New York Legal Update

Resentencing Under The Drug Law Reform Act Does Not Apply To Conspiracy To Commit Drug Offenses

Under the Drug Law Reform Act (L 2004, ch 738, § 23) defendants convicted of certain drug offenses may move to be resentenced. Yesterday, the First Department in People v Anonymous, 2007 NY Slip Op 07069 held that this option to be resentenced does not apply to those convicted of conspiracy to commit drug offenses.

In that case, the defendant was convicted in 1997 of conspiracy in the first degree (Penal Law § 105.17), and the conspiracy related to class A drug felonies. The defendant moved be resentenced under the Drug Law Reform Act. The Supreme Court denied the motion, and the First Department affirmed finding that the Drug Law Reform Act was only available to those persons who were convicted of offenses defined in article 220 of the Penal Law. The Court stated that if the Legislature had intended to include conspiracy to commit drug offenses, it could have inserted the necessary language in the Drug Law Reform Act, and its failure to do so was presumed to be intentional.

Hofstra Hosts Ethics Conference: "Lawyering at the Edge"

On October 14-16 Hofstra Law School will hosts its 2007 Legal Ethics Conference, entitled, “Legal Ethics: Lawyering at the Edge.” Conference attendees can expect to hear from an impressive group of dynamic speakers in the field of ethics, as well as preeminent and high profile criminal defense and civil rights practitioners. Speakers will weigh in on controversial issues such as defending prisoners at Guantanamo, representing unpopular clients and causes, and curbing prosecutorial abuse. For Registration Brochure, Conference Schedule and Additional Information Click Here.

Inmates Not Entitled To Smokeless Tobacco

What's an inmate to do? Current regulations do not permit inmates in special housing units to have any tobacco products (see 7 NYCRR 302.2 [e]; 303.2, 303.3). Today the Third Department affirmed dismissal of such an inmate's article 78 petition challenging the denial of his grievance requesting smokeless tobacco (Matter of O'Keefe v Goord, 2007 NY Slip Op 07036). The Third Department found that the denial of the inmate's request for smokeless tobacco did not violate his constitutional rights, nor was the denial arbitrary and capricious.   

Liability Of Landowners When The Lights Go Out

What is the duty of a landowner to provide illumination when there is a blackout? The Second Department issued a somewhat confusing decision on this question last week in Solan v Great Neck Union Free School Dist., 2007 NY Slip Op 06861.

In that case, the plaintiff arrived at the parking lot of the Great Neck North High School minutes after a power failure had extinguished the lights illuminating the parking lot. Although the parking lot was in total darkness, the plaintiff observed some lights inside the school. The school board meeting which the plaintiff intended to attend had been moved to an auditorium which had lights powered by a generator. In attempting to cross the parking lot to enter the school, the plaintiff tripped and fell over a cement parking space divider, which she was unable to see because of the darkness, sustaining personal injuries.

In her action against the School, the plaintiff claimed that the School had a duty to supply backup power to the parking lot lights to ensure continued illumination of the lot during a power outage. A jury returned a verdict in favor of the plaintiff finding the School 90% at fault and the plaintiff 10% at fault. However, the trial court granted the school's verdict to set aside the verdict and dismissed the complaint.

The Second Department affirmed. It stated:

A landowner's duty to maintain its property in a reasonably safe condition in view of all the circumstances, including providing a safe means of ingress and egress, does not include a duty to have an uninterrupted power source for parking lot lights in the event of a power outage.

However, in the next sentence the Court went on to say:

The power outage did not relieve the defendant of its duty to address the dangerous condition created by the loss of power when the otherwise open and obvious cement divider was obscured from view by darkness.

I'm not sure how these two statements are consistent (unless the Court meant that the School was required to cure the dangerous condition by moving the cement dividers. But either the School had a duty to provide illumination or it didn't). In any event, the Court went on to hold that there was no valid line of reasoning nor permissible inferences to be drawn from the evidence which could lead a rational person to the conclusion that the School had a reasonable time to address the darkness in the parking lot in the matter of minutes between the power outage and the plaintiff's fall.

So presumably the School did have a duty to provide illumination to the parking lot but only after some period of time to address the issue. 

Of course the irony is that if the School was required to provide illumination to the parking lot at some point, this would most likely involve the use of portable generators along with their power cords strewn across the parking lot. Would this not increase the risk of tripping accidents significantly? Is it wise to require a duty that increases the risk of injury? Its a Blackout. How did we exist before electricity? What is more onerous - requiring the School to put up portable generators, or requiring pedestrians to walk a little more carefully, or perhaps carry a flashlight in their cars?  Thus, while I agree with the Court's result, I think it would have been better if the Court had just stuck with its statement that a landowner does not have a duty to provide an uninterrupted power source for parking lot lights in the event of a power outage. 

Attorney General Subpoenas Facebook

Attorney General Andrew Cuomo on Monday served Facebook with a subpoena after he said the company failed to respond to complaints about sexual predators and inappropriate content on the social network site. The Attorney General's Office has been testing Facebook's safety controls over the past several weeks. To test the site, the Attorney General's Office set up fake Facebook accounts for investigators who pretended to be between the ages of 12 and 14. Soon after setting up their profile pages, the investigators found that they were repeatedly solicited by adult sexual predators, and could easily access a wide range of pornographic images and videos. In addition, the investigators pretended to be concerned parents of the fake users and contacted Facebook to gauge whether the company would adequately respond to complaints. When undercover investigators lodged complaints with Facebook regarding the inappropriate - and illegal - solicitation of the underage users, Facebook in many instances ignored the complaints and took no action against the reported sexual predators. The Attorney General's Office made these complaints to Facebook posing both as underage users as well as parents of underage users.

Facebook, the Palo Alto, California company, has tried to position itself as a safer alternative to the more popular social network MySpace.

In his Press Release, Cuomo said, "My office is concerned that Facebook's promise of a safe website is not consistent with its performance in policing its site and responding to complaints. Parents have a right to know what their children will encounter on a website that is aggressively marketed as safe.”

In the subpoena, Cuomo has asked for complaints received by Facebook regarding inappropriate solicitation of underage users and inappropriate content on the site, as well as any responses by the website. The subpoena also calls for all Facebook policies on user safety and all representations made to consumers about the safety of the site.

In a statement issued on Monday, Facebook said it takes Mr. Cuomo’s concerns “very seriously.” “As our service continues to grow so does our responsibility to our users to empower them with the tools necessary to communicate efficiently and safely. We …are constantly working on processes and technologies that will further improve safety and user control on the site,” the company said in the statement.

Notice Of Pendency May Not Be Filed In Action For Specific Performance Of Warranty Provisions Of Condominium Offering Plan

CPLR 6501 provides that a Notice of Pendency may be filed in any action "in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property." Last Tuesday, in Board of Mgrs. of Woodpoint Plaza Condominium v Woodpoint Plaza, LLC, 2007 NY Slip Op 06818, the Second Department held that an action for specific performance of warranty provisions of a condominium offering plan is not such an action, and thus, a Notice of Pendency may not be filed in such an action. The Court simply noted that the courts have traditionally applied a narrow interpretation of CPLR 6501.

Ground Zero Worker's Petition To File Late Notice Of Claim Removed To Federal Court

The September 11th Victim Compensation Fund created a Federal cause of action for damages arising out of the September 11th attacks. The act which created the act also provided that this Federal cause of action would be the exclusive remedy for damages arising out of the attacks.

Last Thursday, the First Department held that even bringing a petition to file a late notice of claim against the City of New York must be brought in Federal courts not State Supreme Court - Matter of Felder v City of New York, 2007 NY Slip Op 06810

The petition was brought by a New York City Police Officer who assisted in rescue, recovery and removal operations at the Ground Zero World Trade Center(WTC) Site. By petition and proposed notice of claim dated August 26, 2005, the officer sought leave to file a late notice of claim against the City of New York for damages resulting from the officer's alleged respiratory injuries and other "long-term health issues" arising from toxic exposure at the WTC Site. The petition alleged that these WTC-related injuries did not become apparent to him or his physicians until about June 6, 2004. Although the petition acknowledged that the 90-day notice rule had not been complied with, the officer argued that the City was aware of the facts and circumstances underlying his claim well within the 90-day period.

