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THE LICENSE ALLOWING THE USE OF A BOAT SLIP AT A COUNTRY CLUB WAS REVOCABLE AT WILL BY THE COUNTRY CLUB (THE LICENSOR) (CT APP). ​

The Court of Appeals, reversing the Appellate Division, over an extensive three-judge dissenting opinion, determined that the license at issue was revocable at will by the licensor:

… [P]laintiff Skaneateles Country Club (SCC) undertook a project to construct 80 boat slips on Skaneateles Lake for the benefit of club members. Interested members, including defendant Olivia Cambs, were required to contribute an initial capitalization payment and enter into an Assignment Agreement. Through the Assignment Agreement, SCC “assign[ed] and transfer[red]” to defendant the “use and occupancy right with respect to one boat slip,” subject to certain express conditions. SCC reserved the right to determine the specific boat slip defendant would occupy, and defendant agreed to comply with all of SCC’s rules and policies, pay an annual maintenance fee, and adhere to any applicable laws, ordinances or governmental regulations. The agreement also permitted defendant to make a “Legacy Transfer” of the slip to her offspring if certain specified conditions were met. Further, the agreement provided that, “[i]n the event [defendant] elect[ed] to terminate this Assignment Agreement” or was no longer a club member, SCC would return the initial capitalization payment.

Following an unrelated dispute with defendant, SCC commenced this declaratory judgment action, seeking a declaration that the agreement was a license terminable at will by SCC. …

… [N]othing in the parties’ agreement limits SCC’s right to terminate or otherwise evinces an intent to alter the general rule that licenses are revocable at will by the licensor … . Although licenses may become irrevocable by the licensor in certain circumstances … , we are not satisfied that any such circumstances are presented here. Skaneateles Country Club v Cambs, 2023 NY Slip Op 05352, CtApp 1-24-23

Practice Point: Although under some circumstances licenses cannot be revoked at will by the licensor, that is not general rule. Here the license allowing use of boat slip at a county club was revocable at will. Nothing in the agreement evinced an intent to alter the general rule.

 

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THE REGULATIONS ALLOWING FAMILIAL DNA SEARCHES WERE VALIDLY PROMULGATED; THE REGULATIONS ALLOW DNA SEARCHES WHICH REVEAL THE IDENTITY OF FAMILY MEMBERS OF PERSONS IN THE CRIMINAL DNA DATABASE (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over an extensive three-judge dissenting opinion, determined the Commission on Forensic Sciences properly promulgated the Familial DNA Search (FDS) Regulations. The regulations allow DNA searches which may reveal the identity of relatives of a persons whose DNA is in the database. The underlying Article 78 petition was brought by two men, never convicted of a crime, whose brothers were in the DNA database as a result of a felony conviction:

There is no provision in the FDS for an identified relative to be notified and/or challenge the search before law enforcement officials may proceed with an investigation based on a familial match from the Databank. Petitioners Terrence Stevens and Benjamin Joseph are two Black men living New York who have never been convicted of a crime. Each has a brother whose genetic information has been collected and stored in the DNA Databank as the result of a felony conviction, in accordance with Databank Act requirements. Mr. Stephens and Mr. Joseph brought this CLPR article 78 proceeding against respondents … alleging … that respondents lacked statutory authority to promulgate the FDS Regulations and therefore violated the separation of powers doctrine under the New York Constitution. Respondents denied petitioners’ allegations and asserted that petitioners lacked standing to challenge the FDS Regulations. * * *

Given the clarity and specificity of the guidelines provided in the Databank Act, respondents acted within their delegated authority. The FDS Regulations are a result of “administrative rule-making,” not “legislative policy-making” … . Here, the legislature made the policy determination that New York State should have well-developed DNA testing programs to assist law enforcement, that the use of the information should be limited, and the data and results secure. Matter of Stevens v New York State Div. of Criminal Justice Servs., 2023 NY Slip Op 05351, CtApp 10-24-23

Practice Point: The regulations allowing familial DNA searches which reveal the identity of relatives of persons in the criminal DNA database are constitutional. There was an extensive three-judge dissent.

