODE; IN ADDITION, THE PLASTIC SHOULD NOT BE VIEWED AS “INTEGRAL TO THE JOB” WITHIN THE MEANING OF THE INDUSTRIAL CODE BECAUSE THERE WERE SAFER ALTERNATIVES (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, with a three-judge concurring opinion by Judge Garcia, determined the plastic sheeting placed on an escalator during painting was a “foreign substance” within the meaning the Industrial Code and the sheeting was not “integral to the work” within the meaning of the Industrial Code. Plaintiff was therefore entitled to summary judgment on the Labor Law 241(6) cause of action. Plaintiff was required to stand on the plastic while painting. He slipped and fell as he stepped onto the sheeting. There was testimony that drop cloths or wood panels would be safer alternative coverings:

As to whether the covering’s properties are the type encompassed within the affirmative mandate of 12 NYCRR 23-1.7 (d), because that section specifically lists ice, snow, water and grease, the catchall reference to “other foreign substance” includes those substances that share a quality common to the enumerated items. The listed items are, by their nature, types of material that are slippery when in contact with an area where someone walks, seeks passage, or stands, and, when the substance is present, would make it difficult if not impossible to use the work area safely, necessitating one of the affirmative mitigating measures set forth in section 23-1.7 (d) as a means to provide safe footing. The plastic covering used here similarly made [plaintiff’s] work area slippery upon contact, with the result that [plaintiff] could not traverse the plastic-covered escalator without risking a fall. * * *

… [T]he use of some cover was integral to [plaintiff’s] assignment to paint around the escalator. But that does not mean that any cover used—even one that was inherently slippery—was necessarily “integral,” particularly where a safer alternative would have accomplished the same goal. The plastic covering that was placed on the escalator was not integral to the paint job because it made [plaintiff’s] work area slippery, creating one of the hazards that the cover was intended to avoid. … Defendant was in a position to avoid this danger because … there were alternative coverings—drop cloths and wood panels—that were familiar, previously-used options that would have achieved the goal of protecting the worker from injuries caused by a slipping hazard and also protected the escalator from possible damage. Bazdaric v Almah Partners LLC, 2024 NY Slip Op 00847, CtApp 2-20-24

Practice Point: A prohibited “foreign substance” within the meaning of the Industrial Code can include slippery plastic sheeting (here used as a drop cloth during a painting project). Therefore requiring workers to stand or walk on slippery plastic sheeting can be a violation of the Industrial Code, triggering Labor Law 241(6) liability.

Practice Point: Because there were safer alternatives, the slippery plastic covering was not “integral to the job” within the meaning of the Industrial Code.

 

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FOLLOWING THE RE-ELECTION OF VENEZUELAN PRESIDENT NICOLAS MADURO, THE VENEZUELAN NATIONAL ASSEMBLY NAMED JUAN GUAIDO INTERIM PRESIDENT AND DECLARED THE EXCHANGE OF UNSECURED FOR SECURED NOTES OFFERED BY THE VENEZUELAN STATE-OWNED OIL COMPANY UNAUTHORIZED; VENEZUELAN LAW CONTROLS THE VALIDITY OF THE NOTES UNDER THE UCC, NEW YORK LAW CONTROLS ALL OTHER ASPECTS OF THE TRANSACTION (CT APP). ​

The Court of Appeals, in a comprehensive full-fledged opinion by Judge Troutman, answering questions posed by the Second Circuit, determined the extent to which the exchange of unsecured for secured notes offered to shareholders by the Venezuela’s state-owned oil company was controlled by the New York Uniform Commercial Code (UCC). The court concluded the validity of the notes under the UCC is governed by Venezuelan law and New York law governs the transaction in all other aspects. The opinion is far too detailed and complex to fairly summarize here. At the heart of the dispute is the 2018 re-election of Nicolas Maduro as President of Venezuela and the declaration by the Venezuelan National Assembly naming Juan Guaido as interim President, followed by the National Assembly’s declaration that the exchange of unsecured for secured notes was unauthorized:

In 2016, Venezuela’s state-owned oil company offered a bond swap through which its noteholders could exchange unsecured notes due in 2017 for new, secured notes due in 2020. The United States Court of Appeals for the Second Circuit certified three questions to this Court concerning the extent to which New York law governs this transaction. … [W]e answer that Venezuelan law governs the validity of the notes under Uniform Commercial Code § 8-110 (a) (1), which encompasses within its scope plaintiffs’ arguments concerning whether the issuance of the notes was duly authorized by the Venezuelan National Assembly under the Venezuelan Constitution—i.e., whether there is a defect in the notes occasioned by the application of a constitutional provision bearing on the procedure through which the notes were issued. … New York law governs the transaction in all other respects, including the consequences if a security was “issued with a defect going to its validity” (UCC 8-202 [b] [1]-[2]). * * *

Plaintiffs are three related entities. Petróleos de Venezuela, S.A. (PDVSA) is an oil and gas company wholly owned by the Venezuelan government (Venezuelan Const art 303 [“the State shall retain all shares of” PDVSA]). PDVSA Petróleo S.A. (Petróleo) is incorporated in Venezuela and is a wholly owned subsidiary of PDVSA. PDV Holding, Inc. (PDVH), also a wholly owned subsidiary of PDVSA, is incorporated in Delaware and has its principal place of business in Houston, Texas. PDVH wholly owns CITGO Holding, Inc., which is the sole owner of CITGO Petroleum Corporation, a refiner and marketer of petroleum products in the United States. Nonparties CITGO Holding and CITGO Petroleum Corporation are both incorporated in Delaware with a principal place of business in Houston. Petróleos de Venezuela S.A. v MUFG Union Bank, N.A., 2024 NY Slip Op 00851, CtApp 2-20-24

Practice Point: Nicolas Maduro was re-elected President of Venezuela. Juan Guaido was subsequently named interim President of Venezuela by the Venezuelan National Assembly. The question at the heart of this dispute is whether actions taken by President Maduro (issuance of notes offered by the Venezuelan state-owned oil company) are valid in the face of a subsequent declaration by the Venezuelan National Assembly that the issuance of the notes was not authorized.

 

A RESTAURANT PROPERTY-INSURANCE POLICY WHICH COVERS “DIRECT PHYSICAL LOSS OR DAMAGE” DOES NOT COVER THE LOSS OF BUSINESS CAUSED BY COVID-19 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the cessation of in-person dining services because of COVID-19 did not constitute “direct physical loss or damage” within the meaning of plaintiff’s property insurance policy:

We do not take lightly the severe economic losses incurred by restaurants and other businesses serving the public as a result of the COVID-19 pandemic. But our task is to faithfully interpret the terms of the insurance policy before us, not to “rewrite the language of the polic[y] at issue” to reach a result with “equitable appeal” … . The coverage provisions relied upon by [plaintiff] CRO [Consolidated Restaurant Operations] only cover economic losses to the extent they are caused by “direct physical loss or damage” to insured property. We conclude that the business interruption caused by the actual presence of the coronavirus on the premises of CRO’s insured property, as alleged in the complaint, is insufficient to trigger such coverage. Consolidated Rest. Operations, Inc. v Westport Ins. Corp., 2024 NY Slip Op 00795, CtApp 2-15-24

Practice Point: Property insurance covering “direct physical loss or damage” does not cover a restaurant’s loss of business caused by COVID-19.

 

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