Second Amendment Legal Update, December 2023

A monthly update, prepared for the Schuyler County Chapter of S.C.O.P.E. NY, a statewide 501(c)4 organization dedicated to preserving the 2nd Amendment rights for the residents of New York State. For a complete copy of this month’s report, click here.

New York State Court of Appeals to move to virtual arguments in June

The New York State Court of Appeals, the state's highest court, is following the Appellate Division into virtual arguments in June due to COVID-19.

Currently, the Court is only considering submitted (on papers) appeals during its April and May session, not in-person arguments, according to published reports.

New York Court of Appeals rules Ohio gun seller not subject to injury lawsuit in New York

A gun dealer from Ohio who sold a firearm that was later trafficked into New York and used illegally in a shooting cannot be sued in state court by the victim of that crime, the New York State Court of Appeals ruled May 9.

The court held that Charles Brown, an Ohio gun dealer, couldn’t face the litigation in New York court because he sold the gun in Ohio and had no control over where it would end up after the sale, even if the buyer alluded that he may bring it to New York.

“Despite (the buyer’s) stated aspiration to open a gun shop in Buffalo, the record is devoid of evidence supporting plaintiffs’ theory that, merely by selling handguns to (the buyer) Brown intended to serve the New York market,” the court ruled.

Brown, in this case, was not part of a scheme to traffic guns into New York, the court held. The judges said there was no way for him to know what would happen to the firearms after they were sold so he did not purposefully enter into the New York market at the time.

The buyer later pleaded guilty to federal gun trafficking charges.

Brown's attorney said that "the case's main significance was that this was the lawful sale of a lawful product."

The complete decision can be found here.

New York’s Highest Court Rejects Challenge To Schuyler County’s Local Hotel Tax

ALBANY—The New York State Court of Appeals has denied a motion for leave to appeal an order upholding Schuyler County’s local hotel tax on vacation rentals and other tourist facilities.

The court issued the order on Thursday (October 27). It rejected the appeal filed by Thomas Schneider, owner of “Seneca Lake Vacation Rentals” and let stand a June holding from the Supreme Court, Appellate Division, that the Schuyler County Treasurer properly applied the four percent local tax to these properties.

In 2014, the Schuyler County Treasurer found that Schneider owed $6,100.00 in back taxes under the "Schuyler County Hotel or Motel Room Occupancy Tax Law.” Under that local law, Schuyler County imposes a four percent (4%) local tax upon the rent for every occupancy of a room or rooms in a hotel, motel, bed and breakfast or tourist facility having one or more rooms in the county. The purpose of the tax is to promote local tourism and to enhance the local economy.

Schneider, a resident of New Jersey, had argued that his properties were exempt from the tax as “bungalows” under regulations of the State Commissioner of Taxation and Finance. He sued in state court to overturn the treasurer’s findings, but his lawsuit was dismissed. He then filed an appeal to the Third Judicial Department, Supreme Court, Appellate Division.

In the previous appeal, Schneider’s attorneys, Schlather, Stumbar, Parks & Salk argued that the properties could not be taxed because they are furnished and do not provide housekeeping, food or other common hotel services.

Representing the County Treasurer, Schuyler County Attorney Steven Getman argued on appeal that the state exemption was specifically limited to state administered taxes, not locally administered hotel or room taxes. The local tax, Getman said, more broadly defined hotels and motels to include “bed and breakfasts” and “tourist’ facilities,” such as bungalows.

In its decision, the Appellate Division ruled that the State Commissioner's interpretation does not apply to the locally administered tax. The court noted that other local taxes, including the City of New York’s, did not exempt bungalows and that the definition of "hotel" in the enabling statute was expansive enough to include bungalows such as the properties owned by Schneider. Therefore, the Appellate Division stated, the prior decision upholding the treasurer should be affirmed.

In addition, the Appellate Division rejected Schneider’s argument that the retroactive imposition of the tax against his property was unjust. Schneider had been operating his vacation rental business for approximately five years, but had never filed a tax return with the county treasurer’s office, due to his theory that the “bungalow exception” excused his doing so.

In July 2016, after the Appellate Division ruled against him, Schneider’s attorneys moved the Court of Appeals for leave to appeal to that court. The county attorney opposed.

On Thursday, the Court of Appeals issued an order denying Schneider’s request to appeal. It also imposed $100.00 costs.

The Court of Appeals decision means that the prior decisions upholding the county’s tax become final and binding.

New York wins big victory in locking up sex offenders

Syracuse.com:

New York's top court this month delivered a big victory to state prosecutors who want to remove some of the worst sex offenders from society -- possibly forever.

The court allowed the combination of two non-sex-related mental illnesses -- anti-social personality disorder and borderline personality disorder -- to form the basis for locking up sex offenders after their release from prison. The court had ruled previously that anti-social personality disorder (ASPD) could not be used alone to keep a sex offender confined.

The ruling strengthens the legal grounds to remove the worst sex offenders from the streets.

The complete decision can be found here.

New York's high court approves extended jail for willful failure to pay child support

Syracuse Post Standard:

People who deliberately refuse to pay court-ordered child support can go to jail for consecutive six-month sentences for repeat violations, New York's highest court ruled Tuesday...

The Court of Appeals, with six judges ruling unanimously, said Family Court can revisit jail sentences for willful violations that were previously suspended and order an offender jailed on all of them. Those sentences can run consecutively, extending the time an offender can be locked up....

Federal data show that unpaid child support has risen over the past 30 years from nearly $3 billion to more than $115 billion nationally

The complete decision can be found here.

New York Appellate Court now live broadcasting oral arguments.

The Supreme Court, Appellate Division, Third Department is now live broadcasting oral arguments on its website.

Oral arguments are typically scheduled for two weeks every month. There is usually one session of oral arguments each day, beginning at either 9:30 a.m. or 1:00 p.m. Daily session calendars are available on the court's monthly term calendar.

The Appellate Division, Third Department, which is located in Albany, is one of four Appellate Division Departments. Each Department exercises appellate jurisdiction in a separate geographic region.

The Appellate Division is New York State's intermediate level appellate court. It hears appeals from trial courts and has power to review both law and facts in civil and criminal cases. Appeals from the Appellate Division are taken to the Court of Appeals, the State's highest court. The bulk of all appellate review in New York State is provided by the Appellate Division.