Each year we resolve to bring you cases addressing novel questions and charting untrodden areas of the law. Thanks to the industrious and intrepid justices of the Appellate Division’s four departments, this is one New Year’s resolution, at least, that we can always keep. As we begin 2018, we look back on some of the highlights from the final quarter of 2017 below.
Unsealing Criminal Records. When is a District Attorney’s Office not a “law enforcement agency”? When it seeks to unseal criminal records from a proceeding that did not result in conviction for a third party’s use in a civil proceeding. So concluded the First Department in its unanimous opinion by Justice Barbara R. Kapnick in People v. F.B., 2017 N.Y. Slip Op. 07232 (1st Dep’t Oct. 17, 2017), where the records were sought to assist a landlord in an eviction proceeding under RPAPL 715(1) against a tenant whose “premises are used for any illegal trade, business or manufacture.”
After defendant was charged with two drug-related misdemeanors, the Bronx District Attorney’s Office (DA) demanded that defendant’s landlord commence an eviction proceeding against the tenants of defendant’s apartment. Defendant pleaded guilty to a non-criminal violation and agreed to a one-year conditional discharge. Supreme Court subsequently sealed the records pursuant to CPL 160.55, which permits “a law enforcement agency” to request the records be unsealed and “made available to it.” CPL 160.55 (1)(d)(ii). During the subsequent eviction trial, after the Housing Court granted defendant’s motion to strike the sealed records, the DA filed a successful motion to unseal in Supreme Court.
Recognizing this as “an issue of first impression in this Court,” the First Department reversed the unsealing order. Consistent with a Court of Appeals’ decision construing an analogous sealing provision (Matter of Katherine B. v. Cataldo, 5 N.Y.3d 196 (2005)), Justice Kapnick explained that CPL 160.55 must be construed strictly. In order to qualify as a “law enforcement agency,” “not only must the [DA] be acting in its investigatory capacity, but, also, it must be doing so before the commencement of a criminal proceeding.” Because the DA was seeking to unseal records for a third party’s use in a civil proceeding, the narrow exception for unsealing did not apply.
Impartial Jury. Does a juror’s failure to disclose that she applied for a job as Assistant District Attorney (ADA) at the same office prosecuting the defendant furnish grounds to vacate a conviction and order a new trial? In People v. Southall, 2017 N.Y. Slip Op. 08344 (1st Dep’t Nov. 28, 2017), the First Department answered in the affirmative.
A juror at defendant’s murder trial applied for a job as ADA two days after voir dire, but two days before she was sworn in as a trial juror. Defendant was convicted, and the juror was hired several months later. Eight months after sentencing, the prosecutor disclosed the juror’s employment history to the court and the defense. Defendant moved to vacate the conviction, but Supreme Court denied the motion because no bias had been shown on the part of the juror.
In a unanimous opinion authored by Presiding Justice Peter Tom, the First Department reversed. The juror’s “concealment of material information regarding her job application, which also demonstrated a predisposition in favor of the prosecution”—i.e., implied bias—deprived defendant of “an impartial jury.” The court acknowledged that the federal standard may be actual bias, but “such standard sets the floor and not the ceiling on protections under New York law.”
Fifth Amendment Takings Clause. When property restricted by wetlands regulations is taken in condemnation, is the owner entitled to just compensation based on the unrestricted value of the property? In In re New Creek Bluebelt, Phase 3, 2017 N.Y. Slip Op. 07994 (2d Dep’t Nov. 15, 2017), the Second Department held that such an owner is entitled to additional compensation, if the owner can show a reasonable probability of successfully challenging the restriction.
Claimant owned two lots designated as wetlands, which the City took as part of a storm water management project. In claimant’s proceeding for just compensation, Supreme Court found the value of the property as restricted to be $57,000, but awarded compensation of over $380,000 based on the reasonable probability that the owner would be able to challenge the wetlands restriction as an unconstitutional taking. The City appealed.
In a unanimous decision authored by Justice John M. Leventhal, the Second Department affirmed that the “reasonable probability incremental increase rule” may be applied in valuing regulated wetlands properties taken in condemnation. The court rejected the City’s reliance on Court of Appeals precedent generally barring a buyer of restricted property from bringing a takings claim. Such precedent must be read in light of the U.S. Supreme Court’s decision in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), which held that a state could not “put an expiration date on the Takings Clause” and transform an unconstitutional taking into a “background principle for subsequent owners” by “mere virtue of the passage of title.”
Family Court Act. Does a parent’s heightened due process right to a prompt hearing challenging an exclusion order when a child is temporarily removed from the home also apply when it is the parent that is removed from the child’s home? In Matter of Elizabeth C, 2017 N.Y. Slip Op. 08370 (2d Dep’t Nov. 29, 2017), the Second Department concluded that it did, finding that the same constitutionally protected parent-child relationship is implicated in each case.
Appellant was excluded from the home in which he, his wife and five children resided by a temporary order of protection issued by the Family Court as a result of allegations of derivative abuse. The Family Court denied appellant’s motion for a prompt hearing to challenge the exclusion on the ground that Family Court Act §1028 hearings are only appropriate where a child has been removed from the home.
In a unanimous opinion authored by Justice William F. Mastro, the court reversed, explaining that the Family Court’s approach “improperly elevates the physical location of the child over the interference with the constitutionally protected parent-child relationship as the determinative factor in assessing what process is due to the excluded parent.” Where no “imminent risk hearing” is held before excluding a parent, due process requires an expedited post-exclusion hearing.
Collateral Estoppel. May the People rely on the doctrine of collateral estoppel to dispense with presenting evidence to a grand jury of elements that it claims were established by a prior conviction? Noting that the Court of Appeals has left the use of collateral estoppel by the People an “open question,” the Third Department weighed in and held that collateral estoppel cannot trump a criminal defendant’s right to have a grand jury determine probable cause.
Defendant was indicted and convicted of attempted second degree murder. After the victim died, defendant was charged with murder. In obtaining the second indictment, the People did not present any evidence related to the circumstances of the shooting or the identity of the shooter. Instead, the People advised the grand jury that, as a matter of law, it had previously been determined that defendant shot the victim with the intent to cause his death. Defendant moved to dismiss the indictment on the grounds that the evidence was insufficient, and the County Court agreed.
The Third Department affirmed in People v. Morrison, 2017 N.Y. Slip Op. 08405 (3d Dep’t Nov. 30, 2017). Writing for the unanimous panel, Justice Robert C. Mulvey explained that an accused’s use of collateral estoppel protects constitutional rights—such as the right to not be placed in double jeopardy—whereas the People’s use of collateral estoppel “is for matters of expediency and economy and lacks a constitutional imperative.” To allow the “strategic, prosecutorial” use of collateral estoppel “to dispense with proof of the elements of a class A-1 felony,” the court explained, “undermines, if not violates, fundamental principles of due process and the presumption of innocence.”
CPLR. Does vacating a note of issue start the one-year clock after which inactive cases may be administratively dismissed under CPLR 3404? In Bradley v. Konakanchi, 2017 N.Y. Slip Op. 08125 (4th Dep’t Nov. 17, 2017), the Fourth Department sided with the First and Second Departments—and against the Third Department—in holding it did not.
Following discovery in a medical malpractice case, plaintiff filed a note of issue. Supreme Court granted defendant’s motion to vacate the note of issue and ordered additional discovery. When a year passed without plaintiff filing a new note of issue, defendant moved to have the case dismissed pursuant to CPLR 3404, which provides that a case “marked ‘off’ or struck from the calendar” and not restored within a year is “deemed abandoned and shall be dismissed without costs for neglect to prosecute.” Supreme Court denied the motion but noted, “appellate clarification on the breadth of Rule 3404 would be instructive.”
The Fourth Department heeded the request, and in a unanimous opinion by Justice Patrick H. NeMoyer held that a vacated note of issue does not result in a case being “marked off” or “struck” from the calendar. The court explained that CPLR 3404 only applies once a case is properly on the calendar. Vacating a note of issue merely places the case back in “pre-note-of-issue status.”
Leo Milonas is a litigation partner at Pillsbury Winthrop Shaw Pittman. He is a former Associate Justice of the Appellate Division, First Department, and the former Chief Administrative Judge of the State of New York. Andrew C. Smith is also a litigation partner at the firm. Senior associates Jay D. Dealy and Joshua I. Schlenger and associate Brian L. Beckerman assisted in the preparation of this column.