COURT OF APPEALS

 

ADMINISTRATIVE LAW/MUNICIPAL LAW

 

NYC Board of Health Exceeded Its Authority When It Promulgated the "Sugary Drinks Portion Cap Rule"

 

The Court of Appeals, in a full-fledged, extensive and detailed opinion by Judge Piggott, with a concurring opinion and an extensive dissenting opinion, determined the New York City Board of Health exceeded the scope of its regulatory authority when it adopted the "Surgary Drinks Portion Cap Rule" restricting the size of the containers in which sugary drinks are sold.  The court applied three of the four factors described in Boreali v Axelrod, 71 NY2d 1 (1987):

 

Any Boreali analysis should center on the theme that "it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends" (71 NY2d at 13). The focus must be on whether the challenged regulation attempts to resolve difficult social problems in this manner. That task, policy-making, is reserved to the legislative branch.  *  *  *

 

Here, instead of an outright ban on sugary beverages, the Board decided to reduce their consumption by the expedient of limiting maximum container size, thus making it less convenient for consumers to exceed recommended limits. The more cautious approach, however, does not save the Portion Cap Rule. By restricting portions, the Board necessarily chose between ends, including public health, the economic consequences associated with restricting profits by beverage companies and vendors, tax implications for small business owners, and personal autonomy with respect to the choices of New York City residents concerning what they consume. Most obviously, the Portion Cap Rule embodied a compromise that attempted to promote a healthy diet without significantly affecting the beverage industry. This necessarily implied a relative valuing of health considerations and economic ends, just as a complete prohibition of sugary beverages would have. Moreover, it involved more than simply balancing costs and benefits according to pre-existing guidelines; the value judgments entailed difficult and complex choices between broad policy goals — choices reserved to the legislative branch.  Matter of New York Coalition of Hispanic Chambers of Commerce v New York City Department of Health & Mental Hygiene, 2014 NY Slip Op 04804, Ct App 6-26-14

 

 

CIVIL PROCEDURE

 

New York's "Borrowing Statute" and "Savings Statute" Interpreted to Find a State Action Timely Filed Within Six Months of a Non-Merits Dismissal in Federal Court, Even Though the Suit Would Be Untimely in the Out-of-State Court Where the Claims Accrued

 

The Court of Appeals, in a full-fledged, extensive opinion by Judge Read, interpreted CPLR sections 202 and 205 to deem a New York state action timely.

 

This dramatic and long-running contest over control of a lucrative oil field in Western Siberia reduces at present to an open question of New York civil procedure involving the interplay of CPLR 202, New York's "borrowing" statute, and CPLR 205 (a), New York's "savings" statute. When a cause of action accrues outside New York and the plaintiff is a nonresident, section 202 "borrows" the statute of limitations of the jurisdiction where the claim arose, if shorter than New York's, to measure the lawsuit's timeliness. New York's "savings" statute, section 205 (a), allows a plaintiff to refile claims within six months of a timely prior action's termination for reasons other than the merits or a plaintiff's unwillingness to prosecute the claims in a diligent manner.

 

This appeal calls upon us to decide whether a nonresident plaintiff who filed a timely action in a New York federal court may refile claims arising from the same transaction in state court within six months of the federal action's non-merits termination, even though the suit would be untimely in the out-of-state jurisdiction where the claims accrued. We hold that such a lawsuit is not time-barred, and therefore reverse the Appellate Division.  Norex Petroleum Ltd v Blavatnik, 2014 NY Slip Op 04802, Ct App 6-26-14

 

 

CRIMINAL LAW

 

Permissive Inference Firearm Was Possessed With Intent to Use it Unlawfully Against Another Was Sufficient to Support Conviction In Spite of the Evidence the Firearm Discharged Accidentally

 

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, determined that the evidence was legally sufficient to support the defendant's conviction of possession of firearm with intent to use it unlawfully against another.  The only evidence with regard to intent was the defendant's explanation that he was showing his cousin the firearm and it discharged accidentally. The court held that the statutory permissive presumption of unlawful intent to use a firearm against another, if accepted by the jury, was enough. The court noted that there was no need to prove intent to use the firearm against defendant's cousin because it was enough for the jury to infer the intent to use the firearm against "another." The court explained how a permissive inference works as follows:

 

"A statutory presumption is a deduction or an inference which the trier of fact may draw from facts found or otherwise established during the course of the trial" ... . This evidentiary device "[is] a staple of our adversary system of factfinding," which often requires "the trier of fact to determine the existence of an element of the crime — that is, an 'ultimate' or 'elemental' fact — from the existence of one or more 'evidentiary' or 'basic' facts" ... . The presumption of unlawful intent under Penal Law § 265.15 (4), like all statutory presumptions in New York, is a permissive presumption ..., meaning that "[it] allows, but does not require, the trier of fact to accept the presumed fact, and does not shift to the defendant the burden of proof" ... .

 

The purpose of a statutory presumption is to allow a particular fact to be established by "inferential" proof ... . Before the presumption may apply, the People must establish beyond a reasonable doubt the predicate fact or facts "the statute requires be proved" ... . If the People succeed in this endeavor, they are entitled to rely on the presumption, which "forms part of the support for their prima facie case" against the defendant ... . The presumption may be rebutted by any evidence in the case; that is, evidence presented by the defendant or the People ... . Evidence rebutting the presumption will not "negate the existence of a prima facie case; rather it presents an alternate set of facts, or inferences from facts, to the jury. The jury then has the right to choose between the two versions" ... . In other words, the presumption "receives the same treatment that any other 'fact' so thoroughly controverted would receive" ... .  People v Galindo, 2014 NY Slip Op 04803, Ct App 5-26-14

 

 

CRIMINAL LAW/IMMIGRATION LAW

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US Supreme Court Ruling that Defense Counsel Must Inform Noncitizen Defendants of the Risk of Deportation Associated with a Guilty Plea Does Not Apply Retroactively in State Collateral Review

 

The Court of Appeals, in a full-fledged, detailed and extensive opinion by Judge Read, over two extensive dissenting opinions, determined that the Supreme Court's ruling in Padilla v Kentucky, 559 US 356, requiring that defense counsel inform noncitizen defendants of the risk of deportation associated with a guilty plea, does not apply retroactively to collateral review under state law:

 

The United States Supreme Court held in Padilla v Kentucky (559 US 356 [2010]) that the Sixth Amendment requires criminal defense counsel to advise their noncitizen clients about the risk of deportation arising from a guilty plea. The Court subsequently held in Chaidez v United States (568 US __, 133 S Ct 1103 [2013]) that Padilla did not apply retroactively in federal collateral review. The issue in this appeal is whether, pursuant to federal or state retroactivity principles, Padilla nonetheless applies retroactively in state court postconviction proceedings. ...[W]e hold that it does not... .  People v Baret, 2014 NY Slip Op 04872, Ct App 6-30-14

 

 

 

CRIMINAL LAW/EVIDENCE

 

In a Case Based Upon Defendant's Confession, Knowledge of a Civil Lawsuit Against One of the Interrogating Officers, Alleging the Extraction of a Forced Confession in an Unrelated Case, Can Not Be Imputed to the Prosecutor---Therefore the People Were Under No Obligation Under "Brady" to Provide the Defense with Information About the Civil Lawsuit

 

In a full-fledged opinion by Judge Abdus-Salaam, with two concurring opinions, the Court of Appeals determined the prosecutor was not obligated to learn about and reveal that an interrogating officer ((O'Leary) was the subject of a federal civil lawsuit alleging he extracted a forced confession in an unrelated case. The defendant in the instant case had confessed.  Evidence of the federal lawsuit may have been admissible to impeach the interrogating officer's testimony in defendant's trial. The opinion includes a detailed analysis of the prosecutor's "Brady" obligation to provide the defendant with evidence favorable to the defense.  The court held that evidence about the federal lawsuit could constitute impeachment evidence, meeting the first prong of the Brady test, but further determined knowledge of the civil suit could not be imputed to the prosecutor and, under the facts, introduction of the evidence would not have affected the outcome of the trial:

 

Brady proscribes "the suppression by the prosecution of evidence favorable to [the] accused . . . where the evidence is material either to guilt or to punishment" ... . "The Brady rule is based on the requirement of due process," and "[i]ts purpose is not to displace the adversary system as the primary means by which truth is uncovered," but to ensure that the accused receives a fair trial ... . The People, in their role as truth-seekers in criminal trials, have a "broad obligation to disclose exculpatory evidence," but a mere breach of this duty does not offend the defendant's due process rights unless all the "components of a true Brady violation" are established ... . To make out a successful Brady claim, "a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material ... .  * * *

 

... We are satisfied that, under the circumstances of this case, the People had no constructive knowledge of the civil allegations against O'Leary. The allegations did not arise out of O'Leary's investigation of defendant's case or his actions as part of the prosecution's team, nor were they directly related to defendant's murder prosecution. The federal lawsuit concerned O'Leary's alleged misconduct in an unrelated criminal case, and the allegations were, at most, collateral to defendant's prosecution to the extent they may have provided impeachment material. Accordingly, O'Leary's knowledge of his own alleged misconduct and the civil action against him could not be imputed to the People for Brady purposes ... . People v Garrett, 2014 NY Slip Op 04876, Ct App 6-30-14

 

 

CRIMINAL LAW/EVIDENCE

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Violation of Best Evidence Rule Deemed Harmless

 

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that any violation of the best evidence rule constituted harmless error.  The defendant was charged with grand larceny after receiving funds related to Mayor Bloomberg's campaign for services defendant did not provide.  The funds were held by a trust. To prove ownership of the funds, the People called the person who drafted the trust (Friday).  The defendant argued that the best evidence rule required that the trust document itself be placed in evidence.  Essentially, the Court of Appeals determined that by the time the objection to the failure of proof had been raised, ownership of the funds had already been proven with other evidence:

 

Defendant argues that Friday's testimony violated the best evidence rule and that without her testimony there was "a deficiency in [the People's] proof." The best evidence rule "requires the production of an original writing where its contents are in dispute and sought to be proven" ... . The rule protects against fraud, perjury, and inaccurate recollection by allowing the jury to judge a document by its own literal terms. * * *

 

Defendant's best evidence rule challenge is of no moment because by the time defendant finally raised his objection, Bloomberg and several other prosecution witnesses had already provided the testimony that tended to prove ownership. Defendant allowed the People to admit this evidence without objection. Nevertheless, defendant asks us to review the introduction of Friday's testimony for its prejudicial effect, but, in light of the other testimony concerning ownership, we cannot say that Friday's testimony was so prejudicial as to deny defendant a fair trial. Moreover, based on the trial record, there is no significant probability that the jury would have failed to convict, even without Friday's testimony or admission of the trust document ... .  People v Haggerty, 2014 NY Slip Op 04874, Ct App 6-30-14

 

 

ENVIRONMENTAL LAW/CONSTITUTIONAL LAW/ZONING/MUNICIPAL LAW

 

Local Zoning Ordinance Prohibiting Hydrofracking Is Not Preempted BY the State Oil, Gas and Solution Mining Law/Environmental Conservation Law

 

 

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a dissent, determined that state law (Oil, Gas and Solution Mining Law [OGSML]; specifically the "supersession clause" in Environmental Conservation Law [ECL] 23-0303) did not preempt local zoning ordinances prohibiting hydrofracking to extract gas and oil:

 

We are asked in these two appeals whether towns may ban oil and gas production activities, including hydrofracking, within municipal boundaries through the adoption of local zoning laws. We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law (OGSML) does not preempt the home rule authority vested in municipalities to regulate land use. * * *

 

... Article IX, the "home rule" provision of the New York Constitution, states that "every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law . . . except to the extent that the legislature shall restrict the adoption of such a local law" (NY Const, art IX, § 2 [c] [ii]). To implement this constitutional mandate, the State Legislature enacted the Municipal Home Rule Law, which empowers local governments to pass laws both for the "protection and enhancement of [their] physical and visual environment" (Municipal Home Rule Law § 10 [1] [ii] [a] [11]) and for the "government, protection, order, conduct, safety, health and well-being of persons or property therein" (Municipal Home Rule Law § 10 [1] [ii] [a] [12]). The Legislature likewise authorized towns to enact zoning laws for the purpose of fostering "the health, safety, morals, or the general welfare of the community" (Town Law § 261; see also Statute of Local Governments § 10 [6] [granting towns "the power to adopt, amend and repeal zoning regulations"]). As a fundamental precept, the Legislature has recognized that the local regulation of land use is "[a]mong the most significant powers and duties granted . . . to a town government" (Town Law § 272-a [1] [b]). * * *

 

...[A] town may not enact ordinances that conflict with the State Constitution or any general law (see Municipal Home Rule Law § 10 [1] [i], [ii]). Under the preemption doctrine, a local law promulgated under a municipality's home rule authority must yield to an inconsistent state law as a consequence of "the untrammeled primacy of the Legislature to act with respect to matters of State concern" ... . But we do not lightly presume preemption where the preeminent power of a locality to regulate land use is at stake. Rather, we will invalidate a zoning law only where there is a "clear expression of legislative intent to preempt local control over land use" ... . * * *

 

... [T]he plain language of ECL 23-0303 (2) does not support preemption with respect to the Towns' zoning laws. * * *

 

...[O]ur interpretation of the OGSML's supersession clause is consistent with the overarching statutory structure... . * * *

 

Nothing in the legislative history undermines our view that the supersession clause does not interfere with local zoning laws regulating the permissible and prohibited uses of municipal land. Matter of Wallach v Town of Dryden, 2014 NY Slip Op 04875, Ct App 6-30-14

 

 

 

RETIREMENT AND SOCIAL SECURITY LAW/MUNICIPAL LAW

 

NYC Not Required to Pay Any Portion of Tier 3 Employees' Statutory Pension Contribution

 

The Court of Appeals, in a full-fledged, detailed and extensive opinion by Judge Read, determined that New York City is not required to pay any portion of the employees' statutory pension contribution for tier 3 eployees of the New York City Police and Fire Departments:

 

...[W]e conclude that section 480 (b) [of the Retirement and Social Security Law] only encompasses temporary programs in place as of 1974 for tier 1 and 2 members of a public employee retirement system. Stated another way, section 480 (b) does not obligate a public employer to pay any portion of a tier 3 public employee's statutorily required pension contribution. Accordingly, the City has properly deducted 3% from the gross annual wages of its tier 3 police officers and firefighters as mandatory employee pension contributions. Lynch v City of New York, 2014 NY Slip Op 04873, Ct App 6-30-14