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THE EXISTENCE OF A VIDEOTAPE OF THE ALLEGED MISBEHAVIOR-INCIDENT, REQUESTED BY THE PETITIONER, SHOULD HAVE BEEN INVESTIGATED BY THE HEARING OFFICER, NEW HEARING ORDERED (THIRD DEPT).

The Third Department, ordering a new hearing, determined the petitioner’s request for a videotape of the alleged misbehavior-incident should have been looked into by the hearing officer. The hearing officer asserted no videotape existed, but a document indicated a videotape had been preserved:

Petitioner requested the videotape from his employee assistant and at the hearing. Although the Hearing Officer informed petitioner that no videotape existed, the record contains a facility Video Preservation Form indicating that a videotape, taken in the area of the incident on the date in question, was preserved. Inasmuch as the record does not indicate that the Hearing Officer undertook any measures to ascertain whether the videotape existed, we find that petitioner’s request was improperly denied … . Matter of Espinal v Annucci, 2019 NY Slip Op 06670, Third Dept 9-19-19

 

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THE FELONY COMPLAINT CHARGED DEFENDANT WITH RAPE FIRST (FORCIBLE COMPULSION); THE SUPERIOR COURT INFORMATION (SCI) CHARGED RAPE THIRD (LACK OF CONSENT); BECAUSE RAPE THIRD AS CHARGED IN THE SCI WAS NOT A LESSER INCLUDED OFFENSE OF RAPE FIRST AS CHARGED IN THE FELONY COMPLAINT, THE WAIVER OF INDICTMENT AND SCI WERE JURISDICTIONALLY DEFECTIVE (THIRD DEPT). ​
DEFENDANT WAS ENTITLED TO THE ASSIGNMENT OF NEW COUNSEL BASED UPON COUNSEL’S REMARK THAT DEFENDANT’S REQUEST TO WITHDRAW HIS PLEA WAS UNWARRANTED; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY ABOUT DEFENDANT’S REQUEST FOR SUBSTITUTE COUNSEL AND HIS REQUEST TO WITHDRAW HIS PLEA; MATTER REMITTED FOR ASSIGNMENT OF NEW COUNSEL AND A SUFFICIENT INQUIRY BY THE JUDGE (THIRD DEPT).
COUNTY WHICH HAS A WRITTEN-NOTICE PREREQUISITE FOR TRAFFIC-ACCIDENT ACTIONS STEMMING FROM ROAD DEFECTS MAY BE STILL BE LIABLE ABSENT WRITTEN NOTICE UNDER THE HIGHWAY LAW IF IT OTHERWISE HAD NOTICE OF THE DEFECTS (THIRD DEPT).
NONPUBLIC RESIDENTIAL HEALTH CARE FACILITIES NEED PERMISSION TO WITHDRAW EQUITY OR TRANSFER ASSETS IN EXCESS OF 3% OF THE FACILITIES’ REVENUE; CORPORATE OWNERS NEED NOT INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION; FACILITIES OWNED BY PASS-THROUGH ENTITIES (I.E., LIMITED LIABILITY COMPANIES) MUST INCLUDE FEDERAL AND STATE INCOME TAXES IN THE 3% CALCULATION (THIRD DEPT).
Misbehavior Report Did Not Supply Sufficient Notice of Alleged Offense
THERE WAS NO PROOF DEFENDANT WAS NOTIFIED OF THE SORA RISK-LEVEL ASSESSMENT HEARING AND VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT; THE DUE PROCESS ISSUE NEED NOT BE PRESERVED FOR APPEAL BECAUSE DEFENDANT DID NOT HAVE THE OPPORTUNITY TO OBJECT; LEVEL-THREE RISK-LEVEL ASSESSMENT REVERSED (THIRD DEPT). ​
THE TIME PERIOD FOR LEARNING THE IDENTITY OF DEFENDANTS DOES NOT BEGIN TO RUN WHEN A PLAINTIFF RETAINS COUNSEL, HERE THE ACTION WAS COMMENCED WHEN COUNSEL WAS RETAINED THREE DAYS BEFORE THE EXPIRATION OF THE STATUTE OF LIMITATIONS, THE COMPLAINT NAMED DEFENDANTS AS ‘JOHN DOES’ WHO WERE NOT IDENTIFIED UNTIL AFTER THE STATUTE HAD RUN, THE ACTION WAS DEEMED TIME-BARRED (THIRD DEPT).
Request for Employees’ Names and Addresses Not Allowed Under Balancing Test (Privacy versus Public Interest)

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