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PROSECUTOR’S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION.

The Fourth Department determined the prosecutor's misstatement concerning the length of post-release supervision did not require reversal because defendant had ample opportunity to raise an objection to preserve the error but did not do so:

Although the prosecutor initially misstated the period of postrelease supervision prior to the plea allocution and the court failed to mention postrelease supervision during the allocution, defendant was aware that the sentence included a postrelease supervision component at the time of the allocution, the court immediately thereafter confirmed the correct agreed-upon sentence, and neither defendant nor defense counsel objected to the period of postrelease supervision or otherwise indicated that there was any misunderstanding with regard to its length. People v Chant, 2016 NY Slip Op 04544, 4th Dept 6-10-16

CRIMINAL LAW PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)/APPEALS (CRIMINAL LAW, PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)/POST-RELEASE SUPERVISION PROSECUTOR'S INCORRECT STATEMENT ABOUT THE LENGTH OF POST-RELEASE SUPERVISION WAS NOT PRESERVED FOR APPEAL BY OBJECTION)

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PEOPLE’S FAILURE TO OBTAIN AN ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE FELONY TO A MISDEMEANOR REQURED VACATION OF THE PLEA AND DISMISSAL OF THE INDICTMENT.

The Fourth Department vacated defendant's plea to a misdemeanor (as a reduced charge) and dismissed the indictment because the People did not take any of the steps required by Criminal Procedure Law 210.20(6):

County Court granted defendant's motion to review the grand jury minutes and, upon that review, concluded that the evidence before the grand jury was not legally sufficient to support [promoting prison contraband first degree] but was sufficient to support the lesser included offense of promoting prison contraband in the second degree. Defendant then pleaded guilty to the lesser included offense.

“CPL 210.20 (6) provides that when a court decides to reduce a count contained in an indictment [to a misdemeanor] on the ground that it is not supported by legally sufficient evidence, the People do one of the following: (1) accept the court's order and file a prosecutor's information containing the reduced charge; (2) re-present the [higher count] to a grand jury; or (3) appeal the court's order” … . Here, however, the People did not take any of those three actions, and defendant pleaded guilty to the reduced charge. Inasmuch as ” [a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution' ” … , the plea must be vacated and the indictment dismissed … . People v Haigler, 2016 NY Slip Op 04584, 4th Dept 6-10-16

CRIMINAL LAW (PEOPLE'S FAILURE TO OBTAIN AN ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE FELONY TO A MISDEMEANOR REQURED VACATION OF THE PLEA AND DISMISSAL OF THE INDICTMENT)/ACCUSATORY INSTRUMENT (CRIMINAL LAW, PEOPLE'S FAILURE TO OBTAIN AN ACCUSATORY INSTRUMENT AFTER THE COURT REDUCED THE FELONY TO A MISDEMEANOR REQUIRED VACATION OF THE PLEA AND DISMISSAL OF THE INDICTMENT)

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EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED; NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW.

The First Department, in a full-fledged opinion by Justice Acosta, over a two-justice dissenting opinion, reversing Supreme Court, determined: (1) although the finding that petitioner had violated work-related requirements under the family assistance program was reversed and the reduction in petitioner's benefits had been restored, the appeal was not moot; (2) the wording of the notices of required meetings for work-assessment under the family assistance program did not violate the Social Services Law; and (3) the propriety of the “autopost” system by which petitioner's failure to attend a scheduled meeting resulted in an automatically posted infraction must be determined in the context of a summary judgment or a trial (not this declaratory judgment action). The dissenters argued the appeal was moot and should not have been heard:

… [W]e find that the notices at issue do not violate the applicable regulatory scheme. In reviewing these notices, we are mindful that “[t]he standard for judicial review of an administrative regulation is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious” … , or contrary to the statute under which it was promulgated … . The party challenging a regulation has the heavy burden of establishing that “it is so lacking in reason for its promulgation that it is essentially arbitrary” … . * * *

The regulation and notices closely track the statute, which focuses on how a recipient can demonstrate good cause for having failed to comply with work requirements. In fact, every requirement set forth in SSL § 341 is incorporated into the notices. The crux of Supreme Court's holding is that the regulation and notices do not satisfy a requirement that recipients be expressly told that they can avoid sanction by asserting compliance. The statute on its face, however, simply contains no such requirement. This is particularly true for the notice of decision, because SSL § 341(1)(b) does not require that the notice give examples of good cause. Under these circumstances, this Court cannot find that 18 NYCRR 385.11 and the notices were unreasonable or arbitrary. Matter of Puerto v Doar, 2016 NY Slip Op 04463, 1st Dept 6-9-16

SOCIAL SERVICES LAW (NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)/FAMILY ASSISTANCE PROGRAM (NYC) (NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)/APPEALS (EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED; NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)

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AN EXAMINATION UNDER OATH (EUO) CAN BE REQUESTED BY THE NO-FAULT INSURER BEFORE THE INSURER RECEIVES A CLAIM FORM FROM THE MEDICAL PROVIDER.

The First Department, over a dissent, in a no-fault insurance case, determined plaintiff insurer's motion for summary judgment (dismissing the provider's claim for first-party no-fault benefits) based upon plaintiff's insured's (Manoo's) failure to appear for three scheduled examinations under oath (EUO's) should have been granted. The court held that an EUO can be requested at any time, and the fact that the first EUO was requested before the insurer received a claim form from the provider was of no consequence:

The record establishes that plaintiff requested Manoo's initial EUO by letter dated February 3, 2012. Although [the provider's] NF-3 form is dated February 7, 2012, plaintiff was entitled to request the EUO prior to its receipt thereof … . The notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to EUOs that are scheduled prior to the insurance company's receipt of a claim form … . Mapfre Ins. Co. of N.Y. v Manoo, 2016 NY Slip Op 04446, 1st Dept 6-9-16

INSURANCE LAW (AN EXAMINATION UNDER OATH (EUO) CAN BE REQUESTED BY THE NO-FAULT INSURER BEFORE THE INSURER RECEIVES A CLAIM FORM)/NO-FAULT INSURANCE (AN EXAMINATION UNDER OATH (EUO) CAN BE REQUESTED BY THE NO-FAULT INSURER BEFORE THE INSURER RECEIVES A CLAIM FORM)

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UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS.

The Third Department, reversing Family Court, determined uncle should have been allowed to intervene in neglect proceedings to seek custody of the children who had been removed from the home:

There is no question that the uncle is authorized to seek intervention under the statute; he is one of the enumerated relatives permitted to pursue such relief, and both respondent and the child's father (among others) consented to his appearance in the proceeding. Nor does Family Ct Act § 1035 (f) limit the right of intervention to only the fact-finding and dispositional hearings held on a pending Family Ct Act article 10 neglect petition. Quite the contrary, it broadly permits a qualified relative seeking temporary or permanent custody of the child to participate “in all phases of dispositional proceedings” (Family Ct Act § 1035 [f] [emphasis added]). Furthermore, a permanency hearing is plainly dispositional in nature. A dispositional hearing is defined as “a hearing to determine what order of disposition should be made” (Family Ct Act § 1045), and Family Ct Act § 1089 (d) provides that, “[a]t the conclusion of each permanency hearing, the court shall . . . determine and issue its findings, and enter an order of disposition in writing.” Family Court seemed to acknowledge all of this, but reasoned that intervention was not permitted because the dispositional phase of the proceeding terminated upon completion of the dispositional hearing concerning the article 10 petition and the issuance of an order pursuant to Family Ct Act § 1052 (a). This was error. Matter of Demetria FF. (Tracy GG.), 2016 NY Slip Op 04499, 3rd Dept 6-9-16

FAMILY LAW (UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS)/NEGLECT (UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS)/CUSTODY UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS)

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COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR.

The Third Department, in a full-fledged opinion by Justice Devine, determined the Commissioner of Labor had the authority to mandate a minimum wage ($15 an hour) for certain fast food workers in New York:

The Commissioner is authorized to make the assessment as to whether the minimum wage should be increased for employees in specific occupations, does so with help from an agency having special competence in the area and a wage board tasked with investigating the relevant questions as set forth by the Legislature, and thereafter issues a wage order setting a minimum wage in a specific occupation if such would further the policy objectives delineated by statute. The Commissioner complied with that procedure, and the fact that the Legislature failed to agree on an increase in the statutory minimum wage in the leadup to the issuance of the wage order in no way reflects dispute or confusion as to the longstanding authority of the Commissioner to set a minimum wage for employees in a given occupation … . Matter of National Rest. Assn. v Commissioner of Labor, 2016 NY Slip Op 04498, 3rd Dept 6-9-16

EMPLOYMENT LAW (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/LABOR LAW (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/MINIMUM WAGE (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)/FAST FOOD WORKERS (COMMISSIONER OF LABOR PROPERLY ISSUED A WAGE ORDER INCREASING THE MINIMUM WAGE FOR CERTAIN FAST FOOD WORKERS TO $15 AN HOUR)

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PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL.

The Third Department, reversing the conviction, determined preclusion of defendant’s medical evidence in this driving while intoxicated case was an abuse of discretion and the prosecutor’s cross-examination defendant and summation were improper:

“Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction” … . … Here, County Court’s own inquiry readily identified measures to alleviate any prejudice to the People … . Since a less drastic remedy was readily available, we conclude that the outright preclusion of this evidence was an abuse of discretion. …

… During cross-examination, the prosecutor utilized documentation provided by the defense to question defendant as to his winning an Iron Man … and his being recommended for enrollment in the US Army Ranger School … . Certainly this questioning was an accurate portrayal of defendant’s physical fitness prior to being injured during his military service and fair game to a point as to whether defendant was capable of performing the field sobriety tests. The portrayal, however, disregards defendant’s actual medical condition as shown in the precluded medical records. This discrepancy came to a head during summation, where the prosecutor stated, “I just didn’t really know what to make” of defendant’s claimed impairments. She continued, “I’m surprised” given defendant’s Iron Man award, and concluded, “I don’t understand what happened . . . when he couldn’t perform a standardized field sobriety test. It just doesn’t make any sense to me.”

A prosecutor may not, even during summation, express his or her personal opinion challenging the veracity of the evidence … . To express personal surprise as to defendant’s claim of incapacity, while in possession of defendant’s medical records, was disingenuous and improper.  People v O’Brien, 2016 NY Slip Op 04471. 3rd Dept 6-9-16

CRIMINAL LAW (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/ATTORNEYS (CRIMINAL LAW, IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)/PROSECUTORIAL MISCONDUCT (PRECLUSION OF DEFENDANT’S MEDICAL RECORDS AND IMPROPER CROSS-EXAMINATION AND SUMMATION REQUIRED REVERSAL)

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MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

The Third Department determined defendant's motion to vacate his conviction on ineffective assistance grounds should not have been denied without a hearing:

To establish entitlement to a hearing, a defendant must demonstrate that “non-record facts set forth in [a] CPL article 440 motion . . . are material and [that], if established, they would entitle him [or her] to relief” … . Defendant's most significant sworn allegation is that counsel failed to watch the entire recording of his interview with law enforcement — or to read the entire transcript of that interview — prior to waiving any challenge to its admissibility and making assurances to the jury during opening remarks as to the contents of that recording. Notably, defendant's father also submitted a sworn statement suggesting that counsel may not have been familiar with the contents of the recorded police interview. Further, defendant made factual allegations concerning the circumstances surrounding that interview that would, if credited, support a finding that it was, at least in part, a custodial interrogation, which is relevant because a strategic decision whether to seek suppression would have required being sufficiently familiar with the contents of that recording … . Defendant also alleged a number of specific deficiencies in counsel's assistance during the plea bargaining and trial stages which, if credited, may entitle him to relief … , including that counsel failed to timely convey a plea offer … . Defendant further avers that counsel made unqualified assurances regarding a favorable outcome if he went to trial and made specific assurances concerning the sentence that would be imposed if he were convicted after trial. In regard to counsel's pretrial actions, defendant averred that, but for counsel's false assurances and inadequate representation, he would have accepted a plea deal. Taken as a whole, we find that defendant provided sufficient sworn, material statements in support of his motion that, if credited, would establish that he received less than meaningful representation … . People v Sposito, 2016 NY Slip Op 04467, 3rd Dept 6-9-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/ATTORNEYS (CRIMINAL LAW, MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)

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FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED.

The Third Department determined the failure to grant defendant's for cause challenge to a juror required reversal:

During the course of jury selection, prospective juror No. 15 expressed concern regarding a potential witness's prior criminal “track record.” After initially indicating that he might be influenced “greatly” by a witness's criminal record, County Court explained to prospective juror No. 15 — and the rest of the panel — that the jury could take into consideration a witness's prior criminal conviction in assessing whether the jury believed the testimony offered by that witness. When asked by County Court whether he could follow the court's instruction on that point, prospective juror No. 15 replied, “Oh, yes, yes.” Upon further inquiry by defense counsel, however, prospective juror No. 15 explained that if he were to learn that defendant [*5]previously had engaged in the same or similar offenses as those charged in the indictment, he “might be swayed” by what he would view “as a continuous track record.” When asked how such knowledge would affect his thinking, prospective juror No. 15 replied, “Negatively.” Defense counsel then inquired, “Negatively towards?,” in response to which prospective juror No. 15 stated, “Guilty.” When defense counsel asked, “Just by virtue of a [prior] record?,” the prospective juror replied, “Yes, of a continuous criminal record, yes.” Other than County Court's general inquiry as to the panel's ability to follow the law as charged by the court, no further questioning of this juror occurred and no unequivocal assurances of impartiality were elicited. People v Cuevas, 2016 NY Slip Op 04468, 3rd Dept 6-9-16

CRIMINAL LAW (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED)/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED)/FOR CAUSE JUROR CHALLENGE (FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED)

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POLICY MEMORANDUM FROM NEW YORK STATE HEALTH INSURANCE PROGRAM AMOUNTED TO A RULE OR REGULATION WHICH MUST BE FILED WITH THE DEPARTMENT OF STATE; BECAUSE IT WAS NEVER FILED THE FOUR-MONTH STATUTE OF LIMITATIONS TO CONTEST THE POLICY NEVER STARTED TO RUN.

The Third Department determined the four month statute of limitations for challenging a policy announced by the New York State Health Insurance Plan (NYSHIP) never started to run because the policy memorandum amount to a rule or regulation which was never filed with the Department of State:

Here, the policy memorandum broadly and invariably affects “that segment of the ‘general public’ over which” the State respondents have authority, inasmuch as it applies to all individuals eligible for NYSHIP coverage who seek to participate in the health insurance buyout program … . Furthermore, the pronouncement that all those who decline their own NYSHIP coverage are now ineligible for the buyout program if their alternative coverage — e.g., through a spouse — is also a NYSHIP plan, clearly reflects “a firm, rigid, unqualified standard or policy” that effectively “carves out a course of conduct for the future” … . Consequently, we find that the policy memorandum constitutes a “rule or regulation” within the meaning of NY Constitution, article IV, § 8 and Executive Law § 102 (1) (a). As such, it is invalid and without effect until it is filed with the Department of State … . Matter of Plainview-Old Bethpage Congress of Teachers v New York State Health Ins. Plan, 2016 NY Slip Op 04473, 3rd Dept 6-9-16

 

CIVIL PROCEDURE (POLICY MEMORANDUM FROM NEW YORK STATE HEALTH INSURANCE PROGRAM AMOUNTED TO A RULE OR REGULATION WHICH MUST BE FILED WITH THE DEPARTMENT OF STATE, BECAUSE IT WAS NEVER THE FILED FOUR-MONTH STATUTE OF LIMITATIONS TO CONTEST THE POLICY NEVER STARTED TO RUN)/EMPLOYMENT LAW (POLICY MEMORANDUM FROM NEW YORK STATE HEALTH INSURANCE PROGRAM AMOUNTED TO A RULE OR REGULATION WHICH MUST BE FILED WITH THE DEPARTMENT OF STATE, BECAUSE IT WAS NEVER THE FILED FOUR-MONTH STATUTE OF LIMITATIONS TO CONTEST THE POLICY NEVER STARTED TO RUN)

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