 

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NYPD’S WRITTEN INVENTORY SEARCH PROTOCOL IS CONSTITUTIONAL; HERE THE INVENTORY SEARCH OF THE TRUNK OF DEFENDANT’S VEHICLE TURNED UP A FIREARM (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, over an extensive dissent, determined the New York City Police Department’s (NYPD’s) written inventory search protocol was constitutional. Defendant was arrested after a traffic stop for possession of a gravity knife. A subsequent inventory search of defendant’s vehicle turned up a firearm from the trunk:

Defendant moved to suppress the firearm, arguing that the NYPD’s inventory search protocol was unconstitutional because it gives officers too much discretion in conducting inventory searches and that the searching officers failed to create a meaningful inventory of defendant’s items. At the suppression hearing, the People introduced the NYPD’s written inventory search protocol as set forth in section 218-13 of the NYPD Patrol Guide. The protocol instructs officers to first “[s]earch the interior of the vehicle thoroughly,” “includ[ing] any area that may contain valuables.” The protocol lists 10 areas within the car that must be searched, such as the glove compartment and trunk, but does not limit the searching officers to those spaces. Second, section 218-13 directs officers to force open the “trunk, glove compartment, etc. only if it can be done with minimal damage” except in particular situations including where officers “[r]easonably suspect that the item contains weapons, explosives, hazardous materials or contraband.” Lastly, the protocol requires officers to remove the valuables from the vehicle and invoice, or “voucher,” the property on a specifically referenced invoice form. Section 218-13 instructs officers to list property of little value inside the vehicle, “within reason,” in their activity log and cross reference the property “to the invoice number covering any valuables removed.” Both officers testified that the purpose of an inventory search is, in part, to secure a defendant’s items. The arresting officer further testified that it is an officer’s duty to safeguard a defendant’s recovered items prior to vouchering the items. People v Douglas, 2023 NY Slip Op 05350, CtApp 10-24-23

Practice Point: Here the NYPD’s written inventory search protocol for vehicles was found constitutional. Defendant was arrested after a traffic stop for possession of a gravity knife. A subsequent inventory search of defendant’s vehicle turned up a firearm. There was an extensive dissenting opinion.

 

HERE THE RELATION-BACK DOCTRINE APPLIED TO ALLOW ADDING A PARTY TO THE LAWSUIT AFTER THE STATUTE OF LIMITATIONS HAD RUN; CRITERIA EXPLAINED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined the relation-back doctrine applied to add a party to a lawsuit after the statute of limitations had run:

The relation back doctrine applies when (1) the claims arise out of the same conduct, transaction or occurrence; (2) the new party is “united in interest” with an original defendant and thus can be charged with such notice of the commencement of the action such that a court concludes that the party will not be prejudiced in defending against the action; and (3) the new party knew or should have known that, but for a mistaken omission, they would have been named in the initial pleading (see Buran v Coupal, 87 NY2d 173, 178 [1995]).

The doctrine focuses on the notice and prejudice to the added party. However, the doctrine does not apply when a plaintiff “intentionally decides not to assert a claim against a party known to be potentially liable” or when the new party was omitted “to obtain a tactical advantage in the litigation” (id. at 181). These exceptions minimize gamesmanship and manipulation of the CPLR (see id.).

Here, petitioners established that they satisfied the Buran test and that their omission of a necessary party was not a deliberate, informed litigation strategy to gain tactical advantage. The relation back doctrine applies, and petitioners’ claims against the newly added party were timely interposed under CPLR 203 (c). Matter of Nemeth v K-Tooling, 2023 NY Slip Op 05349, CtApp 10-24-23

Practice Point: If the criteria laid out in Buran, 87 NY2d 173, are met, the relation-back doctrine can be applied to allow adding a party to the lawsuit after the statute of limitations has run.

 

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​ ALTHOUGH THE STATUTORY SPEEDY TRIAL RULES DO NOT APPLY TO STAND-ALONE TRAFFIC INFRACTIONS, THE PEOPLE AGREED TO DISMISS THE TRAFFIC INFRACTION ON SPEEDY TRIAL GROUNDS; THE PEOPLE THEN APPEALED; THE COURT OF APPEALS, OVER A DISSENT, HELD THE MATTER WAS NOT REVIEWABLE (CT APP). ​

The Court of Appeals, over a dissenting opinion, determined that the error was not reviewable because the People consented to it. In 2022 the Court of Appeals held that the statutory speedy trial rules do not apply to traffic infractions which stand alone, i.e., the traffic infraction is not charged along with a felony, misdemeanor or violation. The defendant’s traffic infraction had been dismissed on speedy-trial grounds with the People’s consent. The People then appealed the dismissal:

On appeal, the People contend that CPL 30.30 (1) (e)—which took effect more than a year before defendant was even charged—was enacted to clarify that CPL 30.30 (1) applies ” ‘to accusatory instruments charging traffic infractions jointly with a felony, misdemeanor, or violation,’ ” but that, as we stated in People v Galindo, ” ‘actions involving only traffic infractions would still not be covered by the speedy trial statute’ ” (quoting 38 NY3d 199, 201, 206 [2022] [emphasis added]). Thus, the instant appeal involves no intervening newly declared principle of law.

