ALBANY – A constitutional challenge to the imposition of New York state sales taxes on purchases from two of the nation’s largest online retailers, and, will be among the issues before the Court of Appeals in its February session.

Another matter on the 26-case calendar is whether a warrant issued to search a man’s home and electronics equipment was still valid after he had been convicted of possession of child pornography and sentenced to jail.

In the online retailer case, Amazon and Overstock moved separately to challenge the constitutionality of Tax Law §1101(b)(8)(vi), which was enacted in 2008 to require the out-of-state retailers to collect New York taxes on sales to state residents.

The amendment sought to capture the sales taxes where Amazon, Overstock and other retailers based outside New York used entities in the state to link to the retailers’ websites. The amendments specify that they apply to retailers using links to New York customers through the New York entities who receive commissions or referral fees on sales of $10,000 or more.

"Although Internet retailers with no physical presence in New York remain free from any duty to collect New York sales taxes, retailers who deliberately use New York residents to promote their products and solicit sales may no longer lure customers away from brick-and-mortar establishments with the offer of tax-free purchases," assistant New York Solicitor General Steven Wu argues in a brief in support of the tax.

Amazon and Overstock have each claimed in state courts—unsuccessfully so far—that the amendment violates the commerce, due process and equal protection clauses of the U.S. Constitution.

"The State ignores decades of United States Supreme Court and other precedent imposing due process limitations on statutory presumptions such as the one at issue here," contends Amazon’s brief from Gibson, Dunn & Crutcher. "The state also misconstrues the relevant Commerce Clause authorities by attempting to diminish the ‘substantial nexus’ requirement—a requirement that limits the state’s taxing reach to only those retailers who have an actual ‘physical presence’ in the State and whose in-state activity is ‘significantly associated’ with their ability to do business there."

Wu will counter tomorrow that retailers’ connections to New York pass muster under the federal constitution for taxing purposes.

"The dormant Commerce Clause permits a state to extend its taxing power to any entity that has only somewhat more than the slightest presence in the state," Wu’s brief says. "In-state solicitation has always satisfied that standard—even when out-of-state sellers have only one or a handful of sales representatives, let alone the thousands that the retailers have here."

The due process clause similarly permits a state "to enact presumptions for use in the civil context" as long as there is a "rational basis" for doing so. Wu argues that the New York tax law presents just such a presumption.

It is unclear precisely how much the tax, if imposed on and, would bring in. But Wu’s brief indicates that the state collected $250 million in the first three years the tax existed from retailers paying the tax.

Overstock suspended its agreements with all New York affiliates when the tax was imposed. Amazon did not, according to the briefs.

Randy Mastro of Gibson, Dunn & Crutcher will argue for Amazon; Daniel Connolly of Bracewell & Giuliani will appear for Overstock.

The cases are v. New York State Department of Taxation and Finance, 33, and v. New York State Department of Taxation and Finance, 34.

Did Warrant Expire?

In a case before the court on Feb. 12, People v. DeProspero, 44, the judges will consider whether a search warrant expires upon final disposition by a court of a criminal matter that prompted the warrant in the first place, or remains valid afterward.

The warrant was issued in May 2009 for authorities to look through the home of Stephen DeProspero of Rome for evidence of child pornography. Police found one image on his computer of a young girl having sexual contact with an adult, and he pleaded guilty to possessing a sexual performance by a child and was sentenced to six months in jail.

After sentencing in November 2009, DeProspero asked authorities to give him back the computer and two digital cameras seized from his home.

Before they were returned, however, a prosecutor asked state police to examine the equipment to make sure it did not contain any contraband. Authorities then discovered hundreds of pornographic images and a video of a disabled boy who lived at a group home where DeProspero worked having sexual contact with him.

After authorities denied his motion to suppress the evidence discovered during authorities’ second look at his electronic equipment, DeProspero pleaded guilty to predatory sexual contact against a child and was sentenced to 18 years in prison.

Utica attorney Frank Policelli will argue that the May 2009 search warrant had expired upon DeProspero’s conviction or definitely when he was sentenced later that year, and that authorities failed to get a valid new warrant before they took a fresh look at DeProspero’s video equipment in January 2010.

Oneida County District Attorney Scott McNamara will counter that an Appellate Division, Fourth Department, reached the proper conclusion when it ruled that neither the search warrant nor the Fourth Amendment set a specific time limit by which authorities had to examine the residence or property specified in the warrant (NYLJ, Nov. 22, 2011).

Effectiveness of Counsel

The effectiveness of defense counsel will be at issue today in People v. Nesbitt, 28, a case which split a panel of the Appellate Division, First Department, 3-2 (NYLJ, Nov. 8, 2011).

The Court of Appeals will consider arguments over the way Akieme Nesbitt’s attorney, Bryan Konoski, defended his client against attempted murder and first-degree assault charges. Konoski acknowledged in Manhattan Supreme Court outside the presence of jurors that the evidence that Nesbitt assaulted the victim was overwhelming and that the lawyer’s only hope of helping his client was to contest the attempted murder charge.

Konoski did not present an opening statement and in his summation, told jurors that there was "just not enough" evidence to convict Nesbitt of attempted murder and he urged jurors to "check off the box that says ‘Not Guilty.’"

Nesbitt was acquitted of attempted murder but convicted of first-degree assault and sentenced to 25 years to life.

The First Department upheld the assault conviction. A majority said the victim’s injuries were so severe that it made it highly unlikely Konoski would have had success arguing for jurors to consider the lesser included offense of second-degree assault.

But the dissent found that Konoski accomplished "little or nothing" through his focus on contesting the attempted murder charge and essentially conceding a conviction on the assault charges. Nesbitt’s acquittal for attempted murder did not lessen the 25-year-to-life sentence he got for assault, the dissenters pointed out.

David Klem of the Center for Appellate Litigation will argue for Nesbitt.

Assistant Manhattan District Attorney Patricia Curran will represent the prosecution.

Vulgar Messages to a Judge

On Feb. 13, the court will consider in People v. Adams, 47, whether Keith Adams received a fair trial on charges that he sent vulgar text messages in 2009 to Maija Dixon, a Rochester City Court judge with whom he had a brief intimate relationship.

All of Dixon’s fellow City Court judges recused themselves from the case, as did the Monroe County public defender. A judge from Wayne County was ultimately brought in to preside over a jury trial in which Adams was convicted of second-degree aggravated harassment and sentenced to time served and a one-year conditional discharge with an order of protection.

Adams contends that the Monroe County district attorney’s office should have been precluded from prosecuting the case because its presence represented an inherent conflict of interest. He also argues that the prosecution’s bias prevented the district attorney’s office from offering him a plea to a reduced charge.

Assistant Monroe County public defender David Juergens will argue on behalf of Adams before the Court of Appeals.

Assistant Monroe County District Attorney Leslie Swift will appear for the prosecution.

The court is expected to hand down decisions in March on the cases it hears in the February session.