News reports have it that the Chief Judge has admonished the various Departments to constrain themselves in granting motions for leave to appeal to the Court of Appeals – so that the Court may determine what decisions are worthy of further pursuit. This direction, if true, may account for the fewer number of meaningful decisions on civil matters during the first several months of the Court’s 2018-2019 Term.
The Court of Appeals did release decisions having to do with the posting of prices for credit card use; the constitutionality of differential security for cost provisions between residents and non-residents; the standard for review under an Article 78 proceeding to review challenges to a university’s determination that a student violated its code of conduct; and whether direct consent of the landlord to improvements by a tenant may be inferred from the terms of the lease for Lien Law purposes.
And the Court decided criminal conviction appeals relating to remote alcohol-monitoring bracelets; whether the Sixth Amendment requires that a non-citizen defendant charged with a crime that potentially could result in deportation is entitled to a trial by jury; and the scope of information from a police officer’s personnel records that is confidential and exempt from disclosure under the Freedom of Information Law.
Expressions Hair Design v. Schneiderman, 2018 NY Slip Op 07037 (October 23, 2018)
How does a merchant comply with New York’s General Business Law § 518 concerning prices charged to credit-card users? Answer: The only way a merchant can comply is by posting the total price that credit card users must pay.
This case, which has already been to the U.S. Supreme Court, involves New York General Business Law § 518, which states:
No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.
Any seller who violates the provisions of this section shall be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars or a term of imprisonment up to one year, or both.
Credit card companies charge merchants transaction fees or “swipe fees” for customer payments made by credit card. Merchants may pass those fees onto customers, in different ways. A merchant may distribute the cost to all customers, regardless of the means by which they pay, or a merchant may charge those using credit cards more than those who pay by cash, check (so-called “differential pricing”).
Plaintiffs were five merchants who alleged that they wanted to engage in differential pricing and to tell customers of their practice by stating the cash price in dollars and cents and the credit card price as a percentage or dollars-and-cents amount, reflecting only the additional charge for credit card purchases and not the total dollars-and-cents price for such purchases (a so-called “single-sticker regime”). The merchants challenged GBL § 518 as a violation of their First Amendment rights, because it allows them to charge credit card users higher prices but prohibits them from describing the price difference as they choose.
In 2013, Expressions Hair Design, Five Points Academy, Brooklyn Farmacy & Soda Fountain, Brite Buy Wines & Spirits, and Patio.com filed a suit in federal court against the Attorney General of New York and three District Attorneys, challenging GBL § 518. Plaintiffs sought to enjoin the enforcement of the statute on the grounds that it violated the First Amendment and was unconstitutionally vague.
The United States District Court for the Southern District of New York, after noting that “Alice in Wonderland has nothing on section 518 of the New York General Business Law”…ruled that GBL § 518 violated the First Amendment. The District Court also held that the statute was void for vagueness. The court enjoined the defendants from enforcing the statute.
The United States Court of Appeals for the Second Circuit vacated the District Court’s judgment, interpreting the statute to prohibit the plaintiffs’ desired single-sticker pricing scheme but reasoning that the statute is merely a price regulation that does not implicate First Amendment concerns. The Second Circuit also rejected plaintiffs’ vagueness challenge.
In 2017, the United States Supreme Court in turn vacated the Second Circuit’s judgment. Limiting its review to plaintiffs’ proposed single-sticker regime, the Supreme Court accorded deference to, and followed, the Second Circuit’s interpretation that “signs of the kind that the merchants wish to post…violated § 518 because they identify one sticker price — $10 — and indicated that credit card users were charged more than that amount”. However, the Supreme Court held that the prohibition of this practice did not implicate the First Amendment.
The Supreme Court remanded the case to the Second Circuit for evaluation of § 518 as a restraint on speech, leaving it to the Second Circuit to determine which of two standards should be used to evaluate whether the statute violates the First Amendment: the conventional commercial speech standard or instead the standard applicable to commercial disclosure statutes. Finally, the high court rejected plaintiffs’ vagueness challenge.
On remand, the Second Circuit determined that certification to the Court of Appeals was appropriate and asked the Court “whether a merchant complies with Section 518 so long as the merchant posts the total dollars-and-cents price charged to credit card users”.
The Court of Appeals looked to a federal statute for guidance.
In 1976, the United States Congress passed an amendment to the Truth in Lending Act (TILA) of 1968, providing that “[n]o seller in any sales transaction may impose a surcharge on a cardholder who elects to use a credit card in lieu of payment by cash, check, or similar means”. The 1976 version of TILA thus barred merchants from imposing “surcharges” on customers who use credit cards. The wording (except for the insignificant difference between “cardholder” and “holder”) was substantially identical to that later used by New York in GBL § 518.