Because the People agreed in Town Court that CPL 30.30 applied to the simplified traffic information, the issue is unreviewable (see CPL 470.05 [2]). Contrary to the dissent’s suggestion, we engender no unjust result by applying our well-settled principles governing reviewability to reject the People’s attempt to reinstate the accusatory instrument against this pro se defendant, now almost two years after dismissal, by renouncing their express concession that CPL 30.30 applied. People v Lovett, 2023 NY Slip Op 05348, CtApp 10-24-23

Practice Point: If the People agree to an erroneous ruling and then appeal that ruling, the matter may not be reviewable by an appellate court.

 

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DEFENDANT APPEARED IN COURT WITH A SUBSTITUTE COUNSEL WHO INFORMED THE COURT ANOTHER LEGAL AID LAWYER WAS BEING ASSIGNED TO DEFENDANT’S CASE; DEFENDANT WAS NOT “WITHOUT COUNSEL” WITHIN THE MEANING OF CPL 30.30; THE ASSOCIATED SPEEDY-TRIAL TIME-PERIOD SHOULD HAVE BEEN CHARGED TO THE PEOPLE, NOT THE DEFENDANT (CT APP). ​

The Court of Appeals, reversing the Appellate Term. determined the defendant was not “without counsel” during an eight-day period. Therefore that eight-day period must be charged to the People and the People were not ready for the trial within the statutory 90 days:

Under CPL 30.30 (4) (f), a “period during which the defendant is without counsel through no fault of the court” must be excluded when calculating the time within which the People must be ready for trial. However, a defendant is not “without counsel” within the meaning of the statute when appearing with substitute counsel … .

Here, defendant was assigned an attorney from The Legal Aid Society during his arraignment. On November 5, 2018, the date that defendant’s case was calendared for trial, defendant appeared in court with a different attorney from that office, who informed the court that defendant’s original attorney was leaving the office and the case was being reassigned to another attorney from Legal Aid. Defendant plainly was represented at that appearance and was therefore not “without counsel” … . People v Justice A., 2023 NY Slip Op 05306, CtApp 10-19-23

Practice Point: Appearing with substitute counsel is not appearing “without counsel” within the meaning of CPL 30.30 (4)(f). The associated time should not have been charged to the defendant. The People therefore were not ready for trial within the statutory 90-day period.

 

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FORENSIC EVIDENCE OF COMPLAINANT’S SEXUAL ACTIVITY SHOULD NOT HAVE BEEN EXCLUDED UNDER THE RAPE SHIELD LAW; DEFENDANT’S RIGHT TO PUT ON A DEFENSE WAS VIOLATED; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Lynch, reversing the Appellate Division, determined forensic evidence of the complainant’s sexual activity should not have been excluded pursuant to the Rape Shield Law. Under the circumstances, by excluding forensic evidence of sexual activity which did not implicate the defendant deprived defendant of the right to present a defense. The complainant alleged defendant inserted his finger in her vagina and fondled her breasts. A forensic analysis of a vaginal swab and complainant’s underwear revealed the presence of complainant’s saliva and fluids from two unidentified males:

… [T]he legislature enumerated five exceptions to CPL 60.42’s [the Rape Shield Law’s] evidentiary proscriptions. The first four exceptions “allow evidence of a complainant’s prior sexual conduct in narrowly defined factual circumstances,” whereas the fifth “is a broader ‘interest of justice’ provision vesting discretion in the trial court” (Williams, 81 NY2d at 311). “The exceptions . . . recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution’s witnesses” … .

Defendant argues that the forensic evidence was admissible under several of the exceptions set forth in CPL 60.42. We need not address every basis raised because we conclude that the trial court erred in denying admission of the evidence under CPL 60.42 (5). Under this subdivision, evidence of a victim’s sexual conduct may be admitted in evidence during a sex crime prosecution when it “is determined by the [trial] court after an offer of proof by the accused . . . to be relevant and admissible in the interests of justice” (CPL 60.42 [5]). “Offer of proof is not a term of art but its generally accepted meaning . . . is to summarize the substance or content of the evidence” … . In his motion in limine, defense counsel delineated the findings contained in the forensic reports and explained how they constituted “evidence of something other than . . . defendant having engaged in inappropriate and unlawful sexual activity with [the complainant].” This was a sufficient offer of proof under Williams (81 NY2d at 314). People v Cerda, 2023 NY Slip Op 05305, CtApp 10-19-23

Practice Point: Here the interest-of-justice exception to the Rape Shield Law applied. The majority found that the exclusion of forensic evidence of complainant’s sexual activity (which did not implicate the defendant) violated defendant’s right to put on a defense.

