Prosecutors Can Impeach with Inconsistent Statements to Police

–by Emily Keable

Citations: People v. Chery, 2016 N.Y. Lexis 3459 (2016); People v. Savage, 409 N.E.2d 858 (N.Y. 1980).

Abstract: When a defendant’s initial statements to the police differ from the testimony the defendant provides at trial, the prosecution is able to impeach the defendant.

***

Procedural History

The defendant and another man robbed $215 from the complainant, who was the only employee at a small grocery store. The complainant was closing the store that night, but there were two other witnesses who testified at trial. The officers arrived at the scene and handcuffed both the defendant and the complainant, unsure at this point who was at fault. The officer observed a sharp wooden object in the defendant’s hand and a long wooden board on the sidewalk. The officer recovered $215 from the defendant’s pocket. After speaking with both parties and the two witnesses, the defendant was subsequently arrested.

Prior to trial, the trial court denied the defendant’s motion to suppress the statement he made to the responding officer at the scene. The defendant had asked the responding officer, “why isn’t [complainant] going to jail, he kicked my bike, he should go to jail too.” The defendant’s theory was that the statement was “spontaneous and not the product of investigation” and should therefore not be used against him.

At trial, the defendant took the stand and testified on direct examination that before the incident, he saw the complainant chasing two girls running away from the store. The complainant was yelling at the girls for trying to steal from the store. The defendant continued to testify that he told the complainant that yelling at the young girls was not good for business. The complainant then kicked the defendant’s bicycle and hit the defendant in the head with a piece of wood. The defendant testified that when the police arrived he had been struggling over control of the piece of wood with the complainant.

After direct, the prosecution asked the trial court to impeach the defendant with the defendant’s selective silence during the initial, spontaneous statement to the police. The prosecution relied on People v. Savage to assert that the defendant could be impeached as the defendant testified to certain events that were not included in the initial statement to police. Although the defense argued that Savage was distinguishable from the present case because the defendant in Savage had received Miranda warnings, the trial court allowed the prosecution to impeach the defendant. Subsequently, the defendant contradicted himself on the stand and he was convicted of robbery in the first degree and two counts of robbery in the second degree. The Appellate Division confirmed.

 

Rationale

The issue presented to the Court of Appeals was whether the trial court erred in allowing the prosecution to use the defendant’s selective silence to impeach the defendant’s testimony.

Initially, the court held that the defendant’s constitutional rights to due process or to remain silent were not invoked in this matter. Rather, the court focused on the prosecutor’s use of the defendant’s selective silence during a spontaneous statement for impeachment purposes.

The general evidentiary rule established precludes the use of a defendant’s pretrial silence. This rule has been held applicable both to direct examination and for impeachment purposes. The rational behind this rule has remained steadfast in that a defendant’s silence has a significantly low probative value due to its general ambiguity.

Savage recognizes a narrow exception to this rule. When “circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment.”

The court held that this case fell within the confines of Savage. It emphasized that the defendant’s statement was made spontaneously at the scene in an attempt to inform the police on whom to arrest. The defendant’s statement was not inculpatory, but was rather a description of the event. Therefore, since the defendant testified that he spoke with police at the scene, the credibility of his initial spontaneous statement was legitimately called into question. It was viewed that the defendant’s selective silence to the police on facts that would have been more favorable to him illustrated an attempt to fabricate his testimony. Therefore, the jurors were properly allowed to draw their own conclusions from the prosecution’s introduction of the defendant’s selective statements.

NYS Law Passed to “Put an End to Airbnb” in NYC; Airbnb has Rushed to Sue for a Preliminary Injunction

–by Carlie Roman

Citations: https://www.nysenate.gov/legislation/bills/2015/S6340/amendment/A; http://www.wsj.com/articles/airbnb-in-talks-to-settle-new-york-lawsuit-1477959169 ; http://www.nytimes.com/2016/10/22/technology/new-york-passes-law-airbnb.html?_r=0 ; http://www.nydailynews.com/new-york/nyc-marathon-runners-race-airbnb-new-state-law-article-1.2859787

Abstract: Last month, Governor Andrew Cuomo signed a law that can impose up to $7,500 in fines for advertising illegal short-term apartment rentals in New York City (“NYC”). One common example is rentals listed on Airbnb. Before the law could be enforced, Airbnb filed a lawsuit seeking a preliminary injunction.

