State of New York Court of Appeals

To be argued Thursday, April 26, 2012 No. 135 Cohen v Cuomo

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

The petitioners in this special proceeding are challenging the constitutional validity of legislation reapportioning State Senate districts based on the 2010 federal census (Chapter 16 of the Laws of 2012), which increases the size of the Senate from 62 seats to 63. The petitioners, Senator Martin Malav Dilan (D-Brooklyn) and ten individual citizens, contend the statute was enacted in violation of article III, section 4 of the State Constitution, which provides a mathematical formula for determining the size of the Senate based on population growth since 1894 on a county by county basis. The section does not address situations where the populations of certain counties must be combined, as for Queens and Nassau Counties (because Nassau County was part of Queens in 1894) and for Richmond and Suffolk Counties (because they comprised a single Senate district in 1894). Two methods for combining counties have been used over the decades. In one, called "rounding down before combining," the current population of each county is divided by one-fiftieth of the state's population, the quotients are rounded down to the highest whole number and then combined to determine the number of Senate seats. In the other method, "combining before rounding down," the populations of the counties are added together, divided by one-fiftieth of the state's population, then rounded down to determine the number of seats. This year, the Legislature used both methods in the same reapportionment, rounding before combining for Nassau and Queens, and combining before rounding for Richmond and Suffolk. Consistent use of the roundingfirst method for all calculations would have left the Senate with 62 districts, while consistent use of the combining-first method would have increased the number of districts to 64. The petitioners claim the Senate's Republican majority "manipulated [the constitutional] formula by using two different counting methodologies in different parts of the state, for the first time in history, in order to create an additional district in the upstate region." Supreme Court upheld the redistricting statute, declaring that article III, section 4 "does not forbid New York from increasing the size of the ... Senate to 63 seats in 2012." The Court of Appeals did not reject either method of calculation in Matter of Schneider v Rockefeller (31 NY2d 420) and "recognized that the Legislature must be given 'some flexibility in working out the opaque intricacies of the constitutional formula for readjusting the size of the Senate,'" Supreme Court said. "Although this court finds disturbing the Legislature's use of one method for Queens and Nassau Counties and a different method for Richmond and Suffolk Counties, petitioners have not sustained their heavy burden of demonstrating beyond a reasonable doubt that the Legislature has acted unconstitutionally." The case was filed here as a direct appeal pursuant to CPLR 5601(b)(2). For appellants Cohen et al: Eric J. Hecker, Manhattan (212) 620-2600 For respondent Skelos: Michael A. Carvin, Washington, D.C. (202) 879-3939 For respondent Silver: C. Daniel Chill, Manhattan (212) 818-8800

State of New York Court of Appeals

To be argued Thursday, April 26, 2012 No. 69 Hussein v State of New York

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

The plaintiffs -- 32 parents of students in 11 small city school districts -- brought this declaratory judgment action in October 2008 to challenge the constitutionality of the State's system of funding public education. They allege that their children are being denied the opportunity to obtain a sound basic education, in violation of the Education Article of the State Constitution, because their school districts are substantially underfunded. The State moved to dismiss, arguing the claims are not ripe for review or are moot because they are based on data obtained before major school funding reforms were enacted in 2007 in response to Campaign for Fiscal Equity, Inc. v State of New York (8 NY3d 14 [2006]). The reforms, including the creation of a "foundation aid" formula, were meant to significantly increase funding for schools statewide, although implementation of the increases has been delayed by the State's budget problems. The State contends the action is premature because the effects of the reforms cannot yet be measured. Supreme Court denied the State's motion, saying its argument "stands the doctrine of ripeness on its head. Plaintiffs' complaint is based upon past and current actual conditions. Defendant in effect contends that a possible future contingency may render the action moot. Accepting such a position could preclude judicial review whenever a defendant takes any step, no matter how meager, to ameliorate the conditions giving rise to the litigation." It said the State "will certainly have an opportunity to establish that the funding levels are sufficient if and when the merits are reached." The Appellate Division, Third Department affirmed. Finding the claims are ripe, it said "the future event to which such claims relate -- the implementation of Foundation Aid and the increases in funding encompassed therein -- is controlled by defendant and is likely to occur.... Furthermore, if plaintiffs are successful in proving the allegations in their complaint that such funding will not remedy an existing unconstitutional deprivation of the opportunity to obtain a sound basic education, a judicial determination of their claims will have an immediate and practical effect on the rights and actions of the parties...." Finding the claims were not rendered moot by the 2007 reform legislation, the court said it is "possible ... that plaintiffs will successfully demonstrate ... that even the planned increases in aid are not sufficient to enable the school districts to provide a constitutionally-guaranteed sound basic education...." The State argues the suit should be dismissed. "The major funding and accountability reforms that the State enacted in 2007, and the other reforms it has initiated during this past decade, demonstrate that the Governor and the Legislature are making serious, good-faith efforts to improve the system of public education in New York, where education spending is already among the highest in the nation," it says. "Although the current economic downturn has delayed full implementation of the funding reforms, the Court should not allow lawsuits like this one to proceed before these funding and policy reforms have a chance to work and before they can be evaluated. Permitting this suit to go forward now will unduly enmesh the courts in difficult budgetary decisions regarding the allocation of scarce resources -- decisions that are committed by our Constitution to the Governor and the Legislature." For appellant State: Assistant Solicitor General Denise A. Hartman (518) 474-6697 For respondents Hussein et al: Terence J. Devine, Albany (518) 464-0640

