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LARGE CELLULAR DATA TRANSMISSION EQUIPMENT OWNED BY T-MOBILE IS TAXABLE REAL PROPERTY SUBJECT TO REAL PROPERTY TAX LAW 102 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that certain large cellular data transmission equipment owned by T-Moblle is taxable real property subject to Real Property Tax Law (RPTL) 102 (12) (i):

T-Mobile owns large cellular data transmission equipment that it has installed on the exterior of buildings in Mount Vernon. The installations — which are large enough to require the use of “stealth walls” that shield them from view — consist of multiple pieces of interconnected equipment, including base transceiver stations (essentially cabinets housing wiring and providing battery power); antennas that transmit and receive the signals; and coaxial, T-1, and fiber optic cables running amongst the other components. T-Mobile enters multi-year leases with the owners of the buildings to enable it to occupy the exterior space on the buildings for installation of the equipment. * * *

Under the RPTL, all “real property within the state” is subject to real property taxation unless otherwise exempt by law (see RPTL 300). “Real property” is defined under subdivision (12) of RPTL 102. Under RPTL 102(12)(i), that term includes: “When owned by other than a telephone company as such term is defined in paragraph (d) hereof, all lines, wires, poles, supports and inclosures for electrical conductors upon, above and underground used in connection with the transmission or switching of electromagnetic voice, video and data signals between different entities separated by air, street or other public domain . . . .” … . …

The plain language of paragraph i encompasses each component of T-Mobile’s data transmission equipment, which consists of base transceiver stations; antennas; and coaxial, T-1, and fiber optic cables. The base transceiver stations are essentially cabinets that house cables and other electrical components and provide battery power, so they qualify as “inclosures for electrical conductors.” The large rectangular antennas are part of the base transceiver stations and, thus, also “inclosures for electrical conductors.” The various cables in the installations are “lines” and/or “wires” under the plain text of the statute. Because the primary function of the equipment installations is to transmit cellular data, the components are “used in connection with the transmission or switching of electromagnetic voice, video and data signals between different entities separated by air, street or other public domain,” as required by the statute. Thus, although ambiguities in tax statutes are generally resolved in favor of the taxpayer (… , that doctrine is not implicated here because the plain text of RPTL 102(12)(i) unambiguously indicates that T-Mobile’s equipment installations are taxable real property. Matter of T-Mobile Northeast, LLC v DeBellis, 2018 NY Slip Op 08539, CtApp 12-13-18

CELL PHONE COMPANIES, CELL TOWERS

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A SENTENCING COURT MAY REQUIRE A DEFENDANT, AS A CONDITION OF PROBATION, TO PAY FOR ELECTRONIC MONITORING, IF A DEFENDANT CLAIMS AN INABILITY TO PAY, A HEARING MUST BE HELD TO DETERMINE WHETHER ANOTHER ALTERNATIVE TO INCARCERATION IS APPROPRIATE AND, IF NOT, THE DEFENDANT MAY BE SENTENCED TO PRISON (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a dissenting opinion, determined that the sentencing court, as a condition of probation, may require a defendant to pay for a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet. Defendant, who had pled guilty to felony driving while intoxicated, made several monthly payments for the bracelet but then stopped paying and the monitoring company removed the bracelet. County Court then sentenced defendant to prison. The 3rd Department held that the sentence was illegal because the court cannot require a defendant to pay the cost of electronic monitoring:

Were we to hold that any monetary component of a condition that must be borne by a defendant per se invalidated said condition, sentencing courts would be divested of their broad authority to impose a myriad of probationary requirements, and consequently, would, in many instances, no longer view release into the community as a viable alternative to incarceration. In light of this, the requirement that defendant wear and pay for a SCRAM bracelet was well within County Court’s statutory authority under Penal Law § 65.10 (4).

This is not to say that requiring a defendant to wear and pay for an electronic monitoring device will always be reasonable. Courts cannot impose a condition of probation that includes costs a particular defendant cannot feasibly meet. Nor can courts incarcerate a defendant who has initially agreed to meet a condition requiring a payment, but who subsequently becomes unable to do so. * * *

… [I]f, at the imposition of the sentence or during the course of probation, a defendant asserts that they are unable to meet the financial obligations attendant to a certain condition, the sentencing court must hold a hearing on the matter … . The defendant must be given the opportunity to be heard in person, present witnesses, and offer documentary evidence establishing that they made sufficient bona fide efforts to pay … . If, after such inquiry, the sentencing court determines that the defendant has adequately demonstrated an inability to pay the costs associated with a particular condition despite bona fide efforts to do so, the court must attempt to fashion a reasonable alternative to incarceration … . Conversely, if the sentencing court determines, by a preponderance of the evidence … , that “a probationer has willfully refused to pay . . . when [that defendant] can pay, the [court] is justified in revoking probation and using imprisonment as an appropriate penalty for the offense” … . People v Hakes, 2018 NY Slip Op 08538, CtApp 12-13-18

 

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THE MURDER COUNT, WHICH SHOULD HAVE BEEN DISMISSED BECAUSE THE PEOPLE DID NOT SEEK PERMISSION TO RESUBMIT IT AFTER THE GRAND JURY DEADLOCKED ON THE CHARGE, DID NOT TAINT THE CONVICTION ON THE MANSLAUGHTER COUNT UNDER A SPILL-OVER ANALYSIS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a concurring opinion, reversing the appellate division, determined the murder count in the second indictment should have been dismissed because the People did not seek court permission to re-present it after the grand jury which issued the first indictment deadlocked on that charge. But the court further held the murder count, on which defendant was acquitted, did not taint the manslaughter conviction under a spill-over analysis. The manslaughter count was a valid count in the first indictment (both indictments were tried together):

The People’s failure to obtain court permission to resubmit a murder count to a new grand jury after the first grand jury deadlocked on that charge violated Criminal Procedure Law § 190.75 (3), and Supreme Court erred in denying defendant’s pretrial motion to dismiss the murder count in the second indictment on that ground.  * * *

Under the particular circumstances of this case, we conclude that defendant is not entitled to a new trial on the manslaughter count. The People assert that all of the evidence admitted to prove defendant’s guilt of murder in the second degree was also admissible to prove his guilt of manslaughter in the first degree, and defendant does not contend otherwise. … [T]he presence of the tainted murder count here did not result in the admission of any prejudicial evidence that the jury would have been unable to consider if the murder count had been dismissed … . People v Allen, 2018 NY Slip Op 08537, CtApp 12-13-18

 

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WHETHER A JUVENILE’S STATEMENT TO THE POLICE WAS VOLUNTARILY GIVEN PRESENTED A MIXED QUESTION OF LAW AND FACT WHICH IS NOT REVIEWABLE BY THE COURT OF APPEALS, TWO DISSENTERS ARGUED JUVENILES SHOULD NOT BE INTERROGATED OUTSIDE THE PRESENCE OF THEIR ADULT LEGAL GUARDIANS (CT APP).

The Court of Appeals, over a two-judge dissent, determined the finding that a juvenile’s statement to police was voluntarily given presented a mixed question of law fact which is not reviewable by the Court of Appeals. The dissenters argued juveniles should not be interrogated outside the presence of their adult guardians. Matter of Luis P., 2018 NY Slip Op 08427, CtApp 12-11-18

 

TIME LIMITS ON ADDITIONAL COMPENSATION FOR A PERMANENT PARTIAL DISABILITY INCLUDED IN WCL 15 (3) (w) APPLY TO THE CALCULATION OF THE AMOUNT OF THE BENEFITS IN WCL 15 (3) (v) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a dissenting opinion, determined the durational limits for compensation pursuant to Workers’ Compensation Law (WCL) 15 (3) (w) (paragraph w) are incorporated into WCL 15 (3) (v) (paragraph v). Therefore the claimant was entitled to compensation for permanent partial disability (50 % loss of use of his left arm) only for the 275 weeks allowed by paragraph w:

… [N]othing in the language of paragraph v regarding termination of additional compensation upon eligibility for age-based social security benefits contradicts paragraph w’s durational restrictions or precludes their application to paragraph v recipients. By incorporating the entirety of paragraph w’s framework for calculating benefits, paragraph v provides additional compensation lasting a maximum number of weeks as a supplement to the schedule award the worker already received. Paragraph v’s requirement that such payment terminates if the worker becomes eligible for age-based social security payments (regardless of how many weeks have passed) merely places another limit, where applicable, on the additional compensation a claimant can receive. …

… [N]either of the primary benefits that section 15(3) provides are open-ended. Both schedule loss of use awards and non-schedule benefits continue for a maximum number of weeks, depending on the nature or severity of the worker’s disability. Interpreting paragraph v to grant a subset of recipients open-ended benefits limited only by eligibility for age-based social security payments — an award that would potentially span their working lifetimes — would uniquely benefit that small group above all other permanent partial disability award recipients. There is no textual support for such an exceptional interpretation. Rather, under the plain language of paragraph v, additional compensation awards are calculated pursuant to the formula and durational provisions of paragraph w, terminating earlier if or when a claimant becomes eligible for age-based social security benefits. Matter of Mancini v Office of Children & Family Servs., 2018 NY Slip Op 08425, CtApp 12-11-18

 

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ALTHOUGH DEFENDANT WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, THERE WAS NO SEX-RELATED ELEMENT IN THE VIRGINIA OFFENSE, DEFENDANT NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a three-judge dissenting opinion, determined that defendant need not register as a sex offender in New York based upon a murder conviction in Virginia, even though Virginia law required such registration. There was no sex-related element in the offense. Defendant, in 1989, at age 19, murdered his half-sister because she was harassing him. At the time, he said he was “hearing voices telling him to kill people:”

Blind deference to another jurisdiction’s registry without asking, fundamentally, whether that jurisdiction considers its own registrant a sex offender would contravene the plain and limiting language of section 168-a (2) (d) (ii) and could subject an entire class of defendants with no relation to SORA’s purpose to its strict requirements. * * *

In concluding that SORA does not require defendant’s registration because Virginia does not consider defendant a sex offender, we reserve weightier issues of a foreign registry’s potential conflict with New York’s due process guarantees or public policy for another day. …

… Our holding today merely requires a court or the Board to determine—not based on “intuition,” but rather on the offense of conviction and its relation to the foreign registry statute—whether the out-of-state defendant is considered a sex offender before requiring registration under SORA. …

Defendant’s out-of-state felony conviction did not require him to “register as a sex offender” in Virginia under Correction Law § 168-a (2) (d) (ii) and, thus, he should not be required to register as a sex offender in New York. People v Diaz, 2018 NY Slip Op 08424, CtApp 12-11-18

 

 

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RECORDS OF DISCIPLINARY PROCEEDINGS CONCERNING A POLICE OFFICER ARE EXEMPT FROM DISCLOSURE EVEN IF THE IDENTIFYING INFORMATION IS REDACTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming the appellate division, over a concurring opinion and two dissenting opinions, determined that the records of New York Police Department disciplinary proceedings concerning a police officer are exempt from disclosure, even if the identifying information in the records is redacted:

The FOIL exemption at issue, Public Officers Law § 87 (2) (a), provides that an agency may deny access to records that “are specifically exempted from disclosure by state or federal statute.” The parties agree that the disciplinary decisions requested by the NYCLU are covered by a state statute: Civil Rights Law § 50-a. * * *

“There can be no question” that Civil Rights Law § 50-a permits court-ordered disclosure “only in the context of an ongoing litigation” … . Absent officer consent, protected personnel records are shielded from disclosure “except when a legitimate need for them has been demonstrated to obtain a court order” based on a “showing that they are actually relevant to an issue in a pending proceeding” … . Here, in the context of the NYCLU’s FOIL request, the requested records are not “relevant and material” to any pending litigation … , and accordingly, they are not disclosable. * * *

This case presents a straightforward application of Civil Rights Law § 50-a and Public Officers Law § 87 (2) (a), which mandate confidentiality and supply no authority to compel redacted disclosure. To the extent the dissent would prefer to revoke civil rights protections afforded to police officers (Civil Rights Law § 50-a), victims of sex crimes (Civil Rights Law § 50-b), medical patients (Public Health Law § 2803-c [3] [f]), or others, those arguments are properly directed to the Legislature. Matter of New York Civ. Liberties Union v New York City Police Dept., 2018 NY Slip Op 08423, CtApp 12-13-18

FREEDOM OF INFORMATION LAW, POLICE OFFICERS

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ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP).

The Court of Appeals, in a memorandum decision supplemented with an extensive concurring opinion, determined that the defendant’s conviction of enterprise corruption (Penal Law 460.20) was not supported by legally sufficient evidence:

… [T]he proof elicited at trial was not legally sufficient to establish the elements of defendant’s knowledge of the existence of the subject criminal enterprise and the nature of its affairs or his intent to participate in such affairs … .

On the mens rea element, the People were required to prove, beyond a reasonable doubt, that defendant, “having knowledge of the existence of a criminal enterprise and the nature of its activities,” and, “being employed by or associated with such enterprise . . . intentionally conduct[ed] or participate[d] in the affairs of an enterprise” … . Consistent with this statutory mens rea requirement, the trial court additionally instructed the jury, without objection, that the People were required to show that defendant had “chosen to be part of the group and to have worked as a member of it or in affiliation with it to achieve its criminal purposes.”

Here, the evidence of defendant’s knowledge of the existence of the criminal enterprise and his intention to participate in its affairs fell short as a matter of law. The evidence of defendant’s participation in the three requisite criminal acts included in the pattern activity alone does not establish defendant’s knowledge of the existence of the criminal enterprise and the nature of its activities. In addition, the critical trial testimony of the People’s cooperating witness demonstrated that defendant was isolated from — rather than employed by or associated with — the enterprise, and that defendant acted independently on his own behalf, with the singular purpose of serving his own interests. People v Jones, 2018 NY Slip Op 08058, CtApp 11-27-18

CRIMINAL LAW (ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP))/ENTERPRISE CORRUPTION (EVIDENCE, ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP))/EVIDENCE (CRIMINAL LAW, ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP))

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THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION MET ITS STATUTORY BURDEN TO ASSIST PETITIONER, A SEX OFFENDER, IN FINDING SUITABLE HOUSING UPON RELEASE, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a partial dissent and an extensive dissenting opinion, determined that the Department of Corrections and Community Supervision (DOCCS) had met its burden of providing assistance to sex offenders in finding suitable housing upon release. Here the petitioner was transferred to a residential treatment facility (RTF) when his sentence was complete because he was unable to find suitable housing as required by the Sexual Assault Reform Act (SARA):

Correction Law § 201 (5) requires DOCCS to assist inmates prior to release and under supervision to secure housing. DOCCS has interpreted its obligation under the statute as satisfied when it actively investigates and approves residences that have been identified by inmates and when it provides the inmates with adequate resources to allow them to propose residences for investigation and approval. This interpretation is consistent with the plain language of the statute as well as the larger statutory framework. While the agency is free, in its discretion, to provide additional assistance to inmates in locating SARA-compliant housing — particularly where an inmate is nearing the maximum expiration date or is residing in an RTF with the associated restrictions on the ability to conduct a comprehensive search — there is no statutory basis in Correction Law § 201 (5) for imposing such an obligation.

As to whether DOCCS met its obligation in this particular case, the record demonstrates that petitioner met biweekly with an ORC regarding SARA-compliant housing and also met several times with his parole officer. Petitioner was able to propose 58 residences which DOCCS investigated for SARA-compliance. The agency also affirmatively identified at least two housing options for petitioner in New York City — one was rejected by petitioner on the basis that he could not afford it and the other was the shelter in Manhattan where he was ultimately housed. Certainly, the record reflects that DOCCS provided more than passive assistance, given that it affirmatively contacted other agencies and providers on petitioner’s behalf because of his financial needs. Indeed, petitioner was successfully placed with New York City’s DHS through DOCCS’ efforts, which were adequate to meet its statutory obligation to provide assistance.

Finally, we agree with the Appellate Division that there was insufficient record evidence to establish that DOCCS’ determination to place petitioner at the Woodbourne RTF was irrational or that the conditions of his placement at that facility were in violation of the agency’s statutory or regulatory obligations …  .Matter of Gonzalez v Annucci, 2018 NY Slip Op 08057, CtApp 11-27-18

CRIMINAL LAW (THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION MET ITS STATUTORY BURDEN TO ASSIST PETITIONER, A SEX OFFENDER, IN FINDING SUITABLE HOUSING UPON RELEASE, APPELLATE DIVISION REVERSED (CT APP))/CORRECTION LAW (SEX OFFENDERS, HOUSING, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION MET ITS STATUTORY BURDEN TO ASSIST PETITIONER, A SEX OFFENDER, IN FINDING SUITABLE HOUSING UPON RELEASE, APPELLATE DIVISION REVERSED (CT APP))/DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES (DOCCS) (THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION MET ITS STATUTORY BURDEN TO ASSIST PETITIONER, A SEX OFFENDER, IN FINDING SUITABLE HOUSING UPON RELEASE, APPELLATE DIVISION REVERSED (CT APP))/SEX OFFENDERS (THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION MET ITS STATUTORY BURDEN TO ASSIST PETITIONER, A SEX OFFENDER, IN FINDING SUITABLE HOUSING UPON RELEASE, APPELLATE DIVISION REVERSED (CT APP))/CORRECTION LAW (SEX OFFENDERS, HOUSING, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION MET ITS STATUTORY BURDEN TO ASSIST PETITIONER, A SEX OFFENDER, IN FINDING SUITABLE HOUSING UPON RELEASE, APPELLATE DIVISION REVERSED (CT APP))

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EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP).

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Stein, over two separate dissenting opinions, determined that the potential penalty of deportation entitles a defendant to a jury trial, even if, as here, the charges are B misdemeanors which are triable without a jury pursuant to Criminal Procedure Law 340.40:

The Sixth Amendment of the United States Constitution guarantees that a defendant will be judged by a jury of peers if charged with a serious crime. Today, as a matter of first impression, we hold that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation—i.e. removal from the country—is entitled to a jury trial under the Sixth Amendment. * * *

Defendant argues that, although the Sixth Amendment right to a jury trial did not automatically attach to the crimes with which he was charged because they are punishable by less than a six-month term of incarceration, he met his burden of establishing that the crimes carry an additional penalty beyond incarceration—namely, deportation—which he contends is a sufficiently severe penalty to rebut the presumption that the crimes are petty for Sixth Amendment purposes. We agree. People v Suazo, 2018 NY Slip Op 08056, CtApp 11-27-18

CRIMINAL LAW (JURY TRIALS, EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))/JURY TRIALS (CRIMINAL LAW,  EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))/CONSTITUTIONAL LAW (CRIMINAL LAW, JURY TRIALS, EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))/IMMIGRATION LAW (CRIMINAL LAW, JURY TRIALS, EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))

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