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PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a concurring opinion, determined that the “place of business” exception the the stature criminalizing possession of an unlicensed firearm as a felony did not apply to defendant, who was a swing manager at a McDonald’s restaurant. While working at the restaurant the defendant’s firearm discharged accidentally and wounded him:

The question presented on this appeal is whether the “place of business” exception to Penal Law § 265.03 (3) applies to an employee who possessed an unlicensed firearm at work. Defendant contends that “place of business” simply means one’s place of employment, and therefore the exception applies. We read the exception to narrowly encompass a person’s “place of business,” when such person is a merchant, storekeeper, or principal operator of a like establishment. People v Wallace, 2018 NY Slip Op 03305, CtApp 5-8-18

​CRIMINAL LAW (POSSESSION OF A WEAPON, PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))/PLACE OF BUSINESS (POSSESSION OF A WEAPON, PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))/WEAPON, POSSESSION OF (PLACE OF BUSINESS EXCEPTION TO THE STATUTE CRIMINALIZING POSSESSION OF A FIREARM AS A FELONY DID NOT APPLY TO A MANAGER OF A MCDONALD’S RESTAURANT, AS OPPOSED TO A MERCHANT, STOREKEEPER OR PRINCIPAL OPERATOR (CT APP))

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LEAVE TO APPEAL DENIAL OF HABEAS CORPUS RELIEF FOR TWO CHIMPANZEES DENIED, THOUGHTFUL CONCURRING OPINION QUESTIONS THE ANALYSIS USED BY THE APPELLATE DIVISION AND SUGGESTS RECOGNIZING THE CHIMPANZEES’ RIGHT TO LIBERTY (CT APP).

The Court of Appeals denied the motion for leave to appeal in a case seeking habeas corpus relief for two chimpanzees alleged to be confined by their owners to small cages in a warehouse and a cement storefront in a crowded residential area … . Judge Fahey wrote a thoughtful concurring opinion questioning the rationale used by the Appellate Division to deny relief:

The Appellate Division’s conclusion that a chimpanzee cannot be considered a “person” and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species … . …

The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. …

Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect … . Matter of Nonhuman Rights Project, Inc. v Lavery, 2018 NY Slip Op 03309, CtApp 5-8-18

​ANIMAL LAW (LEAVE TO APPEAL DENIAL OF HABEAS CORPUS RELIEF FOR TWO CHIMPANZEES DENIED, THOUGHTFUL CONCURRING OPINION QUESTIONS THE ANALYSIS USED BY THE APPELLATE DIVISION AND SUGGESTS RECOGNIZING THE CHIMPANZEES’ RIGHT TO LIBERTY (CT APP))/APPEALS (ANIMAL RIGHTS, LEAVE TO APPEAL DENIAL OF HABEAS CORPUS RELIEF FOR TWO CHIMPANZEES DENIED, THOUGHTFUL CONCURRING OPINION QUESTIONS THE ANALYSIS USED BY THE APPELLATE DIVISION AND SUGGESTS RECOGNIZING THE CHIMPANZEES’ RIGHT TO LIBERTY (CT APP))//HABEAS CORPUS (ANIMAL RIGHTS, LEAVE TO APPEAL DENIAL OF HABEAS CORPUS RELIEF FOR TWO CHIMPANZEES DENIED, THOUGHTFUL CONCURRING OPINION QUESTIONS THE ANALYSIS USED BY THE APPELLATE DIVISION AND SUGGESTS RECOGNIZING THE CHIMPANZEES’ RIGHT TO LIBERTY (CT APP))

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BECAUSE SUBSTANTIAL EVIDENCE SUPPORTED THE NYC COMMISSION ON HUMAN RIGHTS’ RULING THAT CONSTRUCTION OF A HANDICAPPED ACCESSIBLE ENTRANCE WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, determined that substantial evidence supported the NYC Commission on Human Rights’ ruling that the conversion of a window to a handicapped-accessible entrance for a tenant in petitioners’ building would not cause petitioners undue hardship. The dissent argued petitioners had carried their burden of proof on that issue by presenting evidence the conversion presented many structural issues which might necessitate evacuation of the building. The majority simply decided there was sufficient evidence to support the Commission’s ruling and an appellate court’s review power stops there:

In light of the Commission’s ruling in favor of respondents and because petitioners have the burden of demonstrating undue hardship … , the issue is whether there is substantial evidence to support the Commission’s conclusion that petitioners failed to carry that burden.

“Quite often there is substantial evidence on both sides” of an issue disputed before an administrative agency … , and the substantial evidence test “demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . Applying this standard, “[c]ourts may not weigh the evidence or reject [a] determination where the evidence is conflicting and room for choice exists” … . Instead, “when a rational basis for the conclusion adopted by the [agency] is found, the judicial function is exhausted. The question, thus, is not whether [the reviewing court] find[s] the proof . . . convincing, but whether the [agency] could do so” … . Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 2018 NY Slip Op 03303, CtApp 5-8-18

​ADMINISTRATIVE LAW (EVIDENCE, BECAUSE SUBSTANTIAL EVIDENCE SUPPORTED THE NYC COMMISSION ON HUMAN RIGHTS’S RULING THAT CONSTRUCTION OF A HANDICAPPED ACCESSIBLE ENTRANCE WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP))/EVIDENCE (ADMINISTRATIVE LAW, WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP))/APPEALS (ADMINISTRATIVE LAW, BECAUSE SUBSTANTIAL EVIDENCE SUPPORTED THE NYC COMMISSION ON HUMAN RIGHTS’S RULING THAT CONSTRUCTION OF A HANDICAPPED ACCESSIBLE ENTRANCE WOULD NOT CAUSE UNDUE HARDSHIP TO THE PROPERTY OWNERS APPELLATE REVIEW CAN GO NO FURTHER, EXTENSIVE TWO-JUDGE DISSENT (CT APP))

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BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a concurrence and a three-judge dissent, reversing the Appellate Division, determined the three-year statute of limitations applies to no-fault claims against a self-insurer. The court reasoned that the self-insurance option is a creature of statute, not a contract:

We conclude that the three-year statute of limitations as set forth in CPLR 214 (2), which governs disputes with respect to penalties created by statute, should control this case. There is no dispute “that it is the gravamen or essence of the cause of action that determines the applicable Statute of Limitations” … , or that a three-year limitations period applies to “an action to recover upon a liability. . . created or imposed by statute” … . Moreover, although the three-year period of limitation in “CPLR 214 (2) does not automatically apply to all causes of action in which a statutory remedy is sought” … , that condition does attach to instances in which “liability would not exist but for a statute” (id.).

The no-fault benefits in dispute are not provided by a contract with a private insurer. Instead defendant has met its statutory obligation by self-insuring. No-fault is a creature of statute … . Contact Chiropractic, P.C. v New York City Tr. Auth., 2018 NY Slip Op 03093, CtApp 5-1-18

​INSURANCE LAW (NO-FAULT, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/CIVIL PROCEDURE (INSURANCE LAW, NO-FAULT, STATUTE OF LIMITATIONS, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/CPLR 214 (INSURANCE LAW, NO-FAULT, STATUTE OF LIMITATIONS, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/NO-FAULT (BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/STATUTE OF LIMITATIONS  (INSURANCE LAW, NO-FAULT, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))/SELF-INSURER  (INSURANCE LAW, NO-FAULT, STATUTE OF LIMITATIONS, BECAUSE NO-FAULT BENEFITS PROVIDED BY A SELF-INSURER ARE A CREATURE STATUTE, NOT AN INSURANCE CONTRACT, THE THREE-YEAR (NOT SIX-YEAR) STATUTE OF LIMITATIONS APPLIES TO NO-FAULT CLAIMS AGAINST A SELF-INSURER (CT APP))