***

In June, the New York State (“NYS”) Senate passed a bill (Senate Bill S6340A) to prohibit advertising of illegal-short term rentals in NYC. Governor Cuomo signed the bill into law in October. Apartment rentals in multiunit buildings within NYC for fewer than 30-days had been a violation since 2010, but this new law will make enforcement more effective by targeting the advertising of said rentals. The NYS Senate says that the purpose of the bill is “[t]o make unlawful advertising for the use or occupancy of dwelling units in class A multiple dwellings for purposes other than permanent residence, to create civil penalties for violations of this prohibition, and to define the term ‘advertise’ in such context.”

The Senate justified the passage of this bill by explaining that, despite the fact that it had been illegal to rent for less than 30-days in NYC since 2010, people were still advertising over the Internet. The Senate explained that this type of advertising was contrary to the public interest because it promoted illegal activity, it aided the business of illegal hotels, and it implicated concerns regarding building safety codes. Advocates of the new regulation also argued that preventing these short-term rental schemes —that take long-term rental options off the market, driving up housing prices— will help to promote more affordable housing.

Airbnb, a company that facilities online short-term rentals, has opposed the new legislation from the start, asserting their belief that it was passed in response to pressure from hotel lobbyists. The same day this new law was signed into effect, Airbnb brought a federal suit against State Attorney General Eric T. Schneiderman, Mayor Bill de Blasio, and the City of New York (“The State”), seeking to enjoin the act from being enforced. Airbnb argues that the language of the statute is broad and vague in such a way that it may be construed to allow fines against Airbnb for third-party listings on their website that are in violation of the statute. Airbnb contends that if they were fined under this new statute it would violate the Federal Communication Decency Act, which protects websites from sanctions relating to third-party content posted to their websites. Furthermore, Airbnb contends that banning these advertisements for short-term rentals violates the First Amendment Freedom of Speech protection. The litigation process is currently at a standstill while the parties negotiate for a settlement.

The State maintains, however, that their goal is not to go after individuals renting their apartments while they go out of town for the weekend, but rather to target the big players. According to the Attorney General’s Office, the State plans to enforce the statute against the illegal hotel operators and the landlords who are taking their units off the market and using their buildings exclusively for things likes Airbnb rentals. Furthermore, the State explains that they are not looking to fine Airbnb itself, but the individuals who are hosts on the site.

As a result of this lawsuit, enforcement of the statute has been delayed for several weeks. Enforcement of this new regulation is entrusted to the Mayor’s Office of Special Enforcement and they have confirmed that they will not enforce the new regulations until Federal District Court Judge Katherine Forrest issues a decision regarding the preliminary injunction. Melissa Grace, spokeswoman for the Mayor did, however, urge, “We are taking the steps necessary to enable us to enforce the State law. Our focus has and will continue to be operators of illegal hotels who put people in unsafe conditions and take affordable homes off the market. We will continue to apply current State law to hold bad actors accountable.”

In the meantime, Airbnb usage is still soaring and the company reported that for the NYC Marathon, over 34,000 visitors used Airbnb during their stay, generating over $25 million dollars in revenue for the company and their hosts.

School Boards Forced to Submit to Local Zoning Schemes in Building Athletic Facilities

—by Samuel Cohen

Sources: John Wolohan & Samuel Cohen, Zoning Regulations Dismantle School’s Bleachers, Athletic Bus., Nov. 2016, at 22; Jeff Gruba v. Community High School District No. 1, 40 N.E.3d 1 (Ill. 2015)

Abstract: On September 24, 2015, the Supreme Court of Illinois ruled that State School Boards are subject to municipal zoning regulation in building athletic facilities, relying on the provisions of the State School Code in determining as much.

***

Facts and Procedural History

In 2013, the Board of Education of Community High School District No. 155 (the “Board”) determined that the bleachers at Crystal Lake South football stadium were not up to structural standards, and so decided that new bleachers should be installed. The new bleachers would “be larger, higher, and closer to the property line than the existing bleachers abutting the residences.” The Board sought project approval from the McHenry County Regional Superintendent of Schools, Leslie Schermerhorm, who approved the plans and issued a building permit. The Board did nothing to notify the city of Crystal Lake (the “City”) prior to beginning the construction of the bleachers.

At some point, the City learned of the project and informed the Board that it was not in compliance with the Crystal Lake Unified Development Ordinance because the Board failed to obtain a special-use permit, a storm water permit, and zoning variances, all of which were required under the ordinance. The Board ignored the order from the City to put the project on hold until proper permits were obtained. The Board’s cited reason for not complying with the order was that a “school district’s construction on property used for school purposes is not subject to the zoning authority of the local municipality.”

The essential issue in the suit, brought by three homeowners who own property adjacent to the school, is whether or not the Board’s reason for not complying with the City’s order constitutes a valid excuse. The parties filed cross motions for summary judgment on the issue and the Circuit Court of McHenry County awarded summary judgment in favor of the City. This ruling was affirmed on first appeal and was then appealed to the State’s highest court.

