New York

(information last updated Fall 2017)

Ongoing Projects:

State Project:

DEC runs a voluntary water quality monitoring program that focuses on the state’s rivers and streams: Water Assessments by Volunteer Evaluators (WAVE).  See Water Assessments by Volunteer Evaluators, N.Y. Dep’t of Envtl. Conservation, http://www.dec.ny.gov/chemical/92229.html (last visited Apr. 10, 2017).  Through WAVE, volunteers monitor macroinvertebrate populations, using them as indicator species for water quality.  See id.; see also generally Charles Gottlieb, et al., Bug Catching for the State, 32 Va. Envtl. L. J. 61 (2014).  We were unable to find statutory authorization for WAVE, which DEC appears to have created on its own initiative.

State Project:

The New York Department of Environmental Conservation (DEC) “shall establish a program which shall be known as the ‘citizens statewide lake assessment program [(CSLAP)].’  The purpose of this program is to establish a network of volunteers . . . [who] will sample the assigned lakes on a weekly basis between May and September.”  N.Y. Envtl. Conserv. Law § 17-0305.

Trespassing Laws:

Criminal Liability for Trespass Despite Lack of Notice:

No.  Entry “upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders” is licensed “unless notice against trespass is personally communicated . . . or . . . given by posting in a conspicuous manner.”  N.Y. Penal Law § 140.00; see also id. §§ 140.05–140.10.

Stalking Laws:

Criminal Law:

“A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:

    1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted; or

    2. causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person's immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or

    3. is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.”  N.Y. Penal Law § 120.45.

Use of Information:

Although our research is incomplete, these provisions could be construed to allow the use of information collected by citizens.

Explicitly Allows:

“In case any written complaint shall be filed with the commissioner and he shall have cause to believe . . . that any person is violating any code, rule or regulation [governing air pollution] . . . [she] shall cause a prompt investigation thereof to be made.”  N.Y. Envtl. Conserv. Law § 19-0503.

Explicitly Allows:

The DEC has been tasked with running CSLAP, a volunteer water quality monitoring program.  See N.Y. Envtl. Conserv. Law § 17-0305.  DEC “shall prepare an annual report which will include a summary of the information collected on the monitored waters during the previous season.  This information shall be distributed to the program participants and other interested parties.”  Id.

Evidentiary Standards:

Pleading a Claim:

“Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.”  N.Y. C.P.L.R. 3013.

Authentication or Chain of Custody:

There is no equivalent general provision to FRE 901 in the NY CPLR; although, there are specific rules for authenticating specific types of evidence. Additionally, these methods of authentication are not exclusive and correspond with standards used in other states and the federal courts.  See People v. Patterson, 93 N.Y.2d 80, 104 (N.Y. 1999).  Photographs and other records can be authenticated by witnesses of the recorded events, operators or installers, or by expert testimony that the evidence truly and accurately represents what was before the camera.  See id.; see also N.Y. C.P.L.R. 45; People v. Byrnes, 33 N.Y.2d 343 (N.Y. 1974).

Expert Testimony:

Frye standard.  See People v. Wesley, 633 N.E.2d 451 (N.Y. 1994).

Discussion

Please note that this discussion is not moderated by the Emmett Environmental Law & Policy Clinic.