19-1129

Joseph Cracco v. Cyrus R. Vance, Jr., et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

25th day of November, two thousand twenty.

Present: AMALYA L. KEARSE

ROSEMARY S. POOLER,

GERARD E. LYNCH,

 Circuit Judges.

_____________________________________________________

JOSEPH CRACCO,

Plaintiff-Appellee,

v. 19-1129-cv

CYRUS R. VANCE, JR.,

Defendant-Appellant,

CITY OF NEW YORK, POLICE OFFICER JONATHAN CORREA,

SHIELD 7869, TRANSIT DIVISION DISTRICT 4, 

POLICE OFFICERS JOHN DOE,

Defendants.

_____________________________________________________

Appearing for Appellant: Elizabeth N. Krasnow, Assistant District Attorney (Patricia 

J. Bailey, Assistant District Attorney, on the brief) for

Cyrus R. Vance, Jr., New York County District Attorney, 

New York, N.Y.
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Appearing for Appellee: James M. Maloney, Port Washington, N.Y.

Appearing for Amicus Curiae: Daniel L. Schmutter, Hartman & Winnicki, P.C., 

Knife Rights Foundation, Inc. Ridgewood, N.J., amicus curiae in support of PlaintiffAppellee.

Appeal from the United States District Court for the Southern District of New York

(Crotty, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is VACATED and 

REMANDED with instructions to DISMISS the complaint as moot.

The District Attorney for New York County appeals from the March 28, 2019 judgment 

of the United States District Court for the Southern District of New York (Crotty, J.) granting 

summary judgment to Cracco and denying the district attorney’s cross-motion for summary 

judgment. We assume the parties’ familiarity with the underlying facts, procedural history, and 

specification of issues for review.

Following his arrest and conviction for violating Section 265.01(1) of New York Penal 

Law, which prohibits possession of gravity knives, Cracco filed this action, seeking (among 

other things) a declaration that New York’s prohibition of gravity knives was unconstitutionally 

vague. After the dismissal of various other claims, and other procedural developments irrelevant 

here, the district court granted Cracco’s motion for summary judgment. The district attorney 

appealed. While the appeal was pending, the New York Legislature repealed the prohibition of 

gravity knives through Assembly Bill 5944, deleting from the Penal Law the contested 

prohibition in Section 265.01(1). In consequence, the district attorney argues that the case is now 

moot. We agree.

For a federal court to adjudicate a case, “an actual controversy must be extant at all stages 

of review, not merely at the time the complaint is filed.” Arizonans for Off. Eng. v. Arizona, 520 

U.S. 43, 67 (1997). Mootness is “standing set in a time frame: The requisite personal interest that 

must exist at the commencement of the litigation (standing) must continue throughout its 

existence (mootness).” Id. at 68 n.22 (citation and internal quotation marks omitted). 

“Constitutional challenges to statutes are routinely found moot when a statute is amended.” 

Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 61 (2d Cir. 1992).

Cracco concedes that as of today, there is no live case or controversy but argues that because 

there was a live case or controversy at the time the district court rendered its judgment, the case 

is not moot. This argument fails. There must be a live case or controversy “through all stages of 

federal judicial proceedings, trial and appellate.” See Keepers, Inc. v. City of Milford, 807 F.3d 

24, 44 (2d Cir. 2015) (citation and internal quotation marks omitted).

Cracco also argues that the case is not moot because New York Assembly Bill 5944 did 

not repeal the definition of gravity knives found in Section 265.00(5). While correct, this does 

not satisfy the live case or controversy requirement. The district attorney notes that the 
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challenged criminal prohibition “no longer exists,” and there are no statutes that would allow

prosecution based only on the definition of a gravity knife. Appellant’s Br. at 27-29. Cracco does 

not identify any statutes that are enforceable by the district attorney based on the definition of 

“gravity knife” provided in Section 265.00(5). The relief that Cracco sought included a 

declaration that Sections 265.00(5) and 265.01(1) of the Penal Law are void for vagueness as 

applied to “criminal prosecutions for the simple possession of any folding knife” with certain 

characteristics. App’x at 78-79. The relief was tied to future criminal prosecutions. The repeal of 

the penal law provisions prohibiting the possession of gravity knives removes future criminal 

prosecutions from the equation.

No exception to the mootness doctrine applies. For example, this is not a case where the 

defendant is claiming that its voluntary compliance moots the case—the District Attorney 

functions separately from the New York legislature. There is also no evidence that New York 

will reenact the penal law prohibitions on possession of gravity knives if this court determines 

that the appeal is moot. New York is not a party to this proceeding and lacks any incentive to 

modify the law once this appeal concludes. See Lillbask ex rel. Mauclaire v. Conn. Dep’t of 

Educ., 397 F.3d 77, 91-92 (2d Cir. 2005) (claim mooted by repeal of offending portion of statute 

because nothing in record indicated plan to reinstate repealed portion) (collecting cases); see also 

Lamar Advert. of Penn, LLC v. Town of Orchard Park, New York, 356 F.3d 365, 377 (2d Cir. 

2004) (“Mindful of the deference due the legislative body, we are hesitant to hold that a 

significant amendment or repeal of a challenged provision that obviates the plaintiff’s claims 

does not moot a litigation, absent evidence that the defendant intends to reinstate the challenged 

statute after the litigation is dismissed . . . .”).

The parties dispute whether the district court’s order should be vacated if moot. We find 

that it should. “Our ordinary practice in disposing of a case that has become moot on appeal is to 

vacate the judgment with directions to dismiss. However, in instances where the mootness is 

attributable to a change in the legal framework governing the case, and where the plaintiff may 

have some residual claim under the new framework that was understandably not asserted 

previously, our practice is to vacate the judgment and remand for further proceedings in which 

the parties may, if necessary, amend their pleadings or develop the record more fully.” New York 

State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1526 (2020) (citations and 

internal quotation marks omitted). “To determine whether vacatur is appropriate, we must look at 

the equities of the individual case.” Hassoun v. Searls, No. 20-2056-cv, 2020 WL 5637598, at *5 

(2d Cir. Sept. 22, 2020) (citation and internal quotation marks omitted). Vacatur is “generally 

appropriate where mootness arises through happenstance, or the unilateral action of the party 

prevailing below, but not where the appellant moots the case by settlement or withdrawing the 

appeal.” Id. at *6 (citation and internal quotation marks omitted). “The reason for this is . . . to 

avoid giving preclusive effect to a judgment never reviewed by an appellate court.” New York 

City Emps.’ Ret. Sys. v. Dole Food Co., 969 F.2d 1430, 1435 (2d Cir. 1992).

Cracco does not assert residual claims under the new statutory framework that he could 

not assert previously, as the repeal removed not only Section 265.01(1) but all other penal law 

provisions attaching criminal consequences to the possession of gravity knives. Instead, Cracco 

argues that vacatur is unwarranted and inequitable under U.S. Bancorp Mortg. Co. v. Bonner 

Mall P’ship, 513 U.S. 18, 23-24 (1994). Bancorp involved a motion to vacate after a settlement 
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between the parties. 513 U.S. at 28. The Court found that the petitioner’s “voluntary forfeiture of 

review” through settlement constituted a failure of equity. Id. at 26. Here, the district attorney did 

not voluntarily forfeit review of the district court’s decision. There is no reason to depart from 

our traditional course of vacatur with an instruction to dismiss.

We have considered the remainder of the parties’ arguments and find them to be without 

merit. Accordingly, we dismiss the appeal as moot. The judgment of the district court hereby is 

VACATED and REMANDED with an instruction to dismiss the complaint as moot.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk