Court of Appeals – Page 43 – New York Appellate Digest

IN THESE THREE CASES, CONFINING LEVEL THREE SEX OFFENDERS WHO ARE ELIGIBLE FOR RELEASE FROM PRISON UNTIL COMPLIANT HOUSING IS AVAILABLE WAS NOT A CONSTITUTIONAL VIOLATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over two separate dissenting opinions, determined, in the three cases before the court, confining level three sex offenders who are eligible for release from prison until compliant housing is available was not a constitutional violation:

In these appeals, we consider constitutional challenges to the practice of temporarily confining level three sex offenders in correctional facilities, after the time they would otherwise be released to parole or postrelease supervision (PRS), while they remain on a waiting list for accommodation at a shelter compliant with Executive Law § 259-c (14). In each case, we conclude that there was no constitutional violation. People ex rel. Johnson v Superintendent, Adirondack Corr. Facility, 2020 NY Slip Op 06934, CtApp 11-23-20

November 23, 2020

Correction Law, Criminal Law, Sex Offender Registration Act (SORA)

SEX OFFENDERS SUBJECT TO POSTRELEASE SUPERVISION MAY BE HOUSED IN A RESIDENTIAL TREATMENT FACILITY BEYOND THE SIX-MONTH STATUTORY PERIOD BEFORE COMPLIANT HOUSING HAS BEEN FOUND (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a three-judge dissent, determined that sex offenders under a period of postrelease supervision (PRS) maybe housed in a residential treatment facility (RTF) after the statutory six-month period has expired and before compliant housing has been found:

This appeal presents us with a question of statutory interpretation. Penal Law § 70.45 (3) provides that, “notwithstanding any other provision of law, the board of parole may impose as a condition of postrelease supervision (PRS) that for a period not exceeding six months immediately following release from the underlying term of imprisonment the person be transferred to and participate in the programs of a residential treatment facility (RTF).” Correction Law § 73 (10), in turn, authorizes the Department of Corrections and Community Supervision (DOCCS) “to use any [RTF] as a residence for persons who are on community supervision,” which includes those on PRS (see Correction Law § 2 [31]). The question before us is whether Correction Law § 73 (10) authorizes DOCCS to provide temporary housing in an RTF to sex offenders subject to the mandatory condition set forth in the Sexual Assault Reform Act (SARA) (see Executive Law § 259—c [14]) after the six-month period specified in Penal Law § 70.45 (3) has expired but before the offender on PRS has located compliant housing. We conclude that it does. People ex rel. McCurdy v Warden, Westchester County Corr. Facility, 2020 NY Slip Op 06933, Ct App 11-23-20

November 23, 2020

Family Law

DOMESTIC RELATIONS LAW 111 GIVES A COURT THE DISCRETION TO DISPENSE WITH AN ADULT ADOPTEE’S CONSENT TO ADOPTION; HERE PETITIONERS WERE PROPERLY ALLOWED TO ADOPT MARION T., A 66-YEAR-OLD NON-VERBAL WOMAN WITH A SIGNIFICANT DEVELOPMENTAL DISABILITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and an extensive dissent, determined that the lower court rulings that Domestic Relations Law 111 (1)(a) gives a court the discretion to dispense with the adoptee’s consent to an adoption. Here the petitioners sought to adopt Marion T, a non-verbal 66-year-old women with a significant developmental disability.

[The} issue turns on the proper interpretation of Domestic Relations Law (DRL) § 111(1)(a), which generally requires the consent of an “adoptive child” who is over 14 years old but gives the court discretion to dispense with that consent. We agree with the Appellate Division that, in appropriate circumstances, the statute permits a court to approve an adoption even absent the consent of an adult adoptee. Because that discretion was not abused here and there is record support for the affirmed best interests finding, we affirm. Matter of Marian T. (Lauren R.), 2020 NY Slip Op 06932, CtApp 11-23-20

November 23, 2020

Appeals, Criminal Law, Evidence

THE TRAFFIC STOP WAS BASED ON A COMPUTER-GENERATED “SIMILARITY HIT;” AT THE SUPPRESSION HEARING THE PEOPLE DID NOT MEET THEIR BURDEN OF GOING FORWARD BECAUSE THE BASIS OF THE “SIMILARITY HIT” WAS NOT DEMONSTRATED; THIS PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, determined the People did not meet their burden of going forward at the suppression hearing because they did not make a minimum showing of reasonable suspicion for the traffic stop. Whether the People meet that burden has been deemed a question of law which the Court of Appeals can address. Whether a stop was justified by reasonable suspicion is usually a mixed law and fact question which the Court of Appeals can not review. Here the traffic stop was based on a so-called “similarity hit” generated by the Department of Motor Vehicles database. A “similarity hit” apparently indicates some possible connection between the registered owner of a vehicle and an outstanding warrant. But, at the suppression hearing, the People did not present any evidence of the basis for the “similarity hit;”

According to the officer, a “similarity hit” is generated “based on the name of the registered owner, the date of birth[,] and other aliases.” He testified that the system considers “certain parameters” when identifying “similarity hits,” but he did not know how the Department of Motor Vehicles set those parameters. Nor did he testify as to any specifics of this match.

