Vaccine Passports: New York

How Excelsior Pass, the First U.S. Vaccine Passport, Works 

[Source: GOVTECH TODAY]

The idea of vaccine passports is drawing its share of controversy, but while some states are shutting the idea down, New York’s Excelsior Pass is off and running. GT’s Ben Millerbreaks down what the tool does and doesn’t do. And a contributed piece on GT this week considers whether blockchain technology has a role to play in the creation of secure vaccine passports. 

Click HERE to access the full text of the article posted by GOVTECH TODAY.

 

New York State Comptroller Releases Municipal and School District Audits

New York State Comptroller Thomas P. DiNapoli released the following audits of government entities during the week ending April 11, 2021.

Click on the text in COLOR to access the audit report.

Municipal Audits

• Albany Water Board
• City of Peekskill
• Grand Gorge Fire District
• Masonville Fire District
• Middletown No. 1 Fire District
• Town of Greenwich
• Town of New Hudson
• Village of Head of the Harbor

 

School District Audits

• Briarcliff Manor Union
• Broadalbin-Perth
• Cherry Valley-Springfield
• Hamilton
• Ravena-Coeymans-Selkirk

 

Judical review of rejections of Freedom of Information requests for public records

The petitioner [Plaintiff] in this first CPLR Article 78 of two Freedom of Information Law [FOIL] actions sought a court order to compel the agency to produce certain public records Plaintiff had demanded. Supreme dismissed the proceeding and Plaintiff appealed.

The Appellate Division vacated the dismissal of the action by Supreme Court in part and remanded the matter "to a different judge" for further proceedings "consistent with [the Appellant Division's] order".

Citing Matter of Lesher v Hynes, 19 NY3d 57, the court explained that the agency "failed to meet its burden of establishing that disclosure of any records responsive to [Plaintiff's] FOIL request would "interfere with law enforcement investigations or judicial proceedings," and, in any event, that the exemption no longer applies "after enforcement investigations and any ensuing judicial proceedings have run their course".

The Appellate Division also noted that it rejected the agency's "broad arguments for withholding all of the responsive records" as to honor such a contention "would amount to a blanket exemption that would seemingly apply to virtually any records of any investigation conducted by [the agency]".

In the words of the court, "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government." Click HERE to access this decision by Appellate Division.

The Appellate Division, however, dismissed a second appeal of Article 78 action involving anther FOIL application brought by the same Plaintiff seeking certain other public records.

In this second case Plaintiff sought a court order to compel the agency to disclose records for "all requests for religious accommodations (such as, dress, shifts etc.) by employees and the result thereof ... includ[ing] ... the job title and date," during a specified three-year period.

The court opined that Plaintiff "failed to describe the documents sought with sufficient specificity as to permit [the agency] to identify and locate them," citing Matter of Lebron v Smith, 40 AD3d 515, leave to appeal denied, 9 NY3d 810.

In addition, the agency had submitted an affidavit executed by its Director of Human Resources explaining that "such information [was] not stored in any centralized manner, and that the only way to attempt a complete response to the [Plaintiff's] FOIL request would be to have the agency's thousands of employees search through their paper and electronic records." 

Thus, said the court, the agency had established "a valid basis for denying the [Plaintiff's] FOIL request" by showing that any responsive records "are not indexed in a manner that would enable the identification and location of documents" in the agency's possession. Click HERE to access this second ruling by the Appellate Division.

 

 

The New York State Budget for Fiscal 2021-2022

Click HERE to access Governor Andrew M. Cuomo's summary of the budget for the State's fiscal year 2021-2022 designed "to reimagine, rebuild and renew New York in the wake of the ongoing COVID-19 pandemic."

On April 7, 2021 State Comptroller Thomas p. Dinapoli issued the following statement addressing the Legislature and Governor agreement on a new state budget.

"More than a year into the pandemic, the number of cases remain high in New York but the accelerated pace of vaccinations and job growth in many sectors indicate an improving economic outlook. We are not out of the woods, and we must remain cautious as there is still uncertainty about the epidemic and the trajectory and equity of the recovery. 

“The budget includes significant new resources from federal aid and from tax increases. Higher personal income tax rates on high-income taxpayers will likely increase the volatility of personal income tax collections, and will make combined state and local rates for New York City high-income earners the highest in the nation. Effects on the recovery of New York City and on the state and city budgets must be monitored closely.

“New revenues will support investments in education and health care programs, provide benefits to the middle class, and importantly offer relief to New Yorkers and small businesses who need it, including workers who have been excluded from federal stimulus aid. Helping struggling New Yorkers is essential for an equitable recovery.

“While much of the new resources may be temporary and necessary to meet current needs, it is important that spending not grow to unsustainable levels. The state must plan for the end of emergency federal aid and use new tax resources to fund essential services, to once again begin contributing to rainy day funds and to reduce projected out-year gaps. Long-term alignment of recurring revenues with recurring spending is essential to putting New York’s fiscal house in order.

“My office’s full analysis of the enacted state budget will be released in the following weeks.”

 

Determining the jurisdiction where an individual alleged to have stolen funds from a New York Emergency Medical Squad may be tried for the alleged theft

A resident of Warren County [Petitioner] had served with an Emergency Squad [EMS] that essentially operated in a nearby county. Petitioner was indicted by a Warren County grand jury for alleged grand larceny, petit larceny and falsifying business records for his alleged theft of money from EMS bank accounts at locations in another county. Ultimately a trial was commenced in Warren County with respect three counts of grand larceny in the fourth degree and one count of falsifying business records in the first degree.

In response to Petitioner's supplemental omnibus motion/motion to reargue and reconsider, seeking, among other things, a court order dismissing the remaining counts of the indictment for lack of jurisdiction, Warren County Court held that Warren County was the proper geographical jurisdiction for the retrial of the four remaining counts. Warren County Court subsequently dismissed the count of falsifying business records in the first degree for insufficient evidence.

Petitioner then commenced a CPLR Article 78 proceeding in the Appellate Division seeking a writ of prohibition*to enjoin the prosecution of the three grand larceny counts in Warren County Court. The Warren County District Attorney [DA], in rebuttal, contended, "prohibition does not properly lie as other remedies are available, and that 'particular effect jurisdiction'** was demonstrated by the negative impact of Petitioner's conduct on the availability of emergency medical care in Warren County."

The Appellate Division opined that for "particular effect jurisdiction" to attach under the circumstances underlying this action, the DA was required to establish not only that Petitioner's alleged conduct had a materially harmful impact to the well-being of the Warren County community as a whole, but also that Petitioner intended his conduct to have such an impact, citing People v Fea, 47 NY2d 70.

Noting the decision of the Court of Appeals in People v Ribowsky, 77 NY2d 284, the Appellate Division observed that "[a] defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise". Further, said the Appellate Division, "The burden is on the People to prove by a preponderance of the evidence that the county where the crime is [being] prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable".

Finding that the DA had offered no proof of such intent on the part of Petitioner and had failed to establish that Plaintiff's alleged theft of money in the amount of $3,900 from EMS*** caused such a "materially harmful impact upon the governmental processes or community welfare" of Warren County to justify the extraordinary exercise of "particular effect jurisdiction", the Appellate Division granted Plaintiff's motion seeking the writ of prohibition.

* A writ of prohibition is a written order by a higher court to a lower court typically forbidding the lower court from taking further action in a case then pending before it.

** See §20.10(4) of the Criminal Procedures Law.

*** Described by the Appellate Division as "a nongovernmental entity serving one town within Warren County".

Click HEREto access the Appellate Division's decision.