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THE RECORD DID NOT INDICATE THE HEARING OFFICER ASSESSED THE RELIABILITY OF CONFIDENTIAL INFORMATION; MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the misbehavior determination, found that record did not reflect that the hearing officer took the necessary steps to confirm the reliability of confidential information:

Although the Hearing Officer indicates that he relied upon and independently assessed confidential testimony, neither the hearing transcript nor the witness interview notice form reflects that any confidential testimony was taken during the hearing or that any confidential documents were reviewed. As to the relevant statement from the confidential informant, “[a] disciplinary determination may be based upon hearsay confidential information provided that it is sufficiently detailed and probative for the Hearing Officer to make an independent assessment of the informant’s reliability” … .

Here, the author of the misbehavior report simply testified with regard to the confidential informant that he had received information from the confidential informant in the past and deemed the current information accurate. Other than this general and conclusory testimony, no further details regarding the basis for the information or the results of the author’s investigation into the incident were provided. Moreover, evidence at the hearing contradicted the confidential information. Specifically, the inmate who petitioner allegedly sent to the visit room to pick up drugs had not, according to the visit room log, been to the visit room in over three weeks prior to the alleged incident. In view of the foregoing, neither the testimony or evidence at the hearing was sufficiently detailed or probative for the Hearing Officer to assess the reliability or credibility of the confidential informant. Matter of Brown v Annucci, 2020 NY Slip Op 02343, Third Dept 4-23-20

 

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FINDING THAT CLAIMANT MADE A WILLFUL FALSE STATEMENT TO OBTAIN UNEMPLOYMENT INSURANCE BENEFITS WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE; ALTHOUGH CLAIMANT DENIED SHE WAS GUILTY OF CRIMINAL CHARGES RELATED TO HER FIRING, SHE PROVIDED THE COURT DOCUMENTS WHICH INDICATED SHE HAD PLED GUILTY (THIRD DEPT).

The Third Department determined claimant should not have been found to have made a willful misrepresentation to obtain unemployment benefits. Claimant had been fired for allegedly hiding a coworker’s wallet that she found in lunchroom. Although she denied being guilty of the charges arising out of the incident, she provided the Department of Labor with the court document stating she had pled guilty to criminal mischief and disorderly conduct:

The record establishes that claimant spoke, in Mandarin, to a representative from the Department of Labor and informed the representative about the incident that led to her separation from employment, including that she was arrested on the charge of grand larceny in the fourth degree. According to claimant’s statement, she denied being guilty of the charges and, thereafter, readily provided the Department of Labor with a court document. That court document, however, reflects that claimant had already pleaded guilty to criminal mischief in the fourth degree and disorderly conduct and was required to perform five days of community service. Claimant’s statement reflects a misunderstanding on her part, as she indicates that the court would not be determining her guilt until July 2018. Notwithstanding the inconsistent information provided by claimant and the court document provided to the Department of Labor, claimant did not withhold any information regarding the nature of the conviction, and, in fact, provided the pertinent information with regard to her conviction. In view of this, claimant cannot be deemed to have made a knowing, intentional and deliberate false statement to obtain benefits … . As such, the Board’s finding that claimant made a willful false statement is not supported by substantial evidence … . Matter of Hua Fan (Commissioner of Labor), 2020 NY Slip Op 02350, Third Dept 4-23-20

 

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REVERSIBLE ERROR TO ADMIT INTO EVIDENCE A VIDEO OF THE INTERROGATION OF DEFENDANT SHOWING HIM REMAINING SILENT WHILE THE POLICE RECOUNTED THE CASE AGAINST HIM (THIRD DEPT).

The Third Department reversed defendant’s conviction because a video of his interrogation, which showed him remaining silent while the police recounted the case against him, was admitted into evidence:

“It is a well-established principle of state evidentiary law that evidence of a defendant’s pretrial silence is generally inadmissible” … . There are many reasons why an individual may choose not to speak to the police; however, there is a substantial risk that jurors might construe such silence as an admission and draw an unwarranted inference of guilt … . Here, the admitted video consists of the police recounting their case against defendant, including reading his texts aloud and being met largely, if not completely, with silence. Defendant is shown slouching, with an ankle shackle securing him to the chair, and he is dressed in a hooded sweatshirt with oversized sweatpants worn in a manner so as to expose his underwear. His attitude appears to be dismissive and, at one point, he laughs in response to police questioning. Throughout the video, defendant makes no inculpatory statements. Both detectives who appear in the video were presumably available to testify and, in fact, one of them did testify.

Allowing evidence of defendant’s selective silence was highly prejudicial because there was a significant risk that the jurors deemed defendant’s failure to answer the police officer’s questions to be an admission of guilt … . Given its highly prejudicial nature and that it contained little to no probative value, we agree with defendant that County Court erred in allowing the redacted video to be shown to the jury … . This error was compounded by the People’s use of the video during summation, wherein the prosecutor highlighted and commented upon defendant’s silence during the police interrogation. In doing this, the People improperly shifted the burden to defendant … . People v Chapman, 2020 NY Slip Op 02330, Third Dept 4-23-20

 

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FATHER WAS DENIED DUE PROCESS WHEN THE COURT TOOK SIX MONTHS TO HOLD A POST-DISPOSITIONAL HEARING AFTER A FAILED TRIAL DISCHARGE OF THE CHILDREN TO FATHER; THE CHILDREN WERE FINALLY RETURNED TO FATHER AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that father was entitled to an expedited post-dispositional hearing after the children were removed from the father’s custody based upon a failed trial discharge. The children were eventually returned to father, but the hearing took six months and the children were not returned to father until eight months after the decision was issued. The First Department ruled on the appeal as an exception to the mootness doctrine, finding that this situation was likely to recur. The court held that father was entitled to an “expedited hearing” after the children were removed under due process principles:

We find that a parent’s private interest in having custody of his or her children, the children’s private interest in residing with their parent, and the undisputed harm to these interests are factors that merit equal consideration. On this record, ACS [Administration for Children’s Services]  fails to establish that the lengthy delay was related to its interest in protecting the children. Rather, the hearing was prolonged over six months because of the court’s and attorneys’ scheduling conflicts. There is no indication that the completion of the hearing was caused by difficult legal issues, or by the need to obtain elusive evidence, or by some other factor related to an accurate assessment of the best interest of the children … .

Even though this is a post-dispositional matter, the father is entitled to the strict due process safeguards afforded in neglect proceedings. “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State” … . This rationale equally applies to the primacy of a parent’s fundamental liberty interest, and the importance of procedural due process in protecting that interest, particularly when a parent and child are physically separated … . Accordingly, we find that a parent is entitled to a prompt hearing on the agency’s determination to remove the children from his or her physical custody through a failed trial discharge. Matter of F.W. (Monroe W.), 2020 NY Slip Op 02385, First Dept 4-23-20

 

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MISTRIAL BASED UPON DEFENSE COUNSEL’S CONFLICTS OF INTEREST WAS PROPERLY GRANTED WITH DEFENDANT’S CONSENT; DOUBLE JEOPARDY DID NOT ATTACH (THIRD DEPT).

The Third Department determined the mistrial, based upon defense counsel’s conflicts of interest (representation of prosecution witnesses) was properly granted with defendant’s consent. Therefore double jeopardy did not attach:

Upon learning of defense counsel’s potential conflicts of interest, County Court engaged in a lengthy colloquy with the parties, during which they explored — to no avail — ways to avoid the conflict, including the possibility of the Special Prosecutor foregoing testimony from the witnesses. The court explained the ramifications of the conflict to defendant more than once, emphasizing that defense counsel’s ethical obligations to his prior clients — the intended prosecution witnesses — could “impact his ability to cross-examine them as vigorously or as effectively or as thoroughly as he otherwise would.” Following this explanation, County Court presented defendant with the choice to waive any conflict and proceed with his assigned counsel or request the assignment of new counsel, thereby necessitating a mistrial and a retrial. Although defendant asserted that he did not “want to do this again,” he also expressed discomfort with being at a disadvantage should his assigned counsel be unable to fully cross-examine either of the prosecution witnesses and ultimately stated, “I’d like to seek new counsel, I guess.” Later, in response to County Court’s additional queries, defendant confirmed that he wanted a new attorney and reasserted his unwillingness to waive any potential conflict of interest. Thereafter, County Court asked if there was an application for a mistrial, to which defendant — through his assigned counsel — stated that there was. … Upon our review of the entire colloquy, we find that defendant requested and, thus, consented to a mistrial … . Inasmuch as the record wholly belies defendant’s further contention that County Court and/or the Special Prosecutor deliberately engaged in misconduct intended to provoke a mistrial, defendant’s retrial was not barred by double jeopardy protections … . People v Ellis, 2020 NY Slip Op 02292, Third Dept 4-16-20

 

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SHORTLY BEFORE TRIAL, THE PEOPLE WERE PROPERLY ALLOWED TO AMEND THE REFERENCE TO A DATE