New York Law Review

Tag: Certification

  • Tunick v. Safir, 94 N.Y.2d 709 (2000): Court Declines to Answer Certified Question Due to Potential Mootness and Lack of State Constitutional Argument

    Tunick v. Safir, 94 N.Y.2d 709 (2000)

    New York’s Court of Appeals may decline to answer certified questions from a federal court when the issue may become moot during the certification process, especially if a key issue like a state constitutional question was not adequately raised by the parties.

    Summary

    The Second Circuit Court of Appeals certified three questions to the New York Court of Appeals regarding the legality of a planned nude photography shoot in public, specifically whether it constituted a form of “entertainment or performance” exempt from public lewdness laws and whether those laws violated the New York Constitution. The New York Court of Appeals declined to answer, citing concerns about potential mootness, as the photo shoot could occur while the certification process was ongoing. Further, the court noted that the parties had not adequately raised or briefed the state constitutional issue, making it inappropriate for the court to address it in the first instance.

    Facts

    Spencer Tunick planned a nude photography shoot involving 75 to 100 people on a public street in New York City. City officials threatened to arrest participants under New York’s public lewdness laws (N.Y. Penal Law §§ 245.01 and 245.02). Tunick sought an injunction to prevent the arrests, arguing the photo shoot was artistic expression protected by the First Amendment.

    Procedural History

    The District Court granted a preliminary injunction in favor of Tunick. The Second Circuit stayed the injunction pending appeal and expedited the appeal process. The Second Circuit then certified three questions to the New York Court of Appeals. A dissenting judge opposed certification, suggesting the issue could become moot. The New York Court of Appeals then declined to answer the certified questions.

    Issue(s)

    Whether the New York Court of Appeals should answer certified questions from a federal court when: (1) the underlying issue may become moot during the certification process, and (2) a significant issue (like a state constitutional question) was not adequately raised and briefed by the parties in the lower courts?

    Holding

    No, because: (1) the delay inherent in the certification process could lead to mootness if the Second Circuit lifted the stay and allowed the photo shoot to occur and (2) the court deemed it inappropriate to address the state constitutional issue when the parties had not adequately presented it.

    Court’s Reasoning

    The court weighed the benefits of answering the certified questions against the potential for the case to become moot. The court recognized New York’s certification procedure provides great value when Federal appellate courts are faced with questions of New York law on which the Court of Appeals has not previously spoken. However, the court was concerned about the already lengthy delay in adjudicating the plaintiff’s civil rights claims. The court emphasized the need for expedited review in cases involving prior restraints on artistic conduct. Because answering the questions would add months to the case, the photo shoot could take place, thus terminating the plaintiff’s action.

    The court also noted the state constitutional issue was not raised, briefed, or argued by the parties themselves. The court stated, “This Court could not responsibly engage on that question where the parties to the litigation have not sought relief under this State’s Constitution and the issue would be first briefed and raised in our Court.”

    The court underscored the value of the certification procedure but found that in this particular case, the potential for mootness and the lack of adequate briefing on the state constitutional issue outweighed the benefits of answering the certified questions.

  • People v. Hernandez, 98 N.Y.2d 275 (2002): Appealability of Sex Offender Certification

    People v. Hernandez, 98 N.Y.2d 275 (2002)

    A defendant’s certification as a sex offender under New York’s Sex Offender Registration Act (SORA) is appealable as part of the judgment of conviction, allowing appellate review of potential errors in the certification process.

    Summary

    Hernandez was convicted of attempted rape and sexual abuse. He challenged the denial of a for-cause jury challenge, the jury instruction on “attempt,” and the appealability of his sex offender certification under SORA. The New York Court of Appeals held that the SORA certification is appealable as part of the judgment of conviction. The Court reasoned that since the certification is mandated by statute upon conviction and included in the order of commitment, it is an integral part of the final adjudication and thus subject to appellate review. The case was remitted to the Appellate Division for consideration of Hernandez’s ex post facto challenge to the SORA certification.

    Facts

    Hernandez accosted a woman, stated his intent to “make love” to her, and threatened her. He choked her when she cried out and dragged her towards a basement, touching her vaginal area through her clothing. The victim escaped and police found Hernandez hiding nearby. He was identified and indicted for attempted rape and sexual abuse.

    Procedural History

    The trial court denied Hernandez’s challenge for cause of a potential juror. He was convicted after a jury trial. At sentencing, the court certified Hernandez as a sex offender under SORA, which Hernandez challenged. The Appellate Division affirmed the conviction but held the SORA certification was not reviewable on direct appeal, citing People v. Stevens. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a defendant’s certification as a sex offender under Correction Law article 6-C (SORA) is appealable as part of a direct appeal from the judgment of conviction.

    Holding

    Yes, because the certification is a mandatory part of the court’s final adjudication upon conviction and is included in the order of commitment, making it an integral part of the judgment and therefore appealable.

    Court’s Reasoning

    The Court of Appeals reasoned that the SORA certification, mandated by Correction Law § 168-d(1) upon conviction, becomes part of the order of commitment, which is directly linked to the judgment. The Court analogized the SORA certification to the imposition of a mandatory surcharge, which is also levied at sentencing and is reviewable on appeal. The Court rejected the argument that SORA certification is merely a “nonsentence consequence,” stating that this would unfairly deprive defendants of appellate review of potential errors in the certification process. The Court distinguished its prior holding in People v. Stevens, where it held that risk level determinations are not appealable as part of the judgment of conviction. In Stevens, the risk level determination occurred postsentence, whereas here, the certification occurs contemporaneously with the conviction and sentence. The court acknowledged potential inconsistencies that might arise if risk-level determinations are made simultaneously with certification but emphasized the need for legislative clarification. The Court stated, “Unlike the belated risk level determination in Stevens, defendant’s SORA “certification” here was actually and temporally part of the judgment of conviction.” Because the certification is a part of the judgment, it is appealable. The court stated that, “Even assuming that SORA certifications were deemed not a part of the sentence, we are satisfied that they are certainly part of the judgment.”

  • Matter of Marro v. Bartlett, 46 N.Y.2d 674 (1979): Judicial Review of Administrative Board Discretion in Certifying Retired Judges

    Matter of Marro v. Bartlett, 46 N.Y.2d 674 (1979)

    The Administrative Board of the Judicial Conference has broad discretion in deciding whether to certify retired judges for additional service, and this discretion is not generally subject to judicial review unless there’s a substantial claim of a constitutional or statutory violation unrelated to the certification process itself.

    Summary

    This case addresses the extent to which courts can review the Administrative Board of the Judicial Conference’s decisions regarding the certification of retired Supreme Court Justices for additional judicial service. Marro, a former Supreme Court Justice, applied for certification after reaching mandatory retirement age. The Board denied his application without a hearing or explanation. Marro then sued, arguing he was entitled to certification if he was mentally and physically capable. The New York Court of Appeals held that the Board has nearly unfettered discretion in these matters, and its decisions are not reviewable absent a showing of a violation of constitutional or statutory law unrelated to the certification process. This discretion is essential for the board to effectively assess the needs of the court and the suitability of individual candidates.

    Facts

    Marro served as a Judge of the Civil Court of the City of New York and then as a Supreme Court Justice in the First Judicial Department, elected in November 1973.
    He reached the mandatory retirement age of 70 in March 1977 and retired at the end of that year.
    He applied for certification for a further two-year term as a retired Justice, as permitted by the New York Constitution and Judiciary Law.
    The Administrative Board of the Judicial Conference denied his application without a hearing or providing any reasons.
    Marro commenced an Article 78 proceeding seeking to compel the Board to certify him.

    Procedural History

    The Supreme Court initially annulled the Board’s denial and directed certification unless physical or mental disability was alleged, in which case a hearing was required.
    The Appellate Division reversed the Supreme Court’s decision and dismissed Marro’s petition.
    The New York Court of Appeals affirmed the Appellate Division’s decision, upholding the Board’s broad discretion.

    Issue(s)

    Whether the Administrative Board of the Judicial Conference has discretion to deny certification to a retired judge who meets the minimum qualifications (mental and physical capacity and necessity of services to expedite court business).
    Whether a retired judge is entitled to a hearing and a statement of reasons when the Administrative Board denies their application for certification.

    Holding

    No, because the Constitution and Judiciary Law grant the Board broad discretion in determining which retired judges to certify, and this discretion is not subject to judicial review absent a claim of a violation of law unrelated to the certification process.
    No, because the certification process is an initiatory action creating a new judicial designation, and the retired judge has no property right or entitlement to continued service that would trigger due process protections.

    Court’s Reasoning

    The court emphasized that the Constitution states a former justice “may” perform duties if certified, interpreting “may” as enabling but not entitling. The court noted that the constitutional provision recognizes a break in service and that the certification initiates a new designation.
    The court highlighted that the standard for certification considers “the services of such judge or justice,” implying an individualized evaluation beyond simply determining a need for judicial services.
    The court found that the statute implementing the constitutional provision gives the Administrative Board broad authority, specifying no particular procedures.
    The court reasoned that requiring specific determination standards or articulation of reasons would be artificial because the certification process relies on non-objective evaluations.
    The court stated that the board must be vested with broad authority for the exercise of responsible judgment, relying on the integrity and collective wisdom of the board members.
    The court noted that designation as a Supreme Court Justice is a high-level position, and weighing personal considerations is inherent in determining whether a former judge’s services are necessary.
    The court rejected the argument that denial of certification attaches a stigma, absent public disclosure of reasons, and found no property right was involved.
    The court quoted from the Constitution: “Each such former * * * justice * * * may thereafter perform the duties of a justice of the supreme court * * * provided, however, that it shall be certified”.