In the 1976 amendment, Congress defined the terms “discount” (as used in the preexisting version of TILA) and “surcharge” (as used in the amendment prohibiting a surcharge) as follows:
The term discount’…means a reduction made from the regular price. The term discount’…shall not mean a surcharge…The term surcharge’…means any means of increasing the regular price to a cardholder which is not imposed upon customers paying by cash, check, or similar means.
Significantly, a 1981 renewal of the statute supplemented the provisions — which had defined “discount” and “surcharge” in terms of the retailer’s “regular price” — by defining the term “regular price.” The 1981 renewal added a provision explaining the concept as follows:
[T]he term regular price’ means the tag or posted price charged for the property or service if a single price is tagged or posted, or the price charged for the property or service when payment is made by use of . . . a credit card if either (1) no price is tagged or posted, or (2) two prices are tagged or posted, one of which is charged when payment is made by use of…a credit card and the other when payment is made by use of cash, check, or similar means[.]
The Court of Appeals held that the purpose of the federal statute was clear. It was intended to ensure “that consumers will be seeing at least the highest possible price they will have to pay when they see a tagged or posted price. In other words, consumers cannot be lured on the basis of the low, rock-bottom price’ only to find at the cash register that the price will be higher if a credit card is used”. “Each individual merchant is free to determine what manner or method of disclosure best suits his or her purpose, so long as a good faith effort has been made to clearly and conspicuously disclose the availability of cash discounts”.
The Court of Appeals concluded that it was also clear that the intent of New York’s Legislature, in enacting GBL § 518, was to replicate the prohibitions in the federal statute and create a ban coextensive with its recently federal counterpart (which lapsed in 1984).
In light of this legislative history, the Court of Appeals held that GBL § 518, like its federal precursor, permitted differential pricing but required that a higher price charged to credit card users be posted in total dollars-and-cents form. By contrast, single-sticker pricing, as proposed by plaintiffs, would require a consumer to engage in arithmetic, which might be difficult depending on the cash price, in order to calculate the actual price for a credit card purchase.
In an interesting aside, the majority noted that only the act of imposing a surcharge as defined by the statute, not the use of the word surcharge, is prohibited by §518. Thus, merchants can call the price difference a surcharge as long as the total credit card price is displayed.
Clement v. Durban, 2018 NY Slip Op 07693 (November 14, 2018)
Does New York State’s longstanding security for costs provisions that treats residents and non-residents differently violate the Privileges and Immunities clause of the United States Constitution? Answer: No.
Section 8501(a) of the CPLR, states in relevant part:
“Except where the plaintiff has been granted permission to proceed as a poor person or is the petitioner in a habeas corpus proceeding, upon motion by the defendant without notice, the court or a judge thereof shall order security for costs to be given by the plaintiffs where none of them is…a resident of the state when the motion is made”.
CPLR 8503 sets the minimum undertaking at $500 in New York City and $250 in the rest of the State. That provision also provides the Court with discretion to fix a greater amount.
When plaintiff commenced this personal injury action, she was a New York resident. Plaintiff then relocated to Georgia. Defendants then moved for an order compelling the non-resident plaintiff to post a minimum of $500 security for costs in the event she lost the case. Defendants also requested a stay of the proceedings until plaintiff complied. In opposition, plaintiff argued that CPLR 8501 (a) and 8503 violated the Privileges and Immunities Clause of the Federal Constitution by impairing nonresident plaintiffs’ fundamental right of access to the courts.
The trial court granted defendants’ motion, holding that although access to the courts was a fundamental right protectable under the Privileges and Immunities Clause, CPLR 8501 (a) and 8503 did not bar access to the courts. It further noted that security for costs provisions are common nationwide.
The Appellate Division unanimously affirmed. The court held that CPLR article 85 satisfied the standard set forth by the U.S. Supreme Court, that nonresidents must be given “access to the courts of the state upon terms which in themselves are reasonable and adequate for the enforcing of any rights [they] may have”. The Appellate Division held that “the challenged statutory provisions do not deprive noncitizens of New York of reasonable and adequate access to New York courts”. The Appellate Division granted leave to appeal.
The Court of Appeals noted that the Privileges and Immunities Clause was the preeminent constitutional directive “to constitute the citizens of the United States [as] one people”. In keeping with that goal, the Supreme Court has interpreted the clause to require “the State [to] treat all citizens, resident and nonresident, equally” and applies to only “those privileges’ and immunities’ bearing upon the vitality of the Nation as a single entity”. The Supreme Court identified certain “fundamental” privileges protected under the Privileges and Immunities Clause, which include “[nonresidents’] pursuit of common callings within the State; in the ownership and disposition of privately held property within the State; and in access to the courts of the State”.
Neither the Supreme Court nor the Court of Appeals has insisted on equal treatment for nonresidents “to a drily logical extreme”. The Supreme Court has made clear that “the privileges and immunities clause is not an absolute”. Rather, the clause prevents a state from imposing only “unreasonable” burdens on nonresidents, including with respect to access to the courts of the state. In the specific context of access to the courts, the Supreme Court has held that it “does not require States to erase any distinction between citizens and non-citizens that might conceivably give state citizens some detectable litigation advantage”.