… [T]he officer did not think that the driver was the subject of the “similarity hit” because the driver was female and the registered owner was male. As the officer stepped around the vehicle to look at the registration and inspection stickers, he spotted a handgun on the floor under the front passenger seat, in which defendant was sitting. After defendant was arrested, the officer checked the MDT [mobile data terminal] information and discovered that the person with the warrant did not, in fact, match the vehicle’s registered owner or anyone else in the vehicle. The officer did not testify as to the name, date of birth, or address of the registered owner, or provide the specific identifying facts of the person set forth in the arrest warrant. …

While information generated by running a license-plate number through a government database may provide police with reasonable suspicion to stop a vehicle …, the information’s sufficiency to establish reasonable suspicion is not presumed … . Thus, when police stop a vehicle based solely on such information, and the defendant, as here, challenges its sufficiency, the People must present evidence of the content of the information … . People v Balkman, 2020 NY Slip Op 06838, CtApp 11-19-20

November 19, 2020

Criminal Law, Evidence, Vehicle and Traffic Law

EVEN IF THE OFFICER WERE WRONG ABOUT WHETHER A NON-FUNCTIONING CENTER BRAKE LIGHT VIOLATES THE VEHICLE AND TRAFFIC LAW, THE OFFICER’S INTERPRETATION OF THE LAW WAS OBJECTIVELY REASONABLE; THEREFORE THE STOP WAS VALID AND THE SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing the Appellate Term, over a concurring memorandum, a concurring opinion, and two dissenting opinions, determined the police officer who stopped defendant reasonably believed the non-functioning center brake light violated the Vehicle and Traffic Law. Therefore the stop was valid and the DWI evidence should not have been suppressed. The Vehicle and Traffic Law requires at least two functioning brake lights. Here there were two functioning lights but the center brake light was not working:

We conclude that the officer’s interpretation of the Vehicle and Traffic Law was objectively reasonable. Vehicle and Traffic Law § 375 (40) (b) mandates that motor vehicles manufactured after a certain date be “equipped with at least two stop lamps, one on each side, each of which shall display a red to amber light visible at least five hundred feet from the rear of the vehicle when the brake of such vehicle is applied.” Vehicle and Traffic Law § 376 (1) (a) prohibits, in relevant part, (1) operating a vehicle “during the period from one-half hour after sunset to one-half hour before sunrise, unless such vehicle is equipped with lamps of a type approved by the commissioner which are lighted and in good working condition”; and (2) operating a vehicle at any time “unless such vehicle is equipped with signaling devices and reflectors of a type approved by the commissioner which are in good working condition.” Vehicle and Traffic Law § 375 (19), in turn, prohibits the operation of a motor vehicle on highways or streets if the vehicle “is defectively equipped and lighted.” Taken together, these provisions could reasonably be read to require that all lamps and signaling devices be in good working condition, and that all equipment and lighting be non-defective, regardless of whether a vehicle is actually required to be equipped with those lamps, signaling devices, equipment, or lights. Even assuming the officer was in fact mistaken on the law, it was nevertheless objectively reasonable to conclude that defendant’s non-functioning center brake light violated the Vehicle and Traffic Law … . Because any error of law by the officer was reasonable, there was probable cause justifying the stop … . People v Pena, 2020 NY Slip Op 06836, CtApp 11-19-20

November 19, 2020

Criminal Law, Evidence

DEFENSE COUNSEL WAS GIVEN NOTICE AND THE OPPORTUNITY TO BE HEARD BEFORE THE ISSUANCE OF THE WARRANT TO TAKE A DNA SAMPLE FROM THE DEFENDANT; DEFENSE COUNSEL WAS NOT ENTITLED TO DISCOVERY OF THE WARRANT APPLICATION PRIOR TO THE ISSUANCE OF THE WARRANT TO ASSESS PROBABLE CAUSE; A VIDEO DEPICTING DEFENDANT WAS PROPERLY AUTHENTICATED; APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and a two-judge dissent, reversing the Appellate Division, determined defendant was not entitled to review the application for the warrant to collect DNA evidence from the defendant’s person before the warrant was issued. Defense counsel was given notice and an opportunity to be heard on the application and did not contest the reasonableness of the bodily intrusion at that time. The Appellate Division held (1) the defense was entitled to review the search warrant application before the warrant was issued (to assess probable cause) and (2) a video depicting the defendant was not properly authenticated. The Court of Appeals reversed on both issues:

The [Appellate Division] held that Supreme Court erred in precluding defense counsel from reviewing the search warrant application and in denying counsel the opportunity to be heard on the issue of probable cause. The Court rejected the People’s argument that Abe A. [56 NY2d 288] requires notice only for the first level of intrusion—seizure of the person—and held that the due process requirement of notice and an opportunity to be heard is likewise required for the subsequent search and seizure of corporeal evidence. The Court also held that the People failed to adequately authenticate the YouTube video … . * * *

It is evident that Abe A.’s requirement of notice and an opportunity to be heard in the pre-execution stage of a warrant authorizing the seizure of evidence by bodily intrusion was satisfied in this case. Defense counsel, having received notice of the hearing on the warrant, was given an opportunity to be heard on the application, other than on the issue of probable cause. Counsel failed to direct any argument to the nature of the intrusion, the value of comparative DNA analysis evidence or the sufficiency of the safeguards preventing unwarranted disclosure of the results of his DNA testing, either at the hearing or in his motion to suppress. … [T]he method and procedures employed in taking the saliva undoubtedly respected relevant Fourth Amendment standards of reasonableness, and defendant’s claim that the failure to provide him discovery of the extant probable cause and an adversarial hearing nonetheless warrants the invocation of the exclusionary rule is without constitutional basis.

[With respect to the video,] …defendant did not dispute that he was the individual who appeared in the video reciting certain words [and] the video contains distinctive identifying characteristics … . … [T]estimony … provided evidence pertinent to the timing of the making of the video—including defendant’s admission of his future intent to make the video the next morning … —and the video was uploaded to YouTube close in time to the homicide. … [T]he video was introduced for its relevance to defendant’s motive related to territorial gang activity—which is not an element of the offense—rather than specifically offered for its truth. People v Goldman, 2020 NY Slip Op 05977, Ct App 10-22-20

October 22, 2020

Contract Law, Debtor-Creditor, Securities, Uniform Commercial Code

STRICT FORECLOSURE AT THE DIRECTION OF THE MAJORITY BONDHOLDERS WHICH CANCELLED THE NOTES PRECLUDED RECOVERY BY THE PLAINTIFFS WHO PURCHASED SOME OF THE NOTES IN THE SECONDARY MARKET (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, over a three-judge dissent, determined the strict foreclosure at the direction of the majority bondholders which cancelled the notes precluded plaintiffs from recovering on notes purchased in the secondary market. The decision is fact-specific, dependent on the wording of documents, and cannot be fairly summarized here:

After the issuer defaulted, plaintiffs, the holders of a minority in principal amount of senior secured debt, brought this lawsuit against the debtor and its guarantors to recover payment of principal and interest. We are called upon to determine whether plaintiffs’ right to sue for payment on the notes survived a strict foreclosure, undertaken by the trustee at the direction of a group of majority bondholders over plaintiffs’ objection, that purported to cancel the notes. We hold that it did … . …

In December 2005, defendant Cleveland Unlimited, Inc. (Cleveland Unlimited), a telecommunications company, issued $150 million of “senior secured” debt in the form of “Notes” pursuant to an indenture agreement (the Indenture). The Notes had a five-year term and required Cleveland Unlimited to pay interest to holders of the Notes (Noteholders or Holders) on a quarterly basis up to and including the maturity date, at which point the principal also became due. The Indenture named Cleveland Unlimited as the “Issuer” of the Notes, eighteen of Cleveland Unlimited’s subsidiaries and affiliates as the “Guarantors,” and U.S. Bank National Association (U.S. Bank) as the Indenture “Trustee.” At the same time the Indenture was executed, the Issuer, the Guarantors, and the Trustee executed a Collateral Trust Agreement and a Security Agreement (collectively, Indenture Documents) … . In April 2010, plaintiffs purchased approximately $5 million of the Notes in the secondary market, amounting to 3.33% of the outstanding principal value.

At issue in this case are certain provisions in the Indenture Documents governing the rights of the Noteholders to receive payment, the remedies available in the event of default, and the power of a majority of Noteholders to direct the Trustee’s choice of remedy. CNH Diversified Opportunities Master Account, L.P. v Cleveland Unlimited, Inc., 2020 NY Slip Op 05976, Ct App 10-20-20

October 22, 2020

Animal Law, Negligence

VETERINARY CLINIC MAY BE LIABLE IN NEGLIGENCE FOR INJURY CAUSED BY A DOG IN THE CLINIC’S WAITING ROOM, BUT THE CLINIC’S LIABILITY SHOULD NOT TURN ON WHETHER THE CLINIC WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES, THE STRICT LIABILITY STANDARD IMPOSED ON DOG-OWNERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge concurrence, determined that the defendant veterinary clinic (Palmer) should not have been awarded summary judgment in this dog-bite case. As a veterinarian was returning a dog (Vanilla) which had just been treated to the dog’s owner in the waiting room the dog slipped out of its collar and allegedly attacked plaintiff. The question was whether the liability theory requiring knowledge of a dog’s vicious propensities applied to the clinic as it does to a dog-owner. The clinic had been awarded summary judgment on the ground it had demonstrated it was not aware of the dog’s vicious propensities. The Court of Appeals held the case against the clinic should be analyzed under a standard negligence theory, not under the strict liability theory applicable to dog-owners:

The vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet-owners—such as landlords who rent to pet owners—under a negligence standard … . However, we have recognized that other competing policies and contemporary social expectations may be at play in certain instances where domestic animals cause injuries. For example, we held that the owner of a farm animal “may be liable under ordinary tort-law principles” when that farm animal is allowed to stray from the property on which it is kept … . …

It is undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. An animal in a veterinary office may experience various stressors—in addition to illness or pain—including the potential absence of its owner and exposure to unfamiliar people, animals, and surroundings. Moreover, veterinarians or other agents of a veterinary practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. …

… [W]e conclude that Palmer does not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice here does not warrant dismissal of plaintiff’s claim. To be sure, “[w]e do not intend to suggest that [Palmer] would be subject to the same strict liability” as the owner of a domestic animal … . However, we are satisfied that, under the circumstances presented here, a negligence claim may lie despite Palmer’s lack of notice of Vanilla’s vicious propensities. Furthermore, viewing the record in the light most favorable to plaintiff, as we must … , questions of fact exist as to whether the alleged injury to plaintiff was foreseeable, and whether Palmer took reasonable steps to discharge its duty of care. Thus, neither party was entitled to summary judgment. Hewitt v Palmer Veterinary Clinic, PC, 2020 NY Slip Op 05975, Ct App 10-20-20

October 22, 2020

Evidence, Municipal Law, Retirement and Social Security Law

NYC POLICE OFFICERS IN THE TIER 3 RETIREMENT SYSTEM ARE ENTITLED TO CREDIT FOR PERIODS OF UNPAID CHILDCARE LEAVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a two-judge dissent, determined that retiring police officers are entitled to credit for the unpaid leave for child care. The appeal raised a question of statutory interpretation. The Court of Appeals found that the relevant provision of the NYC Administrative Code was not preempted by the Retirement and Social Security Law (RSSL):

The Appellate Division order should be reversed and Supreme Court’s judgment declaring that defendants violated the second subdivision (h) of Administrative Code of the City of New York § 13-218 by excluding police officers in tier 3 of the state retirement system from the retirement benefits conferred by that subdivision reinstated. Applying longstanding, basic rules of statutory interpretation, we conclude that the relevant part of Administrative Code § 13-218 renders officers of the New York City Police Department (NYPD) who are members of the tier 3 retirement system eligible for credit for certain periods of unpaid childcare leave, and that the grant of such benefits for those officers is consistent with the Retirement and Social Security Law (RSSL). Lynch v City of New York, 2020 NY Slip Op 05841, Ct App 10-20-20

October 20, 2020

Criminal Law

AFTER DEFENSE COUNSEL REPEATEDLY USED THE N-WORD (QUOTING A CO-DEFENDANT) IN CROSS-EXAMINING THE VICTIM A JUROR STOOD UP AND SAID SHE FOUND THE WORD VERY OFFENSIVE AND WOULD LEAVE IF COUNSEL USED THE WORD AGAIN; THE TRIAL COURT DID NOT CONDUCT A BUFORD HEARING TO DETERMINE WHETHER THE JUROR SHOULD BE DISQUALIFIED; CONVICTION AFFIRMED OVER A THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DeFiore, over a three-judge dissent, determined there was no need for the trial court to conduct a Buford hearing to determine whether a juror should be disqualified. Defense counsel, quoting the words used by a co-defendant, repeatedly said the “n-word.” A juror stood up and said she would leave if counsel use the word again because she found very offensive. The trial court denied a motion for a mistrial and gave a curative instruction. On appeal the defendant argued the trial court should have conducted a Buford hearing and determined that the juror was grossly unqualified:

This appeal by defendant presents the issue … whether the trial court abused its discretion as a matter of law in giving the jury a curative instruction and forgoing a Buford inquiry (People v Buford, 69 NY2d 290 [1987]) of a sworn juror after her mid-trial exclamation that she was “very offen[ded]” by the repetitive use of a racial slur by Bailey’s counsel while cross-examining the victim. Viewed in context, the record supports the trial court’s findings that the juror’s reaction was triggered by counsel’s fifth and gratuitous use of the epithet, and provided no basis to indicate she was grossly unqualified. Since the entire incident unfolded in open court, a Buford inquiry of the juror was unnecessary, as the court was able to adequately assess that her outburst was not a transformative one and her sworn oath to be impartial remained intact. The court’s remedy of admonishing the juror and counsel and issuing a carefully crafted curative instruction—which included a mechanism for any juror to advise the court if they could not be fair and impartial due to anything that occurred at trial—was not an abuse of its discretion. * * *

… [N]ot every allegation of juror misconduct warrants an intrusive Buford inquiry, and we have approved alternate procedures and ameliorative instructions when juror bias or partiality is not in doubt … . In determining whether there are new facts to impugn the jury’s original oath of impartiality or a need to investigate alleged juror misconduct, “‘the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source'” … . Thus, while a court “must investigate and, if necessary, correct a problem, it must also avoid tainting a jury unnecessarily. . . . In this endeavor, sometimes less is more” … . People v Batticks, 2020 NY Slip Op 05840, Ct App 10-20-20

October 20, 2020

Tag Archive for: Court of Appeals

IN THESE THREE CASES, CONFINING LEVEL THREE SEX OFFENDERS WHO ARE ELIGIBLE FOR RELEASE FROM PRISON UNTIL COMPLIANT HOUSING IS AVAILABLE WAS NOT A CONSTITUTIONAL VIOLATION (CT APP).

SEX OFFENDERS SUBJECT TO POSTRELEASE SUPERVISION MAY BE HOUSED IN A RESIDENTIAL TREATMENT FACILITY BEYOND THE SIX-MONTH STATUTORY PERIOD BEFORE COMPLIANT HOUSING HAS BEEN FOUND (CT APP).

DOMESTIC RELATIONS LAW 111 GIVES A COURT THE DISCRETION TO DISPENSE WITH AN ADULT ADOPTEE’S CONSENT TO ADOPTION; HERE PETITIONERS WERE PROPERLY ALLOWED TO ADOPT MARION T., A 66-YEAR-OLD NON-VERBAL WOMAN WITH A SIGNIFICANT DEVELOPMENTAL DISABILITY (CT APP).

THE TRAFFIC STOP WAS BASED ON A COMPUTER-GENERATED “SIMILARITY HIT;” AT THE SUPPRESSION HEARING THE PEOPLE DID NOT MEET THEIR BURDEN OF GOING FORWARD BECAUSE THE BASIS OF THE “SIMILARITY HIT” WAS NOT DEMONSTRATED; THIS PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS (CT APP).

EVEN IF THE OFFICER WERE WRONG ABOUT WHETHER A NON-FUNCTIONING CENTER BRAKE LIGHT VIOLATES THE VEHICLE AND TRAFFIC LAW, THE OFFICER’S INTERPRETATION OF THE LAW WAS OBJECTIVELY REASONABLE; THEREFORE THE STOP WAS VALID AND THE SUPPRESSION MOTION SHOULD NOT HAVE BEEN GRANTED (CT APP).

STRICT FORECLOSURE AT THE DIRECTION OF THE MAJORITY BONDHOLDERS WHICH CANCELLED THE NOTES PRECLUDED RECOVERY BY THE PLAINTIFFS WHO PURCHASED SOME OF THE NOTES IN THE SECONDARY MARKET (CT APP).

VETERINARY CLINIC MAY BE LIABLE IN NEGLIGENCE FOR INJURY CAUSED BY A DOG IN THE CLINIC’S WAITING ROOM, BUT THE CLINIC’S LIABILITY SHOULD NOT TURN ON WHETHER THE CLINIC WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES, THE STRICT LIABILITY STANDARD IMPOSED ON DOG-OWNERS (CT APP).

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