The court determined that since there were cross motions for summary judgment there was no issue of fact and only a question of law was involved. The court stated that its primary goal in statutory interpretation is to give effect to the legislature’s intent. The Board asserted that there were multiple alternative statutory interpretations that justified their exemption from the municipal zoning ordinance at issue.

Issues

            The first theory that the Board put forward for why it was exempt from municipal zoning regulations was that the General Assembly of the state has exempted certain entities from municipal zoning regulations and that the Board fell into this category. However, the court found no statute limiting a municipality from regulating zoning or storm water management on school property. Further, the court found that since the City was a home rule municipality (a municipality with the power to perform any function not expressly granted to the state or federal government as long as it is not in violation of any state or federal law), it had even greater authority to impose its zoning ordinances on the Board since no federal or state legislation preempted it.

The Board’s argument in the absence of a statutory provision that expressly exempts the school is that subjecting the schools to municipality zoning ordinances will “unduly interfere with the General Assembly’s constitutional authority to regulate the public education system.” The court found that this to be an unfounded claim and that, in fact, the School Code approved by the General Assembly supported a contention that the General Assembly intended to make schools subject to municipal zoning laws. This was based on section 10-22.13a of the School Code, which authorizes a school board “[t]o seek zoning variations, or special uses for property held or controlled by the school district.” 105 ILCS 5/10-22.13a (West 2012). Looking at the language of the provision, the court held that it would be illogical to conclude, as the Board contended, that the provision creates a permissive power to make such requests and that this power does not create an obligation on the Board to seek such an approval. The court found the most natural reading of section 10-22-13a conferred a power to request zoning variances because schools fall within local zoning regulations and therefore need to be able to request variances to be in compliance.

The Board alternatively contended that the provision of section 10-22-13a only applied to school district property not used for school purposes. The court rejected this approach as not part of a plain language reading of the provision. It also looked at a different case, Wilmette Park District v. Wight & Co., 490 N.E.2d 1282 (Ill. 1986), in which a parks department made a similar argument to the Board and the court rejected that argument.

The final theory for the Board’s contention that it is exempt from municipal zoning schemes is that the Health/Life Safety Code for Public Schools (Health/Life Safety Code), created under the School Code passed by the General Assembly, “limits municipalities’ review and inspection of school construction plans[.]” The provision of the Health/Life Safety Code that the Board cited as a basis for its exemption said in pertinent part that municipalities were authorized to register with the regional superintendent of schools to receive notice of school construction plans and then object in writing to the plans. The Board contends that because the City did not register to be notified it is estopped from objecting to the project.

The court also rejected this theory, finding that the Health/Life Safety Code is a building code, which has different goals and purposes than local zoning regulations. This is because the concerns of zoning ordinances (size, height, set back from property lines) are not addressed in building codes. Therefore, in the absence of evidence from the building code that it intended to address zoning issues, the court rejected that the Health/Life Safety Code preempted or limited the City’s authority over land use within its jurisdiction. Since none of the theories put forward by the Board for their exemption from municipal zoning schemes were accepted by the court, the judgment for the City was affirmed.

New York State Senate Seeks to Stop Scalpers

—by Conor Tallet

Sources: S.B. S6931C, 2015-2016 Reg. Sess. (N.Y. 2016); Andrew J. Lanza, Senate Passes Lanza’s Bill to Help Stop “Bots” from Ruining Consumers’ Chances of Buying Concert and Other Event Tickets (May 25, 2016) https://www.nysenate.gov/newsroom/articles/andrew-j-lanza/senate-passes-lanzas-bill-help-stop-bots-ruining-consumers-chances; Jim Zarroli, Can’t Buy A Ticket To That Concert You Want To See? Blame Bots, NPR.ORG, (Jan. 28, 2016) http://www.npr.org/sections/thetwo-way/2016/01/28/464708137/cant-buy-a-ticket-to-that-concert-you-want-to-see-blame-bots.

Abstract: Ticket bots pose a threat to the music and entertainment industry because they allow individuals to purchase mass quantities of tickets and sell them at a large premium above face value on secondary websites such as StubHub. This creates artificially inflated ticket prices for concerts and events that is threatening the entire way an average consumer can get their hands on tickets. In order to combat this, the New York State Senate passed a bill in an attempt to eliminate the unfair competitive advantage that ticket bots possess over the average consumer.