 

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THE MAJORITY HELD THE APPELLATE DIVISION SHOULD HAVE CONSIDERED MOTHER’S APPEAL OF FAMILY COURT’S FINDING MOTHER DID NOT HAVE STANDING TO BRING HER CUSTODY/HABEAS CORPUS PETITION STEMMING FROM THE OUT-OF-STATE FATHER’S FAILURE TO RETURN THE CHILDREN; THE MAJORITY SENT THE CASE BACK TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE STANDING ISSUE; THREE DISSENTERS ARGUED FAMILY COURT ERRED WHEN IT DISMISSED THE HABEAS CORPUS PETITION BECAUSE NO CUSTODY ORDER WAS IN PLACE (CT APP).

The Court of Appeals, reversing the Appellate Division, over a three-judge comprehensive dissent, determined the Appellate Division erred when it refused to consider mother’s appeal of the denial of her habeas corpus petition seeking the return of her children. The children visited father out-of-state and one of them was not allowed to return. The Appellate Division erred when it found it did not have subject matter jurisdiction for the appeal. The matter was sent back for consideration of mother’s standing to bring the habeas corpus petition. The dissenters argued the habeas corpus petition was erroneously dismissed by Family Court on the ground that mother did not have standing because there was no custody order in place for the children. But the majority wanted the development of a record on the standing issue:

… Family Court denied the mother’s applications both for sole custody and habeas corpus relief. As the parties who have appeared before us agree, the Appellate Division erred in dismissing the mother’s ensuing appeal for lack of subject matter jurisdiction. By dismissing the appeal upon a motion, and upon an undeveloped record, without full briefing and without providing all parties the opportunity to appear, the Appellate Division has rendered impossible meaningful appellate review of the weighty issues raised in this case. To the extent that the Appellate Division’s order on the motion to dismiss could be read, as the dissenters read it, to be a determination that the mother lacked standing to seek habeas corpus relief without an order of custody in place, the issue of standing did not impact the subject matter jurisdiction of the Appellate Division … . Regardless of whether that Court had the “power to reach the merits,” an issue on which we express no opinion, the Court did not lack the “competence to entertain” the appeal … . Therefore, we remit to the Appellate Division for an expeditious determination on the merits of the standing question presented herein and, if warranted, disposition of any other issues that the parties may raise. Matter of Celinette H.H. v Michelle R., 2023 NY Slip Op 05303, CtApp 10-19-23

Practice Point: The majority held the Appellate Division should not have refused to consider mother’s appeal on the ground she did not have standing to bring her custody/habeas corpus petition. The Appellate Division did not lack subject matter jurisdiction. The matter was sent back for a ruling on the standing question.

 

THE UNIVERSAL LIFE INSURANCE POLICY AT ISSUE WAS NOT SUBJECT TO INSURANCE LAW 3203(A)(2) WHICH REQUIRES A PROPORTIONAL REFUND WHEN THE INSURED DIES DURING THE PREMIUM PERIOD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, answering a certified question from the Second Department, determined that the universal life policy at issue was not subject to Insurance Law 3203(a)(2) which requires a proportional refund of a paid life insurance premium when the insured dies during the period covered by the premium. Universal life policies are substantively different from term or whole life policies. The court explained the unique aspects of universal life insurance:

Universal life insurance is distinct from term and whole life insurance. To maintain coverage under a term or whole life policy, the policyholder must pay fixed, periodic premiums. A universal life insurance policy does not have a fixed premium—instead, the policyholder can make a payment in any amount, at any time, subject to certain conditions specified in the policy. These payments are deposited in a “cash value account,” also known as a “policy account,” an interest-earning account administered by the insurer. The insurer deducts from the policy account the cost of insurance (COI), which varies from month to month based on variables including the insurer’s total exposure, any administrative fees, and other required payments from the policy account. The remaining funds in the policy account can grow tax-free over time based on an interest rate set by the insurer and can fund future deductions. Universal life insurance policyholders can typically add funds to the policy account at any time and in any amount. Policyholders often choose—but are not required—to pay a “planned premium,” which is a periodic payment often designed, but not guaranteed, to keep the policy in force. A failure to pay a planned premium does not result in termination or lapse of the policy so long as the funds in the policy account are sufficient to cover the deductions. Depending on the terms of the specific policy, the policyholder may also be able to withdraw funds or take loans against the policy value as long as sufficient funds remain to cover the deductions. Nitkewicz v Lincoln Life & Annuity Co. of N.Y., 2023 NY Slip Op 05302, CtApp 10-19-23

Practice Point: Here the universal life insurance policy was not subject to Insurance Law 3202(a)(2) which requires a proportional refund of the premium when the insured dies during the premium period.

Practice Point: The unique aspects of a universal life insurance policy versus a term or whole life policy clearly explained.

 

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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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