State of New York Court of Appeals

To be argued Thursday, April 26, 2012 No. 96 Weiner v City of New York

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

Mark Weiner, an emergency medical technician (EMT) employed by the Fire Department of the City of New York, responded to a call reporting a person in need of assistance on the Reigelmann Boardwalk in Brooklyn in October 2007. As he was searching the boardwalk for the injured person, Weiner allegedly fell through a hole in a grate and was injured himself. He was awarded workers' compensation benefits for his injuries. He then brought this personal injury action against the City and its Department of Parks and Recreation, alleging that the City's failure to comply with various Administrative Code provisions caused his injuries and gave him a right of action under General Municipal Law 205-a, which permits firefighters to sue for line-of-duty injuries. He also asserted a claim for common-law negligence, alleging the City had been negligent in its ownership, operation and maintenance of the boardwalk. The City moved to dismiss the complaint on the ground it was barred by the exclusivity provision of the Workers' Compensation Law. It also contended that EMTs are not covered by section 205-a. Workers' Compensation Law 11 provides that an employer's liability under that statute "shall be exclusive and in place of any other liability whatsoever," while General Municipal Law 205-a states that the remedy it provides is "[i]n addition to any other right of action or recovery under any other provision of law." Supreme Court denied the City's motion to dismiss. It relied on the Appellate Division, Fourth Department's ruling in Lo Tempio v City of Buffalo (6 AD3d 1197 [2004]) that an EMT employed by the Buffalo Fire Department was not barred by the Workers' Compensation Law from suing his employer for line-of-duty injuries under General Municipal Law 205-a, which "by its terms grants the aforementioned right of recovery '[i]n addition to any other right of action or recovery under any other provision of law.'" The Fourth Department also held that fire department EMT's are covered by section 205-a, which states that it applies to "any officer, member, agent or employee of any fire department." The Appellate Division, Second Department reversed and dismissed Weiner's suit, expressly rejecting Lo Tempio and holding that the exclusivity provisions of the Workers' Compensation Law prevail. Both statutes "purport to override any other provision, and only one can be given effect," it said. "The exclusivity provision ... is central to the entire workers' compensation premise, and giving effect instead to the overriding language of the General Municipal Law would undermine that system. By contrast, the intended scope of General Municipal Law 205-a and 205-e is much more limited, seeking only to limit ... the judicially created firefighter's rule. Giving effect to the Workers' Compensation Law exclusivity provision would not significantly impinge on the more modest legislative goals" of those sections. It did not determine whether section 205-a applies to fire department EMTs. For appellant Weiner: Arnold E. DiJoseph, III, Manhattan (212) 344-7858 For respondent City: Assistant Corporation Counsel Julie Steiner (212) 788-1051

State of New York Court of Appeals

To be argued Thursday, April 26, 2012 No. 97 People v Jorge Pagan

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

(papers sealed)