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CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, affirming the Appellate Division, determined the evidence was sufficient to convict the defendant of violating Penal Law 165.07 (unlawful use of secret scientific material). Just before leaving the employ of Goldman Sachs to begin work at another company, the defendant had uploaded (copied) to a German server source code used by Goldman Sachs for high frequency trading. There was no evidence anyone other than the defendant had access to the uploaded source code. The major issues were whether the source code had a “physical form” or was “appropriated” within the mean of the statute:

… [W]e conclude that viewing the facts in the light most favorable to the People, a rational jury could have found that the “reproduction or representation” that defendant made of Goldman’s source code, when he uploaded it to the German server, was tangible in the sense of “material” or “having physical form.” The jury heard testimony that the representation of source code has physical form. … [T]he computer engineer … testified that while source code, as abstract intellectual property, does not have physical form, the “[r]epresentation of it” is material. He explained that when computer files are stored on a hard drive or CD, they are physically present on that hard drive or disc, and further stated that data is visible “in aggregate” when stored on such a medium. The jury also heard testimony that source code that is stored on a computer “takes up physical space in a computer hard drive.” Given that a reproduction of computer code takes up space on a drive, it is clear that it is physical in nature. In short, the changes that are made to the hard drive or disc, when code or other information is stored, are physical. * * *

We conclude that there is legally sufficient evidence that defendant created a tangible copy of the source code on the German server in violation of Penal Law § 165.07. * * *

… [W]e must decide is whether there is legally sufficient evidence that [defendant] had the necessary mens rea of “intent to appropriate . . . the use of secret scientific material” (Penal Law § 165.07).  * * *

Appropriation does not imply depriving another of property. In fact, larceny in general is defined as involving either intent to appropriate or intent to deprive, with the clear implication that the two terms refer to separate concepts. * * * … [D]efendant may have intended to “appropriate” the source code without intending to deprive Goldman of all possession or use. People v Aleynikov, 2018 NY Slip Op 03174, CtApp 5-3-18

​CRIMINAL LAW (CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/SECRET SCIENTIFIC MATERIAL (CRIMINAL LAW, CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/EVIDENCE (CRIMINAL LAW, CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/SOURCE CODE (CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))/INTELLECTUAL PROPERTY (CONVICTION FOR UNLAWFUL USE OF SECRET SCIENTIFIC MATERIAL, STEMMING FROM DEFENDANT’S UPLOADING OF HIGH FREQUENCY TRADING SOURCE CODE OWNED BY GOLDMAN SACHS, AFFIRMED, SOURCE CODE HAD A PHYSICAL FORM AND WAS APPROPRIATED WITHIN THE MEANING OF THE STATUTE (CT APP))

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BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a concurrence and a three-judge extensive dissent, determined that the warnings given defendant driver about the consequences of refusing to take the breathalyzer blood-alcohol test were inaccurate, rendering the defendant’s consent to the test involuntary and requiring the suppression of all evidence. The warnings, which were given more than two hours after defendant’s DWI arrest, inaccurately stated that evidence of defendant’s test refusal would be admissible at trial:

… [B]ecause the breathalyzer test was not performed within two hours of defendant’s arrest, and the requirements necessary to obtain a court order pursuant to Vehicle and Traffic Law § 1194 (3) were not met, the test results were not admissible under the statutory scheme (see Vehicle and Traffic Law § 1195 [1]; see also Smith, 18 NY3d at 550-551 [holding that, absent compliance with the statute, even evidence of a refusal must be suppressed]). Nevertheless, … the test results may still be admissible if defendant voluntarily consented to take the test because “the two-hour limitation . . . has no application” when the “defendant [has] expressly and voluntarily consented to administration of the [breath] test” … . The issue before us, then, is whether defendant gave his voluntary consent to the administration of the test, which generally presents a mixed question of law and fact … . However, it is undisputed that defendant expressly consented only after the expiration of the two-hour period and after being warned about the consequences of failing to do so; the parties’ dispute here turns on whether the warnings were legally accurate and, consequently, whether his consent was voluntary … .We conclude that, because more than two hours had passed since defendant’s arrest, the warning that evidence of his refusal to take the breathalyzer test would be admissible at trial was inaccurate as a matter of law and, therefore, the record supports the conclusion of the courts below that his consent to the test was involuntary. People v Odum, 2018 NY Slip Op 03173, CtApp 5-3-18

