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Reporter Was Employee

The Third Department determined claimant, a reporter who worked for a company which produces news reports and shows for television (Everest), was an employee entitled to unemployment insurance benefits:

The record establishes that claimant routinely worked Tuesday through Thursday each week. On these days, Everest would inform claimant in the morning of what her reporting assignment was for that day and whether any story idea she suggested had been approved by Everest. If she refused to perform any of the approved story ideas, she would not work or be paid on that day. Claimant was then required to submit her finished report by a specific time … . Everest provided claimant with support staff to assist in her work, including a videographer, and provided her with camera equipment, access to its electronic news database and graphics and background videos, and a computer for editing purposes … . Everett also reviewed and edited claimant’s work product and could direct her to make revisions or to add graphics to her video reports … . Claimant was also free to use her own video camera operator, but Everest reimbursed claimant for that cost … and retained ownership of claimant’s stories and reports. Although there was also evidence in the record that could have supported a contrary conclusion, the foregoing amply furnished indicia of control over claimant’s activities sufficient to support the Board’s conclusion of an employer-employee relationship… . Matter of Redwoodturral (Everest Prod. Corp.–Commissioner of Labor, 2015 NY Slip Op 08482, 3rd Dept 11-19-15

 

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Defendant Implicitly Consented to a Mistrial on Two of Three Counts by Requesting a Partial Verdict

The Court of Appeals, reversing the Appellate Division, determined the defendant, by requesting a partial verdict on the count on which the jury had reached a verdict, had consented to a mistrial on the two remaining counts and, therefore, had waived double jeopardy protection for those two counts:

After one juror was found unable to serve, defendant refused to substitute an alternate juror and requested a partial verdict on the one count on which the jury had indicated it had reached a verdict. The Appellate Division granted the [defendant’s] petition [prohibiting retrial] on the basis that there was no manifest necessity for a mistrial and did not address the issue of consent. Because defendant implicitly consented to a mistrial on two of three counts by requesting a partial verdict and by saying nothing about the court’s plans for retrial … , we need not reach the issue of manifest necessity. Matter of Gentil v Margulis, 2015 NY Slip Op 08455, CtApp 11-19-15

 

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Truck Driver Was Employee

The Third Department determined claimant truck driver was an employee of RB Humphreys and was therefore entitled to unemployment insurance benefits:

Here, claimant entered a lease purchase agreement for use of a truck owned by RB Humphreys. RB Humphreys retained exclusive use of the vehicle while under lease and did not relinquish the title until the full purchase price was paid. RB Humphreys set the pay rate for claimant, who, absent negligence on his part, was paid regardless of whether the customer ultimately paid RB Humphreys. Although claimant could refuse assignments, testimony established that his lease purchase agreement would be terminated if an assignment was not accepted within a certain period of time. Furthermore, pursuant to the service contract with RB Humphreys, claimant was subject to a one-year noncompete clause following the cessation of their relationship. Matter of Wilder (RB Humphreys Inc.–Commissioner of Labor), 2015 NY Slip Op 08487, 3rd Dept 11-19-15

 

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Use of Stolen New York City Transit Authority (NYCTA) Key to Allow Persons to Enter the Subway System for a Small Fee Deprived the NYCTA of Its Property and Therefore Constituted Petit Larceny

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, determined the misdemeanor information adequately alleged petit larceny based upon the defendant’s use of a stolen New York City Transit Authority (NYCTA) key to allow two people to enter the subway system in return for a small fee. The issue was whether the information alleged that the NYCTA was the “owner” of the fees paid to the defendant. The case turned on distinguishing People v Hightower (18 NY3d 249) where the court held the use of a legally purchased MetroCard to swipe persons through a subway turnstile (for a fee) did not constitute petit larceny because the NYCTA did not own the card and therefore no property was taken from the NYCTA. The fact that the NYCTA key was stolen was the distinguishing factor. The dissent, however, did not see the distinction. The majority wrote:

… [T]he information adequately alleged all the elements of a larceny in setting forth defendant’s unauthorized use of the illegally-obtained key to allow the undercover officers to enter through the emergency exit gate in exchange for money, thereby depriving the NYCTA, as the owner, of its property. People v Matthew P., 2015 NY Slip Op 08454, CtApp 11-19-15

 

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Employer Was Not Prejudiced by Claimant’s Failure to Give Timely Notice of the Accident, Claim Allowed

The Third Department determined the claimant’s failure to provide timely notice of the accident did not bar his claim:

Failure to provide timely written notice of an accident to an employer pursuant to Workers’ Compensation Law § 18 generally bars the claim “unless the Board excuses that failure on the ground that notice could not be given, the employer or its agent had knowledge of the accident, or the employer was not prejudiced” … . Here, although claimant did not provide written notice of the January 2, 2012 accident to the employer, he filed his claim for benefits based upon that accident with the Workers’ Compensation Board on January 31, 2012. On February 6, 2012, the Board provided its Notice of Case Assembly to the employer, which informed the employer of the claim, the date of the accident and that claimant was alleging injuries to his head, neck and back. Notably, the record reflects that claimant received prompt medical attention, including MRIs of his lumbar and cervical spine in February 2012. Under these circumstances, substantial evidence supports the decision of the Board that the short delay between the expiration of the 30-day notice period and the employer receiving notice of the claim did not prejudice the employer so as to prevent it from properly investigating the claim … . Matter of Lopadchak v R.W. Express LLC, 2015 NY Slip Op 08490, 3rd Dept 11-19-15

 

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Enhanced Sentencing for Second Child Sexual Assault Felony Offenders Is Required by Penal Law 70.07; Language in Criminal Procedure Law 400.19 Can Not Be Interpreted to Mean the People Can Decide Not to Seek the Enhanced Sentence

The Court of Appeals, in a full-fledged opinion by Judge Rivera, in affirming defendant’s conviction and sentencing, discussed ineffective assistance, prosecutorial misconduct, and statutory interpretation issues. The ineffective assistance and prosecutorial misconduct discussions are fact-specific and not summarized here. With respect to the statutory interpretation issue, the defendant argued he should not have been sentenced as a second child sexual assault felony offender because the People were required to file a predicate statement (notifying him an enhanced sentence would be sought) prior to trial and did not do so. The court determined the statutory language indicating the predicate statement “may” be filed any time before trial (in Criminal Procedure Law [CPL] 400.19) did not preclude the People from filing the statement after trial started, and did not indicate the People had the discretion not to seek an enhanced sentence:

The explicit language in section one [of Penal Law 70.07] states that a person convicted of a felony offense for sexual assault against a child, who has a predicate felony conviction for child sexual assault, “must be sentenced” in accordance with Penal Law § 70.07 sentencing provisions. The applicable time for invoking the procedures contained in CPL 400.19 does not change the import of the mandatory language in Penal Law § 70.07, which subjects this category of offenders to legislatively promulgated enhanced sentences. Furthermore, the specific language in CPL 400.19 (2) upon which defendant relies merely permits filing of the statement before commencement of a trial. It does not prohibit filing afterwards, and before sentencing. As courts have concluded, “may” does not mean “must” … . Notwithstanding defendant’s requests that we read the statute otherwise, this Court is without authority to read mandatory language into a statute where it is otherwise absent … . People v Wragg, 2015 NY Slip Op 08453, CtApp 11-19-15

 

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Carrier’s Waiver of Lien on Third-Party Settlement Is Not “Compensation” Upon Which an Award of Attorneys Fees Can Be Based

The Third Department determined the negotiation of a waiver of the carrier’s lien on a third-party settlement was not “compensation” upon which an award of attorneys fees can be based:

Pursuant to Workers’ Compensation Law § 24, counsel fees approved by the Board “shall become a lien upon the compensation awarded” and compensation is defined as “the money allowance payable to an employee or to his [or her] dependents as provided for in this chapter” (Workers’ Compensation Law § 2 [6]). Claimant contends that the carrier’s waiver of its lien against the third-party settlement is equivalent to a payment of compensation and counsel fees based upon services provided in securing the waiver should be approved. While “the term ‘compensation’ should be liberally construed to advance the interest of injured employees” …, we find no abuse of the Board’s discretion in its finding that a waiver by a workers’ compensation carrier of a lien against a third-party recovery is not compensation within the meaning of the Workers’ Compensation Law … . Although claimant does benefit from the waiver of the lien, the benefit derived relates to the third-party proceeds and not to compensation awarded him under the Workers’ Compensation Law. Accordingly, the Board’s refusal to award counsel fees will not be disturbed. Matter of Pickering v Car Win Constr., Inc., 2015 NY Slip Op 08484, 3rd Dept 11-19-15

 

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Where Defendant Was Released on a Writ of Habeas Corpus, the Relevant Period of Incarceration Can Not Be Excluded from the Ten-Year Second Violent Felony Offender Calculation; Without That Exclusion, Defendant Could Not Be Sentenced as a Second Felon

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined (1) Criminal Procedure Law (CPL) 120.90, requiring a quick arraignment after arrest, only applies where the defendant is arrested by police officers (here corrections officers told defendant of his arrest); (2) CPL 190.50, requiring notice of a grand jury presentation, does not apply where defendant has not been arraigned in a local court; and (3) the 442 days defendant was incarcerated for a parole violation could not be excluded from the ten-year “second violent felony offender” calculation because he was released from that incarceration on a writ of habeas corpus. Without that 442-day exclusion, defendant’s prior conviction was older than ten years and he could not be sentenced as a second felon:

A defendant who stands convicted of a violent felony may be adjudicated a second violent felony offender if he was previously convicted of a violent felony within ten years of the current offense (see Penal Law § 70.04[1][b][iv]). “[A]ny period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony” is excluded from the ten-year calculation (Penal Law § 70.04[1][b][v]). * * *

Although the habeas court did not vacate defendant’s conviction for a parole violation, it did grant his immediate release from confinement after determining that “the evidence did not support” defendant’s incarceration. A person “illegally imprisoned or otherwise restrained in his liberty . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance” (CPLR 7002[a]). If a judge considering the habeas petition determines that a person has been unlawfully detained, he “shall . . . issue a writ of habeas corpus for the relief of that person” (id.). That the habeas court in this case granted defendant’s immediate release based on a lack of evidence indicates that defendant was “imprisoned without reason” from 1992-1993. People v Small, 2015 NY Slip Op 08457, CtApp 11-19-15

 

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Presumption of Vindictive Sentencing Did Not Apply Here Where Defendant Rejected a Plea Offer with a Sentence of Ten Years Probation and, After Trial, Was Sentenced to 10 to 20 Years in Prison

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissent, determined defendant was not entitled to the presumption of vindictive sentencing. Defendant, in this rape case, was offered a plea to a D felony and 10 years probation. The defendant went to trial and was sentenced to 10 to 20 years in prison. The court explained that the presumption of vindictive sentencing, which has been applied to sentencing upon retrial after a successful appeal, did not apply in this case:

“[C]riminal defendants should not be penalized for exercising their right to appeal” … . After a new trial, the sentencing court must give affirmative reasons “concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” to justify a higher sentence … . * * *

By contrast, the same policy concerns are not implicated when a defendant rejects a plea offer, proceeds to trial for the first time, and is given a harsher sentence than the plea offer.

“Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea” (People v Pena , 50 NY2d 400, 412 … ). In Pena , this Court concluded that the defendant was not punished by the imposition of the lawful, but greater, sentence received after rejecting a lenient plea offer and proceeding to trial.

Here, after hearing the court’s warning that he would not receive such leniency should he be found guilty, defendant rejected the plea offer and proceeded to trial. Supreme Court imposed a lawful sentence, based upon defendant’s remorseless statement at the sentencing hearing, the heinous nature of the crimes, and the victim’s sentencing statement. Furthermore, the plea offer would have required defendant to plead guilty to a class D felony, whereas defendant was convicted after trial of a class B violent felony offense for which the court could not have legally imposed the probationary sentence offered with respect to the plea. Defendant’s rejection of the plea offer also required the victim to testify about the sexual abuse at trial, a factor this Court has recognized as a legitimate basis for the imposition of a more severe sentence after trial than that which the defendant would have received upon a plea of guilty … . Had the presumption of vindictiveness applied to this case, these would constitute legitimate and reasoned bases for the more severe sentence imposed … . People v Martinez, 2015 NY Slip Op 08456, CtApp 11-19-15

 

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Petitioner, Who Was Required to Work in the “Work Experience Program [WEP]” to Receive Public Assistance, Was an “Employee” Entitled to Minimum Wage Under the Fair Labor Standards Act (FLSA)

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over an extensive dissenting opinion by Judge Abdus-Salaam (in which Judge Pigott concurred), determined petitioner, who received public assistance from New York City and was therefore required to work 35 hours per week in the Work Experience Program (WEP), was an “employee” entitled to the minimum wage under the Fair Labor Standards Act (FLSA). Petitioner, after completing the WEP, won $10,000 in the state lottery. Under the lottery rules, the state sought one-half of the lottery proceeds as reimbursement for the public assistance paid to petitioner. Petitioner argued that the reimbursement reduced the amount the state paid him for his WEP work below the minimum wage required by the FLSA. The Court of Appeals agreed with petitioner’s argument. The bulk of the opinion and the dissent dealt with the propriety of finding petitioner was an “employee” entitled to the minimum wage protections of the FLSA:

… [W]e must apply the economic reality test and, under that test, the City should be considered Carver’s employer. The City had the power to hire and fire WEP workers, in that it was the City’s responsibility to assign public assistance recipients to a WEP agency and the City could dismiss workers from WEP based upon their performance. Additionally, the City and its WEP agencies supervise and control the work schedule of the workers. Furthermore, the City and its agencies, such as HRA, maintain the employment records of the WEP workers. While the Social Services Law, not the WEP agencies or the City, determines the rate and method of payment of WEP workers, that is simply one factor. The economic reality test “encompasses the totality of the circumstances” … . Matter of Carver v State of New York, 2015 NY Slip Op 08451, CtApp 11-19-15

 

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