The First Department held that the Supreme Court lacked subject matter jurisdiction to determine the petition. It stated that the federal statute completely pre-empted state-law causes of action, and a claim which came within the scope of that cause of action, even if pleaded in terms of state law, was in reality based on federal law. The Court thus removed the petitioner's claims for injuries to the United States District Court, Southern District of New York.

New York To Give Driver's Licenses To Illegal Aliens

Governor Spitzer and the Department of Motor Vehicles (DMV) Commissioner David Swarts yesterday announced a DMV policy change that will allow all New Yorkers the opportunity to apply for state driver licenses without regard to their immigration status. In addition, the Governor and Commissioner also announced plans to implement a new regime of anti-fraud measures to increase the security of the licensing system as this new population of drivers come into the system.

The DMV estimates that tens of thousands of undocumented, unlicensed and uninsured drivers are currently on New York’s roads, contributing to increased accidents and hit-and-runs as well as higher auto insurance rates. The implementation of the policy change will take place in two phases:

Phase 1 will begin immediately. Informational letters from DMV will be sent to the approximately 152,000 New Yorkers, who at one point had (or currently have) a New York State license, but are unable to renew it because of the previous administrative policy. DMV will notify these former and current license holders of the policy change and will begin the re-licensing process at the end of 2007. Those affected will still need to prove their identity, date of birth and fitness to drive before being issued a new license.

Phase 2 will begin six to eight months after Phase 1 and will open the application process to all New Yorkers.

Current State law requires license applicants to prove their identity, date of birth and fitness to drive, and to provide a social security number (SSN). The SSN requirement was added in 1995 as part of an effort to punish parents who were not paying child support. In 2002, a state regulation was adopted to allow applicants who are ineligible for a SSN to also apply for driver licenses. Following this step, the DMV then issued an administrative policy that effectively made it impossible for illegal immigrants to obtain driver licenses by stipulating that the only way to define “ineligibility” would be through obtaining a formal letter of ineligibility from the Social Security Administration, a letter that is only obtainable by individuals who have legal immigration status.

It is this last administrative policy that the DMV is changing. Starting in the phases discussed above, license applicants will check a box on the license application that states that the applicant is not eligible to receive a social security number. Instead of presenting a SSN or a letter of ineligibility, individuals instead will provide a current foreign passport and other valid and verifiable documents to prove identity.

In his Press Release the Governor called the new policy a "common sense change" that deals with a "practical reality that hundreds of thousands of undocumented immigrants live among us." The Governor went on to say:

After a comprehensive review, DMV has developed changes that will increase the security of our license system by obtaining better and more verifiable information from applicants, which will decrease the number of uninsured drivers on the roads, lower auto insurance rates for all drivers and, when necessary help law enforcement agencies in their investigations.

According to the Press Release, the benefits of this policy change will include:

• Safer Streets: In its report, “Unlicensed to Kill,” the AAA Foundation for Traffic Safety found that unlicensed drivers are almost five times more likely to be in a fatal crash than are validly licensed drivers.
• Lower Insurance Rates: The State Department of Insurance estimates that expanded license access will reduce the premium costs associated with uninsured motorist coverage by 34% which will save New York drivers $120 million each year. Other states with similar policies have seen their auto insurance rates drop as well.
• Safer Homeland: This policy change helps bolster homeland security by bringing more individuals into the system and, when necessary, assisting law enforcement efforts to locate those who present a real security threat.

As mentioned, the DMV will also adopt new anti-fraud measures to make the system more secure. It will utilize new state-of-the-art document verification technology, including photograph comparison tools and specially-trained staff with expertise in foreign-sourced identity documents, and a proposal to implement a residency requirement for all state license holders.

