general constitutional requirement in New York

1988If the justice finds that such contents were otherwise intercepted in accordance with the provisions of this article, he may grant the application.” (Emphasis added.) It has been held that in enacting CPL 700.65 (4) the Legislature obviously intended to engraft the "plain view” exception (see, People v Spinelli, 35 NY2d 77, 80-81 ; Coolidge v New Hampshire, 403 US 443 ) upon the general constitutional requirement that seized evidence must be particularly described in the application for a warrant (People v Di Stefano, 38 NY2d 640, 648 ).

1986In People v Di Stefano ( 38 NY2d 640 ), we interpreted this provision as engrafting the "plain view” exception on the general constitutional requirement that seized evidence be particularly described in the application to intercept communications (id., at p 648).

1988If the justice finds that such contents were otherwise intercepted in accordance with the provisions of this article, he may grant the application.” (Emphasis added.) It has been held that in enacting CPL 700.65 (4) the Legislature obviously intended to engraft the "plain view” exception (see, People v Spinelli, 35 NY2d 77, 80-81 ; Coolidge v New Hampshire, 403 US 443 ) upon the general constitutional requirement that seized evidence must be particularly described in the application for a warrant (People v Di Stefano, 38 NY2d 640, 648 ).

1980If the justice finds that such contents were otherwise intercepted in accordance with the provisions of this article, he may grant the application.” In People v Di Stefano ( 38 NY2d 640, 648 , supra) the Court of Appeals wrote: "By enacting CPL 700.65 (subd 4) the Legislature obviously intended to engraft the ‘plain view’ exception (People v Spinelli, 35 NY2d 77, 80-81 ; Coolidge v New Hampshire, 403 US 443 ) upon the general constitutional requirement that seized evidence must be particularly described in the application for a warrant * * * Since eavesdropping warrants are based on substantia

1988If the justice finds that such contents were otherwise intercepted in accordance with the provisions of this article, he may grant the application.” (Emphasis added.) It has been held that in enacting CPL 700.65 (4) the Legislature obviously intended to engraft the "plain view” exception (see, People v Spinelli, 35 NY2d 77, 80-81 ; Coolidge v New Hampshire, 403 US 443 ) upon the general constitutional requirement that seized evidence must be particularly described in the application for a warrant (People v Di Stefano, 38 NY2d 640, 648 ).

1980If the justice finds that such contents were otherwise intercepted in accordance with the provisions of this article, he may grant the application.” In People v Di Stefano ( 38 NY2d 640, 648 , supra) the Court of Appeals wrote: "By enacting CPL 700.65 (subd 4) the Legislature obviously intended to engraft the ‘plain view’ exception (People v Spinelli, 35 NY2d 77, 80-81 ; Coolidge v New Hampshire, 403 US 443 ) upon the general constitutional requirement that seized evidence must be particularly described in the application for a warrant * * * Since eavesdropping warrants are based on substantia

2025Here, the allegations in defendant's moving papers were insufficient to warrant a hearing ( see Smith , 207 AD3d at 1067 ; Davis , 142 AD3d at 1387-1388).

2025Here, the allegations in defendant's moving papers were insufficient to warrant a hearing ( see Smith , 207 AD3d at 1067 ; Davis , 142 AD3d at 1387-1388).

2021A. We consider first defendants’ due process challenge, namely that the State and Federal Constitutions require more than ordinary negligence as a culpable mental state for imposing criminal liability, relying primarily on the Supreme Court’s decision in Elonis v United States ( 575 US 723 [2015]).3 As an initial matter, the Supreme Court “has never articulated a general constitutional doctrine of mens rea” (Powell v Texas, 392 US 514, 535 [1968]; see Copeland v Vance, 893 F3d 101, 122 [2d Cir 2018] [“the Supreme Court has been at pains not to constitutionalize mens rea”], cert denied 139 S Ct

1995The instant two cases also take the constitutional hook of Matter of PatchogueMedford Congress of Teachers v Board of Educ. ( 70 NY2d 57 , supra), where the assertion of a general constitutional claim in a pleading was used by this Court to reach a specific State constitutional basis for decision, two giant steps beyond that significant jurisprudential outer limit.

1995The instant two cases also take the constitutional hook of Matter of Patchogue-Medford Congress of Teachers v Board of Educ. ( 70 N.Y.2d 57 , supra ), where the assertion of a general constitutional claim in a pleading was used by this Court to reach a specific State constitutional basis for decision, two giant steps beyond that significant jurisprudential outer limit.

1985Thus, the California Supreme Court noted (p 467) that “past decisions of this court establish that this general constitutional principle applies to homosexuals as well as to all other members of our polity; under California law, the state may not exclude homosexuals as a class from employment opportunities without a showing that an individual’s homosexuality renders him unfit for the job from which he has been excluded.” It also asserted that courts in other jurisdictions reached similar conclusions, citing Matter of Kimball ( 33 NY2d 586 ).

1978(People v Di Stefano, 38 NY2d 640 ; People v Iucci, 61 AD2d 1 .) But the amendment of September 23, 1977 did not affect any prior order and at best was purely cosmetic.

1976Since eavesdropping warrants are based on substantially the samé principles applicable to search warrants for physical evidence (see Berger v New York, 388 US 41, 53-60 , supra) and, inasmuch as evidence not described but discovered in the course of a lawful search is under certain circumstances admissible ( Spinelli, supra; Coolidge, supra), it seems only logical for the Legislature to have intended that intercepted communications be treated similarly.

1969Indeed, it has recently been noted that the “ Court has never articulated a general constitutional doctrine of mens rea.” (Powell v. Texas, 392 U. S. 514, 535 .) I recognize the fact that the Supreme Court has upheld a mens rea or scienter requirement in cases involving freedom of speech (e.g., Smith v. California, 361 U. S. 147 ) and freedom of association (e.g., Scales v. United States, 367 U. S. 203 ); however, as noted in Smith v. California (supra), “ [s]till, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element o

1969Indeed, it has recently been noted that the “ Court has never articulated a general constitutional doctrine of mens rea.” (Powell v. Texas, 392 U. S. 514, 535 .) I recognize the fact that the Supreme Court has upheld a mens rea or scienter requirement in cases involving freedom of speech (e.g., Smith v. California, 361 U. S. 147 ) and freedom of association (e.g., Scales v. United States, 367 U. S. 203 ); however, as noted in Smith v. California (supra), “ [s]till, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element o

1965Although the need for notification as a general constitutional requirement was reaffirmed in Ker v. California ( 374 U. S. 23 ), which is the leading case upon the subject, the Supreme Court upheld the lawfulness of a search (even without a warrant) where police officers entered quietly and without announcement in order to prevent the destruction of contraband, adding (pp. 37-38): “ The California District Court of Appeal * * * held that the circumstances here came within a judicial exception which had been engrafted upon the statute by a series of decisions, see, e.g., People v. Ruiz, 146 Cal

1965Although the need for notification as a general constitutional requirement was reaffirmed in Ker v. California ( 374 U. S. 23 ), which is the leading case upon the subject, the Supreme Court upheld the lawfulness of a search (even without a warrant) where police officers entered quietly and without announcement in order to prevent the destruction of contraband, adding (pp. 37-38): “ The California District Court of Appeal * * * held that the circumstances here came within a judicial exception which had been engrafted upon the statute by a series of decisions, see, e.g., People v. Ruiz, 146 Cal

1965Although the need for notification as a general constitutional requirement was reaffirmed in Ker v. California ( 374 U. S. 23 ), which is the leading case upon the subject, the Supreme Court upheld the lawfulness of a search (even without a warrant) where police officers entered quietly and without announcement in order to prevent the destruction of contraband, adding (pp. 37-38): “ The California District Court of Appeal * * * held that the circumstances here came within a judicial exception which had been engrafted upon the statute by a series of decisions, see, e.g., People v. Ruiz, 146 Cal

1965Although the need for notification as a general constitutional requirement was reaffirmed in Ker v. California ( 374 U. S. 23 ), which is the leading case upon the subject, the Supreme Court upheld the lawfulness of a search (even without a warrant) where police officers entered quietly and without announcement in order to prevent the destruction of contraband, adding (pp. 37-38): “ The California District Court of Appeal * * * held that the circumstances here came within a judicial exception which had been engrafted upon the statute by a series of decisions, see, e.g., People v. Ruiz, 146 Cal

1965Although the need for notification as a general constitutional requirement was reaffirmed in Ker v. California ( 374 U. S. 23 ), which is the leading case upon the subject, the Supreme Court upheld the lawfulness of a search (even without a warrant) where police officers entered quietly and without announcement in order to prevent the destruction of contraband, adding (pp. 37-38): “ The California District Court of Appeal * * * held that the circumstances here came within a judicial exception which had been engrafted upon the statute by a series of decisions, see, e.g., People v. Ruiz, 146 Cal

1965Although the need for notification as a general constitutional requirement was reaffirmed in Ker v. California ( 374 U. S. 23 ), which is the leading case upon the subject, the Supreme Court upheld the lawfulness of a search (even without a warrant) where police officers entered quietly and without announcement in order to prevent the destruction of contraband, adding (pp. 37-38): “ The California District Court of Appeal * * * held that the circumstances here came within a judicial exception which had been engrafted upon the statute by a series of decisions, see, e.g., People v. Ruiz, 146 Cal