POLICE BENEVOLENT ASSOCIATION OF NEW YORK STATE TROOPERS INC v. JAMES (2026)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Christina Ryba, J.), entered June 3, 2024 in Albany County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.

Executive Law § 70–b established the Office of Special Investigation (hereinafter OSI) within defendant's office to investigate and, if warranted, prosecute any alleged offense by a peace officer or police officer, whether or not formally on duty, which caused the death of a person.  As relevant here, in July 2021, an off-duty state trooper was driving his private vehicle when another vehicle crossed over the center line of a highway and struck the trooper's vehicle head on.  The trooper and a passenger were seriously injured and the driver of the other vehicle died.¹  Thereafter, plaintiffs commenced this action alleging, among other things, that Executive Law § 70–b is void for vagueness and overbreadth.  Prior to joinder of issue, defendant moved to dismiss the complaint.  Supreme Court granted defendant's motion for lack of standing.  Upon appeal to this Court, defendant conceded that plaintiffs had standing and asked this Court to address the merits (218 A.D.3d 881, 192 N.Y.S.3d 709 [3d Dept 2023] ).  This Court declined that request and remitted the case to allow defendant to serve an answer (id. at 882, 192 N.Y.S.3d 709).  After remittal and service of defendant's answer, defendant moved for summary judgment dismissing the complaint and requesting, among other things, a declaratory judgment in its favor that Executive Law § 70–b is not void for vagueness and overbreadth.  Supreme Court granted defendant's motion for summary judgment, dismissed the complaint and issued a declaration finding, among other things, that Executive Law § 70–b is not unconstitutionally vague or overbroad.  Plaintiff Police Benevolent Association of the New York State Troopers, Inc. (hereinafter the PBA) appeals.²

The PBA contends that Executive Law § 70–b is unconstitutionally vague and overbroad and asks this Court to reverse Supreme Court's determination.  “It is well settled that legislative enactments are entitled to a strong presumption of constitutionality, and courts strike them down only as a last unavoidable result after every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible” (White v. Cuomo, 38 N.Y.3d 209, 216, 172 N.Y.S.3d 373, 192 N.E.3d 300 [2022] [internal quotation marks, brackets and citations omitted] ).  “To rebut that presumption, the party attempting to strike down a statute as facially unconstitutional bears the heavy burden of proving beyond a reasonable doubt that the statute is in conflict with the Constitution” (People v. Viviani, 36 N.Y.3d 564, 576, 145 N.Y.S.3d 512, 169 N.E.3d 224 [2021] [internal quotation marks and citations omitted];  accord Stefanik v. Hochul, 229 A.D.3d 79, 83, 211 N.Y.S.3d 574 [3d Dept 2024], affd 43 N.Y.3d 49, 229 N.Y.S.3d 344, 254 N.E.3d 1217 [2024] ).  “A statute, or a regulation, is unconstitutionally vague if it fails to provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited, and it is written in a manner that permits or encourages arbitrary or discriminatory enforcement” (Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v. New York State Dept. of Fin. Servs., 39 N.Y.3d 56, 63–64, 179 N.Y.S.3d 632, 200 N.E.3d 537 [2022] [internal quotation marks and citations omitted];  accord Matter of Town of Copake v. New York State Off. of Renewable Energy Siting, 216 A.D.3d 93, 106, 191 N.Y.S.3d 181 [3d Dept 2023], appeal dismissed 41 N.Y.3d 990, 211 N.Y.S.3d 258, 234 N.E.3d 1050 [2024] ).  “In pursuing a facial challenge, the complaining party must carry the heavy burden of showing that the statute is impermissibly vague in all of its applications” (Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v. New York State Dept. of Fin. Servs., 39 N.Y.3d at 64–65, 179 N.Y.S.3d 632, 200 N.E.3d 537 [internal quotation marks, brackets and citations omitted];  see Police Benevolent Assn. of the City of New York, Inc. v. City of New York, 40 N.Y.3d 417, 427, 201 N.Y.S.3d 332, 224 N.E.3d 522 [2023] ).

As relevant here, to ensure public confidence in investigations against police officers, the Legislature passed Executive Law § 70–b in 2020, which removed a potential conflict of interest between district attorneys and police officers by assigning the investigations to the office of the Attorney General.  The statute at issue states that “[t]here shall be established within the office of the attorney general an office of special investigation.  Notwithstanding any other provision of law, the office of special investigation shall investigate and, if warranted, prosecute any alleged criminal offense or offenses committed by a person, whether or not formally on duty, who is a police officer ․ or a peace officer[,] ․ concerning any incident in which the death of a person, whether in custody or not, is caused by an act or omission of such police officer or peace officer or in which the attorney general determines there is a question as to whether the death was in fact caused by an act or omission of such police officer or peace officer” (Executive Law § 70–b [1] [emphasis added] ).

Contrary to plaintiff's contention, the Legislature's “failure” to define “formally on duty” does not itself render the law void for vagueness (see Police Benevolent Assn. of the City of New York, Inc. v. City of New York, 40 N.Y.3d at 427, 201 N.Y.S.3d 332, 224 N.E.3d 522;  accord Matter of R.M. v. C.M., 226 A.D.3d 153, 163, 207 N.Y.S.3d 634 [2d Dept 2024] ).  As Supreme Court pointed out, plaintiff's argument “is a red herring” given that “the authority granted by Executive Law § 70–b is conferred upon defendant ‘whether or not’ the [police or peace] officer is ‘formally on duty,’ [thus] it logically follows that defendant need not determine the formality of the [police or peace] officer's duty status in order to exercise its authority.”  Additionally, the statute is “sufficiently definite to provide notice to those regulated and to prevent arbitrary enforcement,” especially given that the police or peace officer's duty status is irrelevant to OSI's jurisdiction (Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v. New York State Dept. of Fin. Servs., 39 N.Y.3d at 66, 179 N.Y.S.3d 632, 200 N.E.3d 537;  see Matter of R.M. v. C.M., 226 A.D.3d at 163, 207 N.Y.S.3d 634).  As such, plaintiff has not met its heavy burden of demonstrating that the statute is unconstitutionally void on its face (see Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v. New York State Dept. of Fin. Servs., 39 N.Y.3d at 66, 179 N.Y.S.3d 632, 200 N.E.3d 537;  Matter of Town of Copake v. New York State Off. of Renewable Energy Siting, 216 A.D.3d at 106–107, 191 N.Y.S.3d 181).  Finally, plaintiff's conclusory assertion that Executive Law § 70–b is constitutionally overbroad lacks merit as it does not infringe on any constitutionally protected conduct (see People v. Stuart, 100 N.Y.2d 412, 422 n 8, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003];  see generally Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v. New York State Dept. of Fin. Servs., 39 N.Y.3d at 69 n 6, 179 N.Y.S.3d 632, 200 N.E.3d 537;  compare Board of Trustees of Vil. of Groton v. Pirro, 152 A.D.3d 149, 157, 58 N.Y.S.3d 614 [3d Dept 2017] ).

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   After an initial investigation, OSI found that the underlying incident involving the death of the driver was not under the jurisdiction of defendant's office because the death of the other driver was not caused by a police officer.

2.   Although the PBA and plaintiff Thomas Mungeer, as president of the PBA, were represented by the same counsel, the notice of appeal is filed only on behalf of the PBA. The caption on the record on appeal and briefs also indicates that Mungeer is not participating in this appeal.

Pritzker, J.

Clark, J.P., Aarons, Reynolds Fitzgerald and Fisher, JJ., concur.