​CRIMINAL LAW (DWI, BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))/EVIDENCE (CRIMINAL LAW, DWI, BREATHALYZER, BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))/BREATHALYZER (BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))/DRIVING WHILE INTOXICATED (DWI) (BREATHALYZER, BEFORE CONSENTING TO A BREATHALYZER BLOOD-ALCOHOL TEST IN THIS DWI CASE, MORE THAN TWO HOURS AFTER DEFENDANT’S ARREST, DEFENDANT WAS  INACCURATELY TOLD A TEST REFUSAL WOULD BE ADMISSIBLE AT TRIAL, DEFENDANT’S CONSENT TO THE TEST WAS THEREFORE NOT VOLUNTARY, EVIDENCE PROPERLY SUPPRESSED (CT APP))

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IN THIS MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT ACTION, DAMAGES CANNOT BE MEASURED BY THE DEVELOPMENT COSTS AVOIDED BY THE COMPANY WHICH MISAPPROPRIATED THE TRADE SECRETS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over an extensive three-judge dissenting opinion, determined that the “cost avoidance” measure of damages should not be applied in this misappropriation of trade secrets, unfair competition and unjust enrichment action. Plaintiff proved at trial that former employees defected to defendant rival company, bringing trade secrets with them. Plaintiff’s only proof of damages was its expert’s opinion about how much it would have cost the rival company to develop the product without the misappropriated trade secrets (“avoided costs”):

… [T]he measure of damages in a trade secret action must be designed, as nearly as possible, to restore the plaintiff to the position it would have been in but for the infringement. Whether those losses are measured by the defendant’s profits, revenues, cost savings or any other measure of unjust gain, there is “no presumption of law or of fact” that such a figure will adequately approximate the losses incurred by the plaintiff … . A plaintiff therefore may not elect to measure its damages by the defendant’s avoided costs in lieu of its own losses. * * *

… [D]amages in trade secret actions must be measured by the losses incurred by the plaintiff, and … damages may not be based on the infringer’s avoided development costs. * * *

… .[W]here a defendant saves, through its unlawful activities, costs and expenses that otherwise would have been payable to third parties, those avoided third-party payments do not constitute funds held by the defendant “at the expense of” the plaintiff. Therefore, a plaintiff bringing an unjust enrichment action may not recover as compensatory damages the costs that the defendant avoided due to its unlawful activity in lieu of the plaintiff’s own losses. E.J. Brooks Co. v Cambridge Sec. Seals, 2018 NY Slip Op 03171, CtApp 5-3-18

​CORPORATION LAW (MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT, IN THIS MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT ACTION, DAMAGES CANNOT BE MEASURED BY THE DEVELOPMENT COSTS AVOIDED BY THE COMPANY WHICH MISAPPROPRIATED THE TRADE SECRETS (CT APP))/TRADE SECRETS (MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT, IN THIS MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT ACTION, DAMAGES CANNOT BE MEASURED BY THE DEVELOPMENT COSTS AVOIDED BY THE COMPANY WHICH MISAPPROPRIATED THE TRADE SECRETS (CT APP))/UNFAIR COMPETITION (MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT, IN THIS MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT ACTION, DAMAGES CANNOT BE MEASURED BY THE DEVELOPMENT COSTS AVOIDED BY THE COMPANY WHICH MISAPPROPRIATED THE TRADE SECRETS (CT APP))/UNJUST ENRICHMENT  (MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT, IN THIS MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT ACTION, DAMAGES CANNOT BE MEASURED BY THE DEVELOPMENT COSTS AVOIDED BY THE COMPANY WHICH MISAPPROPRIATED THE TRADE SECRETS (CT APP))/DAMAGES (AVOIDED COSTS, (MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT, IN THIS MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT ACTION, DAMAGES CANNOT BE MEASURED BY THE DEVELOPMENT COSTS AVOIDED BY THE COMPANY WHICH MISAPPROPRIATED THE TRADE SECRETS (CT APP))/AVOIDED COSTS (DAMAGES, MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT, IN THIS MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT ACTION, DAMAGES CANNOT BE MEASURED BY THE DEVELOPMENT COSTS AVOIDED BY THE COMPANY WHICH MISAPPROPRIATED THE TRADE SECRETS (CT APP))/INTELLECTUAL PROPERTY (MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT, IN THIS MISAPPROPRIATION OF TRADE SECRETS, UNFAIR COMPETITION, UNJUST ENRICHMENT ACTION, DAMAGES CANNOT BE MEASURED BY THE DEVELOPMENT COSTS AVOIDED BY THE COMPANY WHICH MISAPPROPRIATED THE TRADE SECRETS (CT APP))

MERE USE OF ANOTHER’S PERSONAL IDENTIFYING INFORMATION, LIKE A CREDIT CARD NUMBER, ESTABLISHES A VIOLATION OF NEW YORK’S IDENTITY THEFT STATUTE, THERE IS NO NEED TO PROVE THE DEFENDANT ASSUMED THE VICTIM’S IDENTITY IN SOME ADDITIONAL WAY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined that New York’s identity theft statute is violated by the use of personal identifying information, like a credit card number, without more. The 1st Department case, which was reversed, had held the mere use of personal identifying information is insufficient, and the People must establish a defendant both used the victim’s personal identifying information and assumed the victim’s identity. The 1st Department concluded the proof had established that defendant used the personal identifying information of the victim but not that he assumed her identity. (The defendant in the 1st Department case had assumed the identity of a fictitious person.) The 4th Department case, which was affirmed, concluded defendant’s use of the victim’s name and bank account number established she assumed his identity within the meaning of the statute, and the phrase “assumes the identity of another person” is not a discrete element of the identity theft statute:

The common issue presented in these appeals is whether the People may establish that a defendant “assumes the identity of another,” within the meaning of New York’s identity theft statute, by proof that the defendant used another’s personal identifying information, such as that person’s name, bank account, or credit card number. Defendants … argue that the use of personal identifying information does not automatically establish that a defendant assumes another’s identity, and thus the People bear the burden of establishing independently both a defendant’s use of protected information and assumptive conduct. The Appellate Division departments have split on the proper interpretation of the disputed statutory text. The 1st Department adopted the construction advanced here by defendants, leading to its conclusion that [the] conviction of identity theft was unsupported by sufficient evidence. By contrast, the 4th Department concluded that the statute applies when a defendant uses the personal identifying information of another, upholding [the] conviction. We now reject defendants’ decontextualized interpretation of the statutory language and conclude that the law defines the use of personal identifying information of another as one of the express means by which a defendant assumes that person’s identity. People v Roberts, 2018 NY Slip Op 03172, CtApp 5-3-18

​CRIMINAL LAW (IDENTITY THEFT, MERE USE OF ANOTHER’S PERSONAL IDENTIFYING INFORMATION, LIKE A CREDIT CARD NUMBER, ESTABLISHES A VIOLATION OF NEW YORK’S IDENTITY THEFT STATUTE, THERE IS NO NEED TO PROVE THE DEFENDANT ASSUMED THE VICTIM’S IDENTITY IN SOME ADDITIONAL WAY (CT APP))/IDENTITY THEFT (MERE USE OF ANOTHER’S PERSONAL IDENTIFYING INFORMATION, LIKE A CREDIT CARD NUMBER, ESTABLISHES A VIOLATION OF NEW YORK’S IDENTITY THEFT STATUTE, THERE IS NO NEED TO PROVE THE DEFENDANT ASSUMED THE VICTIM’S IDENTITY IN SOME ADDITIONAL WAY (CT APP))

DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) HAS THE POWER TO UNILATERALLY UNDERTAKE THE REMEDIATION OF A HAZARDOUS WASTE SITE, WITHOUT THE PARTICIPATION OF THE CORPORATION WHICH RELEASED THE WASTE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined the Department of Environmental Conservation (DEC) had the power to unilaterally undertake the remediation of a hazardous waste site, without the participation of the corporation (FMC) which released the waste. The fact that FMC had been operating under an interim permit (for 38 years) did not insulate FMC from the consequences of violating the permit.

The only reasonable interpretation consistent with the statutory scheme and legislative purpose is that permittees and prospective permittees who exceed the terms of their permit or violate the performance standards required of those operating under interim status violate [Environmental Conservation Law (ECL) section 27—0914. * * *

,,, [T]itle 13 [of the ECL] provides an avenue for DEC to use the state superfund to unilaterally remediate the relevant properties … . …[T]hat statute requires DEC, absent exigent circumstances, to have first made “all reasonable efforts to secure voluntary agreement to pay the costs of necessary remedial actions from owners” … . … Here, DEC’s conducting a year of negotiations only to be told that FMC cannot see any mutually-agreed upon path forward is more than the statute requires. The statute’s other requirement—that DEC later make “all reasonable efforts to recover the full amount of any funds expended” … —will be fulfilled in a CERCLA cost recovery action in federal district court. That action will provide FMC with an opportunity for a hearing to dispute its liability, as DEC has repeatedly acknowledged throughout the course of this proceeding. Matter of FMC Corp. v New York State Dept. of Envtl. Conservation, 2018 NY Slip Op 03094, CtApp 5-1-18

ENVIRONMENTAL LAW (HAZARDOUS WASTE, DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) HAS THE POWER TO UNILATERALLY UNDERTAKE THE REMEDIATION OF A HAZARDOUS WASTE SITE, WITHOUT THE PARTICIPATION OF THE CORPORATION WHICH RELEASED THE WASTE (CT APP))/HAZARDOUS WASTE (ENVIRONMENTAL LAW, DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) HAS THE POWER TO UNILATERALLY UNDERTAKE THE REMEDIATION OF A HAZARDOUS WASTE SITE, WITHOUT THE PARTICIPATION OF THE CORPORATION WHICH RELEASED THE WASTE (CT APP))/REMEDIATION (HAZARDOUS WASTE, ENVIRONMENTAL LAW,  DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) HAS THE POWER TO UNILATERALLY UNDERTAKE THE REMEDIATION OF A HAZARDOUS WASTE SITE, WITHOUT THE PARTICIPATION OF THE CORPORATION WHICH RELEASED THE WASTE (CT APP))

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SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP).

The Court of Appeals affirmed the Appellate Division’s determination that suppression of all evidence was required in this traffic stop case. Judge Garcia wrote an extensive dissenting opinion questioning the continued viability of the DeBour criteria for the analysis of encounters with the police. The dissenting opinion is well-worth reading but is not summarized here. The majority noted that a suppression ruling that is not reduced to writing is appealable:

The Appellate Division did not err in rejecting the People’s argument that defendant could not challenge on appeal a suppression ruling that was not reduced to writing. Record evidence supports the Appellate Division’s suppression determination and, accordingly, that determination is beyond this Court’s further review. To the extent the dissent questions the continued utility of the DeBour paradigm for analyzing encounters between police and members of the public (People v DeBour, 40 NY2d 210 [1976]) and suggests that People v Garcia (20 NY3d 317 [2012]) was wrongly decided, those questions are not presented here where the parties litigated this case within the framework of our existing precedent. People v Gates, 2018 NY Slip Op 03096, CtApp 5-1-18

​CRIMINAL LAW (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/EVIDENCE (CRIMINAL LAW, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/STREET STOPS (CRIMINAL LAW, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/STREET STOPS (CRIMINAL LAW, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/APPEALS (CRIMINAL LAW, ORAL RULINGS, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/SUPPRESSION (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/SEARCH AND SEIZURE (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/DE BOUR (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))

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