• The DMV’s secure “6-point ID requirement” will be based on an expanded list of valid and verifiable documents. Along with the other identity documents currently on the list, individuals’ identities will be verified using this new document verification technology to reduce the potential for fraud.
• The DMV has begun a pilot program to test photo comparison technology, which will prevent a person from obtaining more than one license under more than one name. Currently, 18 states use photo comparison technology as part of their fraud-protection system.
• The DMV will also train personnel in verifying foreign-sourced identity documents.
• Finally, as a further fraud-prevention measure, the DMV will propose to require a license applicant prove his or her New York State residency in order to be eligible for a state-issued license. Currently, 27 states have such residency requirements.

For a Video of an announcement of the policy change Click Here.

I have three questions or points about this change:

1. If auto insurance rates for New Yorkers do not fall appreciably, how likely is it that the DMV will revert back to the old policy?
2. How much confidence will you have in the personnel that the DMV will train in verifying foreign-sourced identity documents, and will there be enough trained personnel?
3. If illegal aliens will have valid driver's licenses, will you be able to use your New York driver's license as a form of ID for other purposes?

Department Of Corrections Proposes New Rules To Restrict Inmate Communications With Victims

On Wednesday (September 19th), the Department of Corrections proposed new rules to prohibit inmates from contacting their victims. Under the proposed rules, whenever a victim (or other members of the public) indicates that he/she does not want to receive any correspondence or telephone calls from an inmate, his/her name shall be placed on a Negative Correspondence and Telephone List for that inmate. The inmate shall then be prohibited from contacting persons on that List. The proposed rules also restrict inmates from making toll free calls and set time limits for telephone calls. The Department of Corrections will receive public comments on the proposed rules for 45 days (from September 19th).

The full text of the proposed rules can be found by Clicking Here and scrolling through pages 1-4.

Attorney General Cuomo and Mayor Bloomberg Sue Merck Over Vioxx

Attorney General Andrew M. Cuomo and New York City Mayor Michael Bloomberg today filed a joint lawsuit against Merck & Co., Inc., the maker of Vioxx, for misrepresenting the dangers the drug posed to its users. The lawsuit seeks damages and civil penalties in addition to restitution for tens of millions of taxpayer dollars wrongfully spent on Vioxx prescriptions. It marks the first time the State and City have brought a joint action to fight Medicaid fraud.

The civil suit was filed in State Supreme Court, New York County. It accuses Merck of deliberately suppressing and concealing information about the seriousness of the cardiovascular risks associated with Vioxx. The suit claims many of those prescriptions would never have been written had doctors been properly informed. Between 1999, when Vioxx was introduced, and 2004 when it was pulled from the market, Medicaid and the EPIC Program spent over $100 million on Vioxx prescriptions in New York State. For its residents receiving Medicaid assistance, New York City paid a substantial share of those costs.

Merck is accused of having caused New York doctors to prescribe Vioxx to patients whose cardiovascular conditions made them especially susceptible to the drug's negative effects. Had the doctors been adequately informed, the suit alleges, they would not have prescribed Vioxx and thus Medicaid and EPIC would not have paid for its dispensation.

This is the first case to be brought under New York State's recently-enacted False Claims Act. The Act and a similar law in the New York City Administrative Code allow the State and the City to seek treble damages for the amount Merck caused them to expend in the Medicaid and EPIC programs to pay for drugs prescribed under false pretenses, as well as civil penalties.

In a Press Release Attorney General Cuomo stated:

Today’s suit demonstrates an important new State and City partnership to fight Medicaid fraud, and I am happy to work with Mayor Bloomberg to help hold Merck accountable. Merck's irresponsible and duplicitous conduct endangered the health of New Yorkers and wasted our tax dollars. As alleged in the complaint, even as evidence was piling up showing just how dangerous this drug was, Merck put profits above all else and put thousands at risk by continuing to push Vioxx inappropriately on doctors and patients. We will hold accountable those who put our families at risk, and we will fight back when New Yorkers are harmed and fleeced.

Kent Jarrell, spokesperson for Merck outside counsel said, "We have not yet received the complaint but, as we previously disclosed, a handful of other states have previously sued for Medicaid reimbursement and we have been defending against those suits for some time."  (Market Watch).