Jorge Pagan pleaded guilty to criminal possession of a weapon in the third degree, admitting that he possessed a .22 caliber handgun during a verbal altercation in the Bronx, and in June 2008 he was sentenced to six months in jail and five years probation. About four months after the sentence was imposed, the New York City Department of Probation moved to enlarge the conditions of his probation (pursuant to CPL 410.20) to permit probation officers to search his home for weapons whenever they made a home visit. Supreme Court granted the modification, rejecting Pagan's argument that, absent his consent or reasonable cause to believe he had violated the terms of his probation, the warrantless searches would violate his Fourth Amendment rights. The Appellate Division, First Department affirmed the order permitting searches of his home in a 3-2 decision. The majority said, "CPL 410.20 gives a court the power to modify or enlarge the conditions of a sentence of probation. The statute does not require an evidentiary hearing or a finding of a violation of previously imposed conditions as a prerequisite to enlarging the conditions imposed at the time of sentence...." It also cited Penal Law 65.10, which authorizes a court to impose 14 specific conditions of probation as well as "any other conditions reasonably related to his rehabilitation" and "any other reasonable condition as the court shall determine to be necessary or appropriate to ameliorate the conduct which gave rise to the offense." The statutes are "in pari materia insofar as they both address the subject of probation" and must be construed together, it said. "Therefore, as a matter of statutory interpretation, the conditions of a sentence of probation may be enlarged pursuant to CPL 410.20, in keeping with the rehabilitative purposes of Penal Law 65.10." The dissenters argued that the order permitting warrantless searches was not authorized by any statute and "eviscerated whatever limited Fourth Amendment rights defendant retained." Neither CPL 410.20 nor Penal Law 65.10 specifically mention home searches, they said. CPL 410.50 (3) does authorize searches of probationers, but requires "reasonable cause to believe that the defendant has violated a condition of the sentence." They said, "If a probationer were legally subject to a warrantless search of his home without reasonable cause, there would be no need for" that statute. They said, "Just because Penal Law 65.10 allows for enlargement of the conditions of probation to advance public safety ... does not mean it authorizes a search where there is not even a suspicion of a violation. Nor does the language from CPL 410.20, stating that the conditions of probation may be enlarged 'at any time,' mean that a court, subsequent to sentencing, can impose a condition to allow for home searches without reasonable cause." For appellant Pagan: Steven Wasserman, Manhattan (212) 577-3387 For respondent: Assistant Corporation Counsel Karen Griffin (212) 788-1056

State of New York Court of Appeals

To be argued Thursday, April 26, 2012 No. 98 People v David Plunkett

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

(papers sealed)

David Plunkett was at a medical clinic in the Village of Ilion in October 2006, when two Ilion police officers responded to a staff complaint that a patient was causing a disturbance. Plunkett was calm when they arrived, but he was holding a bag of marijuana in his hand and they asked him to put it on the floor. He put the bag down, but when he stood back up he punched one of the officers and bit him on the finger as both officers struggled to subdue him. Plunkett then informed the officers that he suffers from AIDS. He was indicted on charges of aggravated assault upon a police officer (Penal Law 120.11) and two counts of second-degree assault. To be guilty of aggravated assault upon a police officer, a defendant must cause serious physical injury "by means of a deadly weapon or dangerous instrument." The prosecution's theory in this case was that Plunkett's saliva was a dangerous instrument, as defined in Penal Law 10.00(13). Plunkett moved to dismiss the charge on the ground that teeth and saliva cannot be considered dangerous instruments. He cited People v Owusu (93 NY2d 398), in which the Court of Appeals rejected an argument that the defendant's teeth were a dangerous instrument under Penal Law 10.00(13), holding that "an individual's body part does not constitute an instrument under the statute." Herkimer County Court denied the motion to dismiss, finding Plunkett's case was distinguishable from Owusu because the dangerous instrument was alleged to be his saliva, not his teeth. The definition of "dangerous instrument" includes "any ... substance ... which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." The court said, "It is the Defendant's saliva, infected with the AIDS virus, that is the substance that is a dangerous instrument and was administrated to the victim by intentionally biting him." After a jury was selected, Plunkett pleaded guilty to the three assault charges in exchange for a sentence of ten years in prison. The Appellate Division, Fourth Department affirmed. It said that, by pleading guilty, he forfeited his right to challenge any alleged trial court errors. Plunkett, citing Owusu, argues the aggravated assault conviction must be reversed because "the human body and its associated parts, in this case teeth and saliva, were not intended by the legislature to be included within the meaning of a deadly weapon or dangerous instrumentality under" Penal Law 10.00(13). He says a contrary ruling "would create a very slippery slope and open the door for enhanced prosecution of persons with many forms of illness, contagious disease or condition." He argues there is no scientific basis for treating his saliva as a dangerous instrument because "saliva from a person infected with HIV has never been shown to transmit the HIV virus." Plunklett also argues that he retained his right to appeal in his plea bargain. He cites the record of his plea allocution, in which County Court said, "Based upon discussions, you would not be waiving your right to appeal, and you would have your right to appeal, which is one of the things that you had requested as part of your plea." For appellant Plunkett: Audrey Baron Dunning, Ilion (315) 894-3143 For respondent: Herkimer County Asst. District Attorney Jeffrey S. Carpenter (315) 867-1155

State of New York Court of Appeals

To be argued Thursday, April 26, 2012 No. 99 People v Ramon Flores

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

(papers sealed)