***

Have you ever attempted to buy on-sale tickets for the Rolling Stones, World Series, or any other popular event? If yes, then chances are you have encountered the difficulty and frustration associated with purchasing tickets through Live Nation or Ticketmaster. The normal fan would ideally like to get the closest seat to the game or concert that they can, but often wind up getting nosebleed seats through the on-sale period. Why is it just so difficult and competitive to get your hands on good seats for the hottest band or sporting event? Ticket bots.

Ticket bots are a type of computer software that allows individuals to circumvent security measures on ticket retailing websites and scoop up the best seats in the house. These individuals are not only getting the best tickets, but ticket bots also allow the user to purchase large quantities of the best tickets in the venue. According to National Public Radio, when a bot bypasses the security measures on a site like Ticketmaster, the “[v]endors can acquire large numbers of tickets quickly by using multiple IP addresses.” This is an enormous problem plaguing the music and entertainment industry that is artificially driving up prices to events. For example, in some instances a single bot can acquire as many as 1,000 tickets at a time and sell each ticket at a steep premium on resale websites like StubHub. As a result, ticket scalpers are reaping serious profits from this devious tactic at the expense of die-hard fans.

This isn’t your typical case of supply and demand economics, but is a “fixed game,” according to New York Attorney General Eric Schneiderman. Thus, the New York State Senate is attempting to deter the use of bots in the ticket business by passing bill S6931C. Senator Andrew Lanza (R-C-I, Staten Island) first introduced this bill in May 2016 to level out the playing field and give every buyer a fair shot at purchasing tickets for an event. Specifically, the bill seeks to “[p]rohibit the use or sale of computer software to circumvent security measures or access control systems that ensure equitable consumer access to tickets for a particular event.”

Put simply, the goal of the bill is to stop unfair competitive advantages of ticket bots by imposing civil and criminal penalties. The criminal penalties associated with this bill include “a Class A misdemeanor charge for first time offenders, followed by a Class E felony for repeat offenders.” In addition, fines imposed for violation of this bill run from $750 to $1,500 for each violation. The bill has been passed by the Senate and now rests in the hands of the Assembly and ultimately Governor Cuomo.

Bill S6931C is just beginning to scratch the surface on this new and important issue affecting the music and entertainment industry. It will be interesting to see this bill in effect if it passes through the Assembly and aligned into place by Governor Cuomo in New York. Will it be enough to deter ticket bots and give all consumers a fair chance at purchasing tickets for the next big Carrier Dome event? Or will the interstate commerce nature of ticket and event sales snowball into a more prominent problem best equipped by the federal government to address? Only time will tell.

Justice Department Rejects Forensic Science Recommendations; Critics Disapprove

—by Jennifer Pratt

Abstract: Attorney General Loretta Lynch opted not to adopt any recommendations set forth in a report to the President about the unreliability of scientific testing in court settings.  Critics fear this may lead to increased numbers of convictions for innocent defendants.

Citations: Gary Fields, White House Advisory Council Report is Critical of Forensics Used in Criminal Trials, The Wall Street Journal, http://www.wsj.com/articles/white-house-advisory-council-releases-report-critical-of-forensics-used-in-criminal-trials-1474394743 (Sept. 20, 2016); President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf (2016).

***

In early September, the President’s Council of Advisors on Science and Technology (“the Council”) released a report (“the report”) on forensic science.  The report was a scathing review of how scientific evidence is analyzed and used in criminal trials.  According to the Council, a large portion of the most common analyses used do not meet scientific standards.

A large part of the Council’s criticism rested on the Federal Bureau of Investigation (FBI) laboratory and its processes.  The report raised various questions about the use of different types of common analyses performed at the lab, including hair, firearm and bite-mark analysis.  It also made recommendations for how to improve the forensic science agenda at the laboratory.  According to the Council, it is necessary for the FBI to expand its development of objective scientific methods used to test evidence that will be used in criminal cases.  Currently, said the Council, there are three specific subjective tests that need to be made objective: latent fingerprint analysis, firearms analysis, and sometimes, DNA analysis.

The Council also articulated recommendations for stricter proficiency testing of analysts.  It argued that the current standards for proficiency are insufficient for what is required of experts in the field.  According to the Council, “increased rigor” in proficiency testing is necessary to ensure that analysts are as well trained as is necessary.

In regard to the law, the Council stated that legal standards in cases that involve any scientific evidence should be based on scientific validity.  The report further intimated that neither experience, judgment, nor even solid professional practices could make up for actual evidence of “validity and reliability” in scientific testing.

Shortly after the Council released its report, the United States Attorney General, Loretta Lynch, responded to its findings.  She stated that the Justice Department would not be adopting any of the recommendations laid out by the Council.  In explaining why, Ms. Lynch said that there had already been large steps taken toward strengthening forensic science within the Justice Department.  She also said that the current legal standards are already based on sound scientific principles, and therefore do not need updating or changing.