A two-step inquiry governs Privileges and Immunities Clause challenges to statutes providing for disparate treatment on the basis of residency. First, “the court must decide whether the [statute] burdens one of those privileges and immunities protected by the Clause”. When the provision implicates access to the courts, the court must assess whether nonresidents are given access on “reasonable and adequate…terms…for the enforcing of any rights [they] may have”. If nonresidents are provided reasonable and adequate access to the courts, even if not on terms that “are technically and precisely the same in extent as those accorded to resident citizens,” then the “constitutional requirement is satisfied,” inasmuch as no fundamental right protected by the Privileges and Immunities Clause has been burdened.
Second, should a court determine that a fundamental right has been impinged, the burden shifts to the defendants, who have the opportunity to prove that the challenged restriction should be upheld even though it “deprives nonresidents of a protected privilege”. The challenged restriction should be invalidated only if “the restriction is not closely related to the advancement of a substantial state interest”. “[A] state may defend its position by demonstrating that (i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective’”.
Section 8501 (a) expressly identified limited circumstances in which nonresident plaintiffs do not have to post costs, including where the plaintiff qualifies for poor persons’ relief. CPLR 8503 specifies that the security shall $500 within New York City and $250 in all other counties, with discretion to fix “such greater amount” as necessary, depending on the circumstances of the case and the degree of record support. Should the plaintiff refuse to post security ordered by the court within 30 days of the order staying the action, the court “may” dismiss the complaint.
The Court of Appeals rejected plaintiff’s assertion that she has met her burden simply by identifying a facially discriminatory restriction that relates to a protectable fundamental right. The Supreme Court’s jurisprudence unequivocally holds that “the constitutional requirement [set forth in the Privileges and Immunities Clause] is satisfied if . . . nonresident[s] [are] given [reasonable and adequate] access to the courts of the state,” even if the access is not “technically and precisely the same in extent as those accorded to resident citizens”. To that end, disparate terms of access to the courts for nonresident plaintiffs, such as those contained in CPLR 8501 (a) and 8503, may comply with the Privileges and Immunities Clause “even though [they] may not be technically and precisely the same in extent as those accorded to resident citizens”.
The Court of Appeals also held that the security for costs provisions do not violate the Privileges and Immunities Clause because nonresidents are provided reasonable and adequate access to the New York courts, guided by several decisions from the Supreme Court which cited security for costs provisions as an example of statutes that did not violate the Privileges and Immunities Clause.
For those reasons the Court of Appeals, concluded that sections 8501 (a) and 8503 did not unduly burden nonresidents’ fundamental right to access the courts because they imposed marginal, recoverable security for costs on only those nonresident plaintiffs who do not qualify for poor persons’ status pursuant to CPLR 1101, or fit any other statutory exemption. Where these nonresident plaintiffs do not prevail in their litigation, they must pay the same costs required of non-prevailing residents, but are simply required to post the security applied to those costs at an earlier date. Conversely, should nonresident plaintiffs prevail, their security is refunded, with any accrued interest. Even if, as plaintiff contended, this provided resident litigants with “some detectable litigation advantage”, the Court of Appeals held that imposing a “relatively minor hardship” on a limited class of nonresident plaintiffs is not enough to constitute an impermissible burden, such that nonresident plaintiffs do not have reasonable and adequate access to the courts.
Matter of Haug v. State Univ. of N.Y. at Potsdam, 2018 NY Slip Op 06964 (October 18, 2018)
What is the standard of review in an Article 78 proceeding to determine a student’s challenge to his university’s determination that he violated its code of student conduct? Answer: The administrative bodies determination will be affirmed if it is supported by substantial evidence, which is a minimal standard.
The Appellate Division granted petitioner’s challenge, to the University’s determination that he violated the code of student conduct, on the basis that the determination was not supported by substantial evidence.
Courts must accord deference to the findings of the administrative decision-maker because “neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence”.
The Court described the substantial evidence standard as a minimal standard, i.e., less than a preponderance of the evidence. The standard “demands only that a given inference is reasonable and plausible, not necessarily the most probable”. Substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”. Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently.
The Court noted that “[o]ften there is substantial evidence on both sides of an issue disputed before an administrative agency”. Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions. Moreover, hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds.
The Court determined that the hearsay evidence and petitioner’s testimony provided substantial evidence in support of the finding that he violated the code of conduct. Ultimately, it was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations. The Appellate Division improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those of respondents.
Ferrara v. Peaches Café LLC, 2018 NY Slip Op 07925 (November 20, 2018)
For purposes of the Lien Law, is express or direct consent of the landlord to the improvements required or may such consent be properly inferred from the terms of a lease? Answer: Consent may be inferred and there need not have been any direct contact between the lienor and the landlord.
COR leased space in a retail shopping plaza to Peaches Café, LLC to build and operate a full-service restaurant. The ten-year lease agreement and attached Retail Construction Exhibit imposed several specific requirements on Peaches regarding the electrical work involved in the construction of the restaurant, and submit to COR a certificate of completion certifying that the premises were constructed in accordance with the approved plans. The lease anticipated that Peaches would substantially complete the required work within 90 days, and provided that Peaches’ obligation to pay rent would commence at the end of the 90-day period, even were the work unfinished.
The lease also provided that any improvements made to the “vanilla box” space would become part of the realty at the end of the lease. The lease obligated Peaches to keep its restaurant open for business on all days except for holidays and to have certain specified minimum hours. The lease further provided that Peaches’ failure to so comply would constitute a default, entitling COR to terminate the lease, retain the improvements and recover the balance of the rent due through the end of the lease term. The lease also outlined detailed requirements for the electrical work that was the subject of the challenged lien. And the lease required Peaches to retain competent professionals, subject to COR’s approval, to provide design plans.
Peaches contracted with Ferrara to perform the electrical build-out work, which Ferrara satisfactorily completed. Peaches opened for business but subsequently closed, still owing Ferrara more than $50,000. Ferrara filed a mechanic’s lien against the property, noticing both Peaches and COR. Ferrara eventually initiated an action seeking to foreclose on the lien.
On cross motions for summary judgment, Supreme Court dismissed the complaint with prejudice insofar as asserted against COR. The Appellate Division unanimously reversed the order and granted Ferrara’s motion, concluding that “consent for purposes of Lien Law § 3 may be inferred from the terms of the lease”[.]
COR argued that the Appellate Division erred because, as a matter of law, a contractor working for a tenant may not place a lien on a landlord’s property unless the landlord has “expressly” or “directly” consented to the performance of the work, which COR says it did not do. The Court of Appeals rejected that argument because its precedents established that the Lien Law did not require any direct relationship between the property owner and the contractor for the contractor to be able to enforce a lien against the property owner.
Lien Law § 3 provides:
A contractor, subcontractor, laborer, [or] materialman,…who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of [the owner’s] agent…shall have a lien for the principal and interest, of the value, or the agreed price, of such labor…from the time of filing a notice of such lien.
The “impetus” behind the law is to provide “protection to those who furnish work, labor and services or provide materials for the improvement of real property”. Accordingly, the law “is to be construed liberally to secure the beneficial interests and purposes thereof”.
To enforce a lien under Lien Law § 3, a contractor performing work for a tenant need not have any direct relationship with the property owner. Instead, “[t]o fall within that provision the owner must either be an affirmative factor in procuring the improvement to be made, or having possession and control of the premises assent to the improvement in the expectation that he will reap the benefit of it”. The owner’s consent or requirement that the improvement be made, rather than mere passive acquiescence in or knowledge of improvements being made, is contemplated by the statute.
No material facts were in dispute. The language of the lease agreement not only expressly authorized Peaches to undertake the electrical work, but also required it to do so to effectuate the purpose of the lease for Peaches to open the restaurant for business and operate it continuously, seven days a week, during hours specified by COR. Furthermore, the detailed language made clear that COR was to retain close supervision over the work and authorized it to exercise at least some direction over the work by reviewing, commenting on, revising, and granting ultimate approval for the design drawings related to the electrical work. Thus, the terms of the lease agreement between COR and Peaches, taken together, are sufficient to establish COR’s consent under Lien Law § 3.
People v. Hakes, 2018 NY Slip Op 08538 (December 13, 2018)
Whether, as a condition of probation, sentencing courts can require a defendant to pay for a Secure Continuous Remote Alcohol Monitoring (“SCRAM”) bracelet that measures their alcohol intake. Answer: Yes, when the defendant has the ability to do so.
Penal Law § 65.10 (4) authorized sentencing courts to require defendants to wear an electronic monitoring device. Similar to other statutorily-authorized conditions of probation that implicitly require defendants to pay certain costs, the costs associated with wearing a functioning SCRAM bracelet are part and parcel of satisfaction of the condition itself. However, if a defendant demonstrates—either when the sentence is imposed or during the probationary period—that they cannot afford the costs despite bona fide efforts to do so, the sentencing court must attempt to fashion a reasonable alternative to incarceration. Conversely, if a defendant willfully refuses to pay when able to do so, a sentencing court is justified in revoking the defendant’s probationary sentence and imposing incarceration.
Brian Hakes pleaded guilty to driving while intoxicated and aggravated unlicensed operation of a motor vehicle. County Court sentenced Hakes to six months’ incarceration, concurrent with five years’ probation. As a condition of his probation, the court required Hakes to wear and pay for a SCRAM bracelet upon his release from jail. Hakes made several payments for the SCRAM bracelet, but then stopped, resulting in the bracelet’s removal by the monitoring company. Hakes claimed that an injury interfered with his ability to earn the income necessary to pay the monitoring fee. After a hearing, County Court revoked his probation because he had violated a condition of his probation by no longer wearing the SCRAM bracelet and imposed a state prison term.
The Appellate Division held that the sentence imposed was illegal because sentencing courts cannot require a defendant to pay for the cost of electronic monitoring.
In 1996 the Legislature authorized a sentencing court to require “the defendant to submit to the use of an electronic monitoring device . . . where the court, in its discretion, determines that . . . such condition will advance public safety, probationer control or probationer surveillance”. The Legislature commented that “[a] rational criminal justice system should insist that judges . . . be scrupulously concerned about public safety in making sentencing decisions[,] . . . particularly with respect to drunk driving, given its high recidivism rate and the awful carnage it causes”. The Legislature noted that when sentencing courts are “making the often difficult choice between imposing a sentence of probation or jail, the availability of electronic monitoring may be decisive”.
Hakes contended that while electronic monitoring may be permissible, the additional requirement of payment was a punitive measure that served no public safety or deterrent goal. If Hakes were correct, the Legislature only meant to authorize electronic monitoring if the costs were borne by the State. Nothing in the legislative history of Penal Law § 65.10 supported this assumption.
Payment is a part of the requirement that a defendant wear and maintain a functioning SCRAM bracelet. To the extent the costs associated with electronic monitoring could be considered to have a punitive or deterrent effect, that effect is trumped by the explicit goals of protecting the public from alcohol-related offenses while assisting a defendant’s rehabilitation during their probationary term. Holding 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. Thus, the requirement that Hakes wear and pay for a SCRAM bracelet was well within County Court’s statutory authority under Penal Law § 65.10 (4).
Requiring a defendant to wear and pay for an electronic monitoring device may not 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. If, at the imposition of the sentence or during the course of probation, a defendant asserts that they are unable to meet the financial obligations of a certain condition, the sentencing court must hold a hearing giving the defendant the opportunity to be heard in person and present evidence establishing that he made sufficient bona fide efforts to pay. If 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”[.]
The Appellate Division never reviewed Hakes’ challenges to the finding that he was in willful violation of a condition of his probation. Accordingly, the order of the Appellate Division was reversed, and the case was remitted for determination of the facts and issues raised, but not determined on appeal to that court.
People v. Suazo, 2018 NY Slip Op 08056 (November 27, 2018)
Is a non-citizen defendant who demonstrates that a charged crime carries the potential penalty of deportation entitled to a jury trial under the Sixth Amendment? Answer: Yes.
Saylor Suazo was charged with assault, unlawful imprisonment, criminal obstruction of breathing, endangering the welfare of a child, menacing, and harassment. The defendant grabbed the mother of his children, threw her to the floor, placed his hands around her neck obstructing her breathing, and then struck her numerous times with his fist.
At the start of trial, the People moved to reduce the class A misdemeanor charges to attempt crimes. As reduced, the misdemeanors were punishable by a maximum authorized sentence of three months in jail. As the action was commenced in New York City, the offenses were triable without a jury pursuant to Criminal Procedure Law 340.40 which eliminated his right to a jury trial. The court rejected defendant’s argument in opposition to the reduction which eliminated his right to a jury trial, granted the People’s motion, and commenced the bench trial.
Defendant submitted a written motion asserting his right to a jury trial. He asserted that he was a noncitizen charged with deportable offenses, and that the possibility of deportation upon conviction rendered the misdemeanors sufficiently serious to mandate a jury trial under the Sixth Amendment.
The People did not dispute that defendant was a noncitizen or that the charges against him included deportable offenses. The People opposed defendant’s motion on the sole ground that deportation was a collateral consequence arising out of federal law that does not constitute a criminal penalty for purposes of the Sixth Amendment right to a jury trial.
Following a bench trial, Supreme Court found defendant guilty, inter alia, of attempted assault, attempted criminal obstruction of breathing, menacing, and attempted criminal contempt. The Appellate Division affirmed the judgment and held that deportation was a collateral consequence of conviction and, as such, did not trigger the Sixth Amendment guarantee of a jury trial.
The Sixth Amendment of the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” The constitutional guarantee of the right to a jury trial “reflect[s] a profound judgment about the way in which law should be enforced and justice administered”. The mandate embodies “a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges,” and an “insistence upon community participation in the determination of guilt or innocence” due to fears of unchecked power.
Although the Federal Constitution speaks in absolute terms, it is well settled that the right to a jury trial “does not extend to every criminal proceeding”. “At the time of the adoption of the Constitution there were numerous offenses, commonly described as petty,’ which were tried summarily without a jury”. Thus, while the Sixth Amendment “requires that defendants accused of serious crimes be afforded the right to trial by jury, so-called petty offenses’ may be tried without a jury”.
The Supreme Court’s has instructed that the maximum potential penalty for a particular offense, especially incarceration, must be the crux of the analysis as to whether a right to a jury trial exists. In that regard, the Supreme Court has articulated at least one clear rule based on the potential length of incarceration—namely, “no offense can be deemed petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized” because the possibility of such a penalty being imposed is “sufficiently severe by itself to take the offense out of the category of petty’” and place it within the scope of the Sixth Amendment’s jury trial protections.
Thus, “a defendant is entitled to a jury trial whenever the offense charged carries a maximum authorized prison term of greater than six months”. Conversely, for offenses punishable by six months’ imprisonment or less, the Court has concluded that “the disadvantages of such a sentence, onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications’”.
Despite the significance placed on the maximum authorized length of incarceration, the Supreme Court has clarified that the term “penalty,” as relevant to the Sixth Amendment jury trial analysis, “do[es] not refer solely to the maximum prison term authorized for a particular offense”. “A legislature’s view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense”. Thus, courts must “examine whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial’”.
CPL 340.40 gives defendants charged with any misdemeanor the right to a jury trial in the entire state except in New York City. In New York City, if the maximum term of imprisonment is six months or less, the case must be tried non jury.
The misdemeanors originally charged carried an authorized maximum penalty of one year of imprisonment, both the Sixth Amendment and CPL 340.40 guarantee a jury trial to all defendants charged with such crimes. Further, if prosecuted outside New York City, defendants facing any misdemeanor charges are entitled to a jury trial pursuant to CPL 340.40. However, if prosecuted in New York City criminal court, defendants charged with only crimes subject to a maximum term of six months’ imprisonment or less are not statutorily entitled to a jury trial.
Defendant argued that, although the Sixth Amendment right to a jury trial did not automatically attach to the crimes with which he was charged because they were punishable by less than a six-month term of incarceration, he met his burden of establishing that the crimes carried an additional penalty beyond incarceration—namely, deportation—which he contended was a sufficiently severe penalty to rebut the presumption that the crimes were petty for Sixth Amendment purposes. The Court of Appeals agreed.
Under federal immigration law, a noncitizen may be deported, or forcibly removed from the country, if convicted of a variety of crimes, including “[c]rimes of domestic violence, stalking, or violation of [a] protection order, [and] crimes against children”. In the event of a noncitizen’s conviction of such an offense, “removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses”.
The deportation process generally involves detention by federal immigration authorities until administrative or judicial review prompts either release or deportation. Detention—which closely resembles criminal incarceration—may last months or years. A noncitizen who is adjudicated deportable may first face additional detention, followed by the often-greater toll of separation from friends, family, home, and livelihood by actual forced removal from the country and return to a land to which that person may have no significant ties.
The People argued that, notwithstanding the profound impact of deportation, removal from the country is not a criminal penalty of a conviction, but merely a civil collateral consequence, which should not be considered a penalty for Sixth Amendment purposes. The People further asserted that, in any event, deportation cannot obligate a New York court to furnish a jury trial to a defendant charged with a class B misdemeanor crime because it is a consequence imposed as a matter of federal law and, therefore, does not reflect the New York State Legislature’s judgment concerning the seriousness of an offense.
Although the People were correct that deportation is technically a civil collateral consequence of a state conviction, the Supreme Court explained in 2010 that “deportation is nevertheless intimately related to the criminal process” and “it [is] most difficult to divorce the penalty from the conviction in the deportation context”. This is because “[o]ur law has enmeshed criminal convictions and the penalty of deportation for nearly a century” and, “deportation or removal is virtually inevitable for a vast number of noncitizens convicted of crimes”. Deportation “has punitive qualities not entirely unlike the core components of a criminal sentence,” and that it is “a virtually automatic result of a New York felony conviction for nearly every noncitizen defendant”. For those reasons, the Court of Appeals acknowledged that “deportation [can]not be neatly confined to the realm of civil matters unrelated to a defendant’s conviction”.
Even if deportation was technically collateral, the Court of Appeals found that it was undoubtedly a severe statutory penalty that flowed from the federal government as the result of a state criminal conviction. Constitutional principles of due process already required courts to inform a defendant pleading to a felony charge that, if a noncitizen, the defendant may be deported as a result of the plea. Similarly, the Supreme Court has extended the constitutional right to the effective assistance of counsel to encompass advice regarding the deportation consequences of a criminal conviction.
It was not fatal to defendant’s claim that the penalty of deportation was imposed as a matter of federal, rather than state, law. The salient fact was that a legislative body authorized to attach a penalty to a state conviction has determined that the crime warrants the onerous penalty of deportation. Federal deportation almost invariably flows from certain state court convictions. The Court of Appeals saw no persuasive reason to exclude it from the constitutional inquiry of whether the penalties of a crime are severe enough to warrant extending the protections of a jury trial.
Defendant asserted that the crimes with which he was charged included deportable offenses and that, as a noncitizen, a resulting conviction would render him deportable. The People did not challenge either of these assertions. Defendant was correct that at least one of the charges lodged against him—criminal obstruction of breathing – qualified as a deportable offense. There was sufficient authority from which the Court of Appeals concluded that criminal obstruction of breathing was a crime of violence as it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another”. Further, federal case law indicated that conviction of this crime, under these circumstances, would render a noncitizen deportable.
The record established that defendant, a noncitizen, was charged with a crime carrying the penalty of deportation, rendering the offense a serious one, and the trial court’s refusal to grant defendant’s request for a jury trial violated his Sixth Amendment right.
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Judge Garcia dissented: In his view, the possibility that conviction may lead to deportation did not transform an otherwise “petty” offense into a “serious” one for purposes of the right to a jury trial under the Sixth Amendment. Federal immigration law should not override the New York State Legislature’s view of the seriousness of the charged offense, as expressed by the maximum penalty authorized.
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Judge Wilson also dissented: The majority’s opinion proceeded on seven steps: (1) the Sixth Amendment to the United States Constitution guarantees a jury trial for all offenses that are “serious” rather than “petty”; (2) “seriousness” is measured by the severity of the penalty associated with the offense; (3) the penalty to be considered is not limited to the term of incarceration, but encompasses other governmentally-imposed consequences; (4) deportation is such a penalty; (5) deportation is severe; (6) even though deportation is technically civil, it is difficult to classify as civil or criminal; and (7) even though the penalty of deportation is imposed by the federal government, not the state government under whose laws the defendant is being prosecuted, it is nevertheless equally cognizable.
That construct ignored or obscured one problem: the penalty for violation of United States immigration laws includes deportation, and deportation proceedings have never been deemed to entitle a noncitizen to anything more than an administrative hearing — certainly not a jury trial.
Thus, under the majority’s decision, an undocumented alien may be deported by an administrative proceeding in front of an immigration judge, who is an employee of the Department of Justice, but if that same undocumented alien commits an act of domestic violence, the prospect that an immigration judge will subsequently deport him entitles him to a jury trial. Thus, if the severity of deportation entitles one to a jury trial under the Sixth Amendment, the entire federal system of removal of undocumented aliens is unconstitutional. If so, according to Judge Wilson, more than a century of United States Supreme Court decisions must be discarded.
Matter of New York Civ. Liberties Union v. New York City Police Dept., 2018 NY Slip Op 08423 (December 11, 2018)
Was the information from a police officer’s personnel records confidential and exempt from disclosure pursuant to a FOIL request? Answer: Yes.
The FOIL dispute concerns documents generated in connection with NYPD disciplinary proceedings that arise out of allegations referred to the NYPD by the New York City Civilian Complaint Review Board (CCRB). The Court issued four different opinions – the majority opinion, a concurrence and two separate dissents – in deciding the issue before it.
The CCRB is empowered to receive and investigate allegations of misconduct against NYPD officers. The CCRB investigates civilian complaints and submits its findings and recommendations to the NYPD Commissioner. If the CCRB “substantiates” a complaint against an officer, it may refer the case to the NYPD for formal disciplinary action.
The NYCLU submitted a FOIL request to the NYPD seeking (1) “[c]opies of all final opinions, dated from January 1, 2001 to present, from the department trial room (Deputy Commissioner of Trials) adjudicating charges and specifications arising out of cases in which the CCRB has substantiated charges against a member of the department,” and (2) “[c]opies of documents identifying the formal and final discipline imposed in conjunction with each decision.”
The NYPD denied the request based on Public Officers Law § 87 (2) (a), which provides an exception for records that are “specifically exempted from disclosure by state or federal statute.” The NYPD asserted that the records were protected by Civil Rights Law § 50-a since they “are used to evaluate the continued employment of police officers by the NYPD.”
The NYCLU administratively appealed. The NYPD produced Disposition of Charges forms with redactions intended to conceal the identifying information of the subject officers and complainants. With respect to the “final opinions”—the approved Report and Recommendation documents—the NYPD denied the appeal, again concluding that the documents were exempt from disclosure by Civil Rights Law § 50-a.
The NYCLU then commenced a CPLR Article 78 proceeding, seeking disclosure of the withheld NYPD disciplinary records. Supreme Court denied the NYPD’s subsequent motion to dismiss and directed the NYPD to “select five decisions at random, and redact them to remove anything to identify the subject of the complaint.” Supreme Court further ordered the NYPD to notify the subject officers of the proceeding and the proposed redactions pursuant to the procedure in Civil Rights Law § 50-a.
Pursuant to Supreme Court’s order, the NYPD selected five decisions, applied redactions, and submitted the redacted documents to Supreme Court for in camera review. The NYPD and the five officers answered the NYCLU’s petition, contending that disclosure of the documents, even in redacted form, was prohibited by Civil Rights Law § 50-a. Supreme Court subsequently “deem[ed] the redactions adequate” and ordered that “[a]ll future requests are to be done as the five in camera submissions.”
The Appellate Division unanimously reversed and dismissed the proceeding. The Court determined that the NYPD could not be ordered to disclose redacted versions of the disciplinary decisions.
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.
Civil Rights Law § 50-a provides that “[a]ll personnel records used to evaluate performance toward continued employment or promotion . . . shall be considered confidential and not subject to inspection or review.” The statute contains only two exceptions to confidentiality: officer consent, and court authorization…The laws set forth a procedure to obtain a court order of disclosure, and establish a number of procedural safeguards that must be observed before judicial authorization may be granted. Specifically, subdivision (2) provides that, “[p]rior to issuing” a court order authorizing the release of confidential personnel records, “the judge must review all such requests and give interested parties”—including the subject officer(s)—”the opportunity to be heard”. The court may not issue an order “without a clear showing of facts sufficient to warrant the judge to request records for review”. In addition, [the law] provides that, “[i]f, after such hearing, the judge concludes there is a sufficient basis” to request the records for review, “he shall sign an order requiring that the personnel records in question be sealed and sent directly to him”. The court must then “review the file and make a determination as to whether the records are relevant and material in the action before him”. If that standard is satisfied, “the court shall make those parts of the record found to be relevant and material available to the persons so requesting”.
The disciplinary decisions requested by the NYCLU were quintessential “personnel records” protected by Civil Rights Law § 50-a. The statute was designed to protect police officers from the use of such records “as a means for harassment and reprisals and for purposes of cross-examination by plaintiff’s counsel during litigation”. Civil Rights Law § 50-a “prevent[s] release of sensitive personnel records that could be used in litigation for the purpose of harassing or embarrassing” officers. “Documents pertaining to misconduct or rules violations” by an officer are “the very sort of record which, the legislative history reveals, was intended to be kept confidential”.
Contrary to the NYCLU’s claim, the protection afforded by Civil Rights Law § 50-a was not limited to the context of actual or potential litigation. Rather, the “legislative objective” of section 50-a extends “beyond precluding disclosure on behalf of defendants in pending litigation”; it seeks to prevent any “abusive exploitation of personally damaging information contained in officers’ personnel records”. Accordingly, the “decisive factor” in determining whether a personnel record is exempted from FOIL disclosure under Civil Rights Law § 50-a is “the potential use of the information,” rather than “the specific purpose of the particular individual requesting access,” or “whether the request was actually made in contemplation of litigation”. The documents in this case were “the very sort of record” presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law § 50-a.
Once it is implicated, Civil Rights Law § 50-a does not merely guarantee confidentiality in the abstract. Rather, the statute establishes specific procedural rights and mechanisms designed to implement its protective goals. In particular, while protection under Civil Rights Law § 50-a extends broadly, disclosure is “strictly limited” to specified contexts under the statute. The statutory language clearly provides that, before disclosure may be ordered, the court must determine that the requested records are “relevant and material in the action before [it],” and even then, it authorizes disclosure of only “those parts of the record found to be relevant and material” to the pending action [emphasis added]).
The Court rejected policy arguments advanced by the NYCLU and its amicus in favor of disclosure.
The alternative “redacted disclosure” regime proposed by the parties would eviscerate the Legislature’s mandate. Civil Rights Law § 50-a sets up a “legal process whereby the confidentiality of the records may be lifted by a court, but only after an in camera inspection and affording affected parties notice and an opportunity to be heard”. The parties’ proposal would, instead, enable an agency to circumvent the host of statutory protections belonging to covered officers by simply applying redactions that the agency, in its sole discretion, deems adequate. That scheme would transform Civil Rights Law § 50-a into an optional mechanism applicable only when (and if) the agency chooses to invoke it.
Importantly, the FOIL exemption, under Public Officers Law § 87 (2) (a), applies not only to section 50-a personnel records, but to all records covered by the various “state or federal statutes” that serve to protect the confidentiality of countless categories of individuals. FOIL’s statutory scheme separately makes clear that redacted disclosure cannot be compelled where, as here, an agency has met its burden of demonstrating that records are exempt from disclosure under Public Officers Law § 87 (2) (a). Here the requested records were exempt from disclosure under Public Officers Law § 87 (2) (a), which contains no statutory authorization for redaction. As such, redacted disclosure cannot be compelled.
The majority affirmed the order of the Appellate Division. The concurring opinion of Judge Stein asserted that the majority did not need to consider an alternative ground for affirmance and thus joined in only the statutory interpretation portion of the majority’s opinion. Judge Rivera’s dissent disagreed with the majority’s determination that Civil Rights Law 50-a allows disclosure of police officer’s employment records only when relevant to a particular lawsuit. Judge Rivera would have allowed redaction of identifying information. Judge Wilson dissented because there was no basis to withhold information that was already made public during the public hearings that form part of the CCRP process and thus redaction under FOIL would be appropriate.