A nine-year-old girl reported to an aunt, and then to police, that she had been sexually abused by Ramon Flores at her home in the City of Lockport in 2001. The district attorney presented her testimony to the grand jury in the form of a videotaped examination rather than in person, as authorized by CPL 190.32. Prosecutors gave defense counsel a stenographic transcript of the girl's grand jury testimony and allowed him to view the videotape at the district attorney's office, but did not give him a copy of the videotape. After a jury trial, at which the girl testified in person, Flores was convicted of rape, sexual abuse, sodomy and attempted sodomy, all in the first degree, and was sentenced to 20 years in prison. Flores argues on appeal, among other things, that the prosecution's failure to provide a copy of the girl's videotaped grand jury testimony violated Rosario and CPL 240.45, which states that "the prosecutor shall ... make available to the defendant: (a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony...." The Appellate Division, Fourth Department modified the judgment by vacating Flores' conviction on one count of attempted sodomy for insufficient proof, and otherwise affirmed. It said, "[D]efendant was not entitled to his own copy of the videotape of the victim's testimony that was presented to the grand jury, which counsel was afforded an opportunity to view.... Moreover, having reviewed the video, we conclude that it complies with the mandates of CPL 190.32." Flores says the statute "affords ... more than just 'an opportunity to view'" and argues that the Fourth Department's ruling "is directly contrary to CPL 240.45, People v Rosario ... and the holding in the Second Department case of People v Gaskins (171 AD2d 272)," which said the statute "expressly requires the People to make both the videotape examination and the transcribed minutes available to the defendant" and is not "satisfied by the production of the minutes alone." He says he was prejudiced by the prosecutor's failure to provide a copy because, with no physical evidence linking him to the crimes, the girl's trial testimony was crucial and that testimony "was wholly inconsistent with statements made to the interviewing Police Officer..., with the Bill of Particulars, and with the child's testimony as transcribed in the Grand Jury minutes." For appellant Flores: Anna Jost, Tonawanda (716) 695-2505 For respondent: Niagara County Assistant District Attorney Thomas H. Brandt (716) 439-7085

State of New York Court of Appeals

To be argued Thursday, April 26, 2012 No. 100 Matter of Smith v Tormey

Summaries of cases before the Court of Appeals are prepared by the Public Information Office for background purposes only. The summaries are based on briefs filed with the Court. For further information contact Gary Spencer at (518) 455-7711.

In September 2007, attorney Todd M. Smith began assisting in the defense of Stacey Castor in a complex murder case in Onondaga County Court at the request of her retained counsel, Charles Keller. At the time, Smith was not on any panel of the Onondaga County Bar Association Assigned Counsel Program (ACP), which provides indigent defense services. Castor exhausted her financial resources in pretrial proceedings and County Court appointed Keller as her assigned counsel in February 2008. Smith, who continued to assist Keller, was placed on the ACP panel for misdemeanors in November 2008. The murder case went to trial in January 2009 and Castor was convicted on February 5, 2009. Two weeks after the verdict, Smith was placed on the ACP panel for felonies. In March 2009, County Court assigned Smith to "continue to represent" Castor at county expense and made the appointment retroactive to February 2008. Smith sought payment from ACP for his services to Castor and submitted an affidavit of extraordinary circumstances seeking compensation in excess of the statutory maximum. ACP denied Smith's request because he was not assigned from an ACP panel. Smith moved in County Court for an order granting him fees in excess of the statutory limits. Onondaga County and ACP opposed the motion on the grounds that Smith was ineligible for appointment and that the court was required to appoint counsel pursuant to the rules of its assigned counsel plan. County Court granted Smith's motion and ordered ACP to pay him for services rendered from the time he was placed on the ACP misdemeanor panel. The County and ACP requested review of the order by Administrative Judge James C. Tormey pursuant to 22 NYCRR 127.2. The Administrative Judge granted their application, concluding that County Court had "no authority to award any fees to an attorney who [was] not appointed by the court prior to rendering the services, and who was not qualified by the accepted rules to handle a case such as this." Smith filed this article 78 proceeding to annul the determination. The Appellate Division, Fourth Department annulled the determination, holding that the Administrative Judge exceeded his authority under 22 NYCRR 127.2 in concluding that Smith was not properly appointed. It rejected the argument of the County and ACP that it lacked authority to review the administrative determination because "the determination directly implicated County Court's power to assign and compensate counsel pursuant to a plan or statute." On the merits, it said, "[U]nder the plain language of the rule, an Administrative Judge's authority is limited to modifying an excess compensation award if the amount awarded is determined to be an abuse of discretion." In this case, where the Administrative Judge determined County Court had "no authority to award any fees" to an attorney who was not qualified and was not appointed prior to rendering services, it said the "determination is outside the purview of 22 NYCRR 127.2(b)." It said the County and ACP should have commenced an article 78 proceeding if they sought to challenge Smith's appointment as assigned counsel. For appellants Onondaga County and ACP: Jonathan B. Fellows, Syracuse (315) 218-8000 For respondent Smith: Gary H. Collison, Liverpool (315) 701-5768