This is not dissimilar to actions taken by the Department of Justice in the past.  For example, when the Attorney General formally adopted a new code of ethics for forensic science in September, there had been large changes made from what had been suggested by the National Commission on Forensic Science.  To critics, it appears as though the Justice Department is reluctant to adopt any new standards that would take power away from prosecutors or law enforcement.

One such critic is Barry Pollack, the president of the National Association of Criminal Defense Lawyers.  He stated that it is common knowledge amongst defense attorneys that the validity of scientific evidence and testing has been overstated by law enforcement for years.  He went on to say that the report to the President provided even more evidence that flawed analyses were consistently being used in courts, and furthermore, that those analyses were leading to wrongful convictions.

Law-enforcement officials, on the other hand, have stated that the report’s findings, if adopted, would lead to many “unwarranted challenges” in cases where defendants had been correctly convicted.  The FBI also disagreed with much of what the report said.  In a statement, an FBI official said the report “makes broad, unsupported assertions” about scientific testing, and forensic science in general.  The official further attacked the Council for not mentioning any published research studies, which may have already met the report’s criteria for scientific testing.

The question for many now is whether the Justice Department will continue to reject any and all recommendations for improving scientific analyses.  If it does, many defense attorneys worry that conviction rates for those who are innocent will continue to rise.  This poses ethical and moral questions to prosecutors across the country, as they must now determine how to handle evidence that may not be reliable.  At the very least, this issue has made its way into the spotlight and will hopefully be discussed more in the future.

New York State Senate Passes Bill to Accommodate Ride Sharing Apps, but the Assembly Will Not Follow

—by S. Alex Berlucchi

Sources: S.B. 4280, 238th S. Sess., 2015-2016 Reg. Sess. (N.Y. 2016); Mike McAndrew, Senate Passes Uber in Upstate NY Bill, but Assembly Expected to Balk, Syracuse.com, 1, 1 (June 17, 2016) http://www.syracuse.com/state/index.ssf/2016/06/senate_passes_uber_in_upstate_ny_bill_but_assemby_expected_to_balk.html

Abstract:  The New York State Senate passed a bill to allow “transportation network companies,” such as Uber and Lyft, to operate in areas of New York State outside of New York City.  Presently, concerns for the safety of the passengers and the insurance requirements for the drivers are causing debate within both the Senate and the Assembly.  While this bill passed in the Senate, it is not likely to pass in the Assembly.  Facing political pressure from Governor Andrew Cuomo, a resolution to the prohibition of ride-booking companies is imminent.

***

The New York State Senate passed a bill allowing “transportation network companies” such as Uber and Lyft, to operate in New York State.  Currently, these companies are only legally allowed to operate in New York City.  Ride-booking companies received an exception to operate in New York City, and the convenient, trend-setting ride services are advocated as an improved means of public transportation.  While this bill did pass in the Senate, the Assembly is reluctant to follow suit.

Senator James Seward (R-Oneonta) sponsored New York Senate Bill 4280, which passed in the Senate Insurance Committee.  The bill would require a minimum of one million dollars in liability coverage whenever a drive has a “paid passenger in their personal vehicle.”  When there are no riders, the Bill similarly mandates minimum coverage, totaling $200,000.  This minimum is higher than the minimum insurance requirements for taxi cab drivers in local municipalities, such as Utica, thus demonstrating an effort to maintain the current taxi cab industry while allowing “transportation network companies” to spread to other cities in New York.  Furthermore, this Bill allows for local control over all other issues, such as accessibility and requirements to act as an independent contractor.

This bill passed, in the Senate, despite strong opposition from the traditional taxi cab and limousine industry.  Similar to protests seen in New York City, allowing ride-booking companies to operate in cities such as Syracuse, Buffalo, and Rochester will have a detrimental effect on the cab industries in these respective localities.  For example, currently only 200 taxi cab licenses are issued, and all 200 are currently taken.  An influx of transportation options may lead to increased litigation with the taxi cab industry; however, there are two issues with the Bill as presently written.

The first issue is a lack access to “transportation network companies” for individuals with disabilities.  Presently, of the 30,000 independent contracts operating in New York City, there are zero vehicles which are wheelchair accessible.  This will be an issue for passing a law in New York, as the Assembly has placed an emphasis on handicap accessibility, as well as safety of the passengers.

In the Assembly, the parallel bill to New York Senate Bill 4280 includes higher mandatory minimum levels of insurance coverage.  There is also an express need to perform background checks on the drivers, in the interest of public safety, and a mandate for handicap accessibility.  These provisions were not included in the Senate version of the Bill.   Therefore, the Assembly is unlikely to resolve these issues.

This conversation began in the New York State Legislature more than one year ago.  Gov. Andrew Cuomo spoke to the positive aspects of ridesharing, or ride-booking, as a rapidly expanding business.  As a growing aspect of the technology industry, these “digital networks” provide a valuable service both to citizens of New York, and tourists who may be visiting.

Despite the benefit, the State Legislature is divided on the interests of public safety, and the autonomy provided to local governments will still be a barrier in allowing “transportation network companies” to operate.  The Assembly is not likely to pass the current bill as it is written.  In addition, while the Senate focused on insurance minimums to pass the Bill, the Assembly will need to resolve more issues before proposing a Bill which may be duly considered.  Based on the public response, this discussion is unlikely to resolve itself during the current session.

Bill Introduced to Prevent Sex Offenders from Playing Virtual Reality Games

—by Will Kilgore

Sources: S.B. 8174, 238th S. Sess., 2015–2016 Reg. Sess. (N.Y. 2016); N.Y. Penal Law § 65.10 (McKinney 2016).

Abstract: New York Senator Jeffrey Klein introduced Senate Bill 8174 to prohibit sex offenders from accessing augmented reality games, so as to prevent such offenders from congregating in the same real world locations as children engaged in virtual play.

***

On August 3, 2016, New York State Senator Jeffrey Klein introduced Senate Bill 8174 that would amend New York Penal Law Section 65.10 by adding the words “or augmented reality game” into subsection (b) of paragraph 4-a. The justification for Senate Bill 8174 is to prevent unsupervised children and sex offenders from congregating in the same real world locations that the augmented reality game incentivizes players to visit. This proposed legislation came largely in response to the immediate popularity of the augmented reality game Pokémon GO. Senate Bill 8174 is the first proposed legislation, either state or federal, that both recognizes the potential impact of augmented reality games on our culture and attempts to minimize the harm that can occur from playing these types of games.

 

Augmented Reality Games

Augmented reality games, like Pokémon GO, allow players to interact with their real world environment while simultaneously playing the game. For example, in Pokémon GO, the game uses a player’s mobile device camera, GPS, and clock to generate a version of the real world on that device. The purpose of this particular game is to collect creatures that pop up in random real world locations. There are also certain in-game objectives at real world locations, where players can stock up on supplies that are needed for the game or battle their creatures against those of other players. With both children and adults able to play the game, there can be significant risks in allowing unsupervised children to frequent these locations.

 

Current Status of the Law in New York

The subsection that Senate Bill 8174 proposes to amend sets forth mandatory conditions when imposing a sentence of probation or conditional discharge for certain classifications of sex offenders. Those classifications are: sex offenders that perpetrate an offense on victims under age 18, sex offenders that are classified as level three, or sex offenders that used the internet to facilitate the crime. Section 65.10 of New York Penal Law currently prohibits these classifications of sex offenders from: “1) using the internet to access pornographic material; 2) access[ing] a commercial social networking website; or 3) communicat[ing] with other individuals or groups for the purpose of promoting sexual relations with a person under the age of eighteen.” Subsection (b) goes on to define social networking website as:

any business, organization or other entity operating a website that permits persons under eighteen years of age to be registered users for the purpose of establishing personal relationships with other users, where such persons under eighteen years of age may: (i) create web pages or profiles that provide information about themselves where such web pages or profiles are available to the public or to other users; (ii) engage in direct or real time communication with other users, such as a chat room or instant messenger; and (iii) communicate with persons over eighteen years of age.

While Section 65.10 prohibits sex offenders from participating in three distinct activities, and social networking website has a broad definition, augmented reality games are not included in the prohibition.

 

Legislative Pipeline

Currently, Senate Bill 8174 is still in committee. In other words, the proposed legislation still has some distance to go before actually becoming law. The reviewing committee has to decide whether the bill should be sent to the Senate floor for a vote. If the bill passes by a majority in the Senate, then it has to also pass by a majority of the Assembly, and ultimately be signed into law by the Governor.

 

Implications of Senate Bill 8174

If Senate Bill 8174 becomes law, judges will be required to impose this additional condition on the probation or conditional discharge of all of the above-mentioned classifications of sex offenders. Prosecutors and investigators will presumably need to discover new methods to track and prove that a suspect did indeed access an augmented reality game. If a sex offender does access an augmented reality game, it will be the duty of the prosecutor to prove that the individual violated his probation or conditional discharge.

Even though this proposed legislation is still in committee, at the very least it brings awareness to the legislature that augmented reality games are on the market and could have potential negative consequences for consumers. At the very most, it could become law and potentially protect children by prohibiting sex offenders from accessing augmented reality games.

California Passes Bill to Protect Sexual Assault Victims

—by Astrid Quiñones

Source: Sex Crimes: Mandatory Prison Sentence, California, Assembly Bill No. 2888, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2888

Abstract: In response to the Brock Turner case, California enacted legislation to disallow probation and provide a mandatory minimum three-year sentence for defendants convicted of sexually assaulting an unconscious victim.

***

“I do not know your name — but I know that a lot of people failed you [. . .].” – Joe Biden, Vice President of the United States

Stanford rape survivor “Emily Doe” was sexually assaulted by Brock Turner while she was unconscious behind a dumpster. Earlier this year, Turner was convicted of three felonies, including assault with intent to commit rape, penetration of an unconscious person with a foreign object, and penetration of an intoxicated person. However, Turner was sentenced to six months in jail and was released after only serving half of his sentence.

Prior law prohibited a court from granting probation or suspending the execution or imposition of a sentence if a person was convicted of violating specified provisions of the law, including rape by force, pandering, and aggravated sexual assault of a child. But the prior law did not include this prohibition for victims who were unconscious or incapable of providing consent due to intoxication. Thus, the judge had the authority to provide a lenient sentence to Turner.

In response to Turner’s case, California lawmakers proposed legislation to correct this failure. The bill, AB 2888, ends a discrepancy in the California penal code that permits probation for defendants convicted of sexually assaulting an unconscious victim.  Also, it invokes a mandatory minimum three-year prison term for crimes regardless of whether the victim is conscious.

The bill had bipartisan support and quickly passed through the Senate and Assembly, and was signed by California Governor Jerry Brown (D.). However, the bill did not go unopposed. The American Civil Liberties Union and the California Public Defenders Association argued that state law already provided an adequate sentencing scheme. Arguably, changing the sentencing laws was not the appropriate solution to such a serious problem.

In the United States, one in four women are likely to be sexually assaulted in their lifetime. According to RAINN (Rape, Abuse & Incest National Network), the nation’s largest anti-sexual violence organization, out of 344 incidents that are reported to the police, only 6 perpetrators will be incarcerated. The bill reflects the growing awareness of the need to protect women and the need to hold their offenders accountable. The hope is to avoid such injustice from occurring and successfully treat sexual assault victims equally.

Recently Introduced Bill Provides Data Breach Insurance Tax Credit

—by Adam Koulish

H.R. 6032, 114th Cong. (2016) (as referred to H.R. Comm. on Ways and Means, Sept. 14, 2016).

Cybersecurity Framework FAQs Framework Basics, Nat’l Inst. of Standards and Tech. (last visited Sept. 25, 2016), https://www.nist.gov/cyberframework/cybersecurity-framework-faqs-framework-basics.

William H. Latham, Does Your Company’s Data Breach Insurance Coverage Measure Up?, Lexology (Jan. 21, 2016), http://www.lexology.com/library/detail.aspx?g=13ae8c51-5eb8-42f6-8f1c-7e04fa346463.

Abstract: A bill, H.R. 6032, the Data Breach Insurance Act, has recently been introduced to the House Ways and Means Committee. If passed, the bill would allow businesses to claim a tax credit for the purchase of qualified data breach insurance.

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As data breaches or “hacks” of businesses happen at an increasing rate, the purchase of data breach insurance has become a necessity for businesses of all sizes. In an effort to lessen the burden and incentivize such a purchase, a bill was assigned to the House Committee on Ways and Means on September 14, 2016 that would amend the Internal Revenue Code of 1986 to provide a tax credit to businesses that purchase data breach insurance. H.R. 6032, the Data Breach Insurance Act, would provide a credit amount equal to 15 percent of a business’ aggregate premiums paid or incurred during the taxable year for qualified data breach insurance. Being a recently introduced bill, there is a high likelihood of it being amended before it even reaches the House floor. There is also a distinct possibility that the bill will not be passed.

For the purposes of this bill, qualified data breach insurance is “coverage provided by an insurance company for expenses or losses in connection with the theft, loss, disclosure, inaccessibility, or manipulation of data.” Typically, there are two main types of claims associated with data breach insurance coverage. There are third-party claims such as legal defense if sued by a customer whose data was exposed, and there are first-party claims such as the various IT and public relations responses needed to mitigate the damage of a breach. Ideally, a data breach insurance policy would cover both types.

A business wishing to receive this credit must have adopted the Framework for Improving Critical Infrastructure Cybersecurity (FICIC) as set forth by the National Institute of Standards and Technology or any similar standard prescribed by the Secretary of Homeland Security and the Secretary of Commerce. Simply put, the FICIC is voluntary guidance that helps businesses manage and reduce their cybersecurity risk. It also establishes common terms used in cybersecurity risk management to facilitate easier communication between entities inside and outside the business.

In claiming a credit for qualified data breach insurance, the charge for such insurance should be separately stated from other types of insurance in the contract or specified on a separate statement. Also, the charge for qualified data breach insurance should not be unreasonably large in comparison to the rest of the insurance contract. The premiums paid for this insurance will only qualify for the tax credit “if such premiums are paid or incurred in the ordinary course of the taxpayer’s trade or business.” Although since data breaches can happen to almost any business, this should be an easy requirement to satisfy. Lastly, in its current form, the bill provides for credits claimed in the five years after its passage.

Governor Cuomo Signs Executive Order Boycotting a Boycott

—by Ryan Lefkowitz

N.Y. Exec. Order No. 157 (June 5, 2016), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_157_new.pdf.

Abstract: New York State Governor Cuomo signed an executive order aimed to disallow transactions between New York State agencies and institutions engaged in the political protest of Israel through the use of boycotts, divestments, and sanctions.

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On June 5th, 2016, New York State Governor Andrew Cuomo signed into action Executive Order 157 which prohibits state agencies from conducting business with companies that endorse and support economic sanctions for Israel. The executive order comes on the heels of the New York State legislature failing to push through two similar bills, Senate Bill S6378A and S6086. Executive Order 157 explicitly declares a “special historical relationship” and “commonly forged cultural bond” between New York State and Israel as well as the intention of New York State to “stand[] firmly with Israel.”

There are two main components to the executive order. The first involves the creation of a public blacklist of companies that are deemed to support “boycott, divestment, and sanctions activity targeting Israel” (also known as BDS). The executive order defines “boycott, divestment, or sanctions activity against Israel” as engaging in or promoting any activity that is intended to adversely affect Israel’s economy (including limiting commercial relations with both Israel and people in Israel) as a means of affecting political change. Because the executive order’s definition of BDS activities includes a requisite intent of affecting political change, the order relies on the Commissioner being able to reliably distinguish between companies using their buying power to boycott versus purchasing for personal preference.

The list of institutions and companies is to be compiled by the Commissioner of the Office of General Services within 180 days after its enactment. Included in the list will be institutions and companies that the Commissioner finds, through “credible information available to the public,” involved in BDS activities (either directly or through a parent or subsidiary). The order fails to define what means of obtaining information would fall under the umbrella term of “available to the public.” The list is to be publicly posted on the website of the Office of General Services and will be updated every 180 days.

Companies will be provided with written notice prior to being placed on the list, at which point they have ninety days to produce evidence showing they do not actually participate in boycott, divestment, or sanctions activity targeting Israel. If the Commissioner then makes a “good faith” determination that the institution does not engage in such activity, they will not be included on the list.

Any institution that is placed on the publicly published list can petition for removal by providing “written evidence” that the company has ceased its participation in BDS activities. There is no provision for if a company has erroneously been placed on the list and alleges that it has never engaged in BDS activity at all. Although the only requirement for being initially included on the list is “credible information” as evaluated by the Commissioner, the institution bears the burden of providing “written evidence” that they have stopped engaging in BDS activities in order to be removed from the list once published. Therefore, companies can petition to prevent their inclusion on the list by providing evidence they do not engage in BDS activities, but once they are included on the list the only way off is to show they have stopped such activity, not that they never engaged in it to begin with.

The second component of the executive order involves banning business dealings between “affected state agencies” and businesses that are deemed to be involved in or promote BDS activity. The order defines “affected state agencies” as any and all agencies and departments that the Governor has executive authority over, as well as all entities to which the Governor appoints the Chair, the Chief Executive, or the majority of Board Members (with the Port Authority of New York and New Jersey being an exception).

These entities are prohibited from financial dealings with any of the institutions on the publicly available blacklist. Entities that are currently involved with institutions that are deemed to engage in BDS activities have one year from the effective date of the order to comply. The executive order itself is effective immediately and is indefinite in length.

Executive Order 157 is the first of its kind in the country and Governor Cuomo has faced both praise and backlash for it. In light of the inability of the New York State legislature to pass similar bills, some have seen it as an unwarranted executive overreach on a divisive issue. Opponents of the bill’s contents argue that it is a politically motivated attack on the freedom of speech, exercised here through engagement in BDS activities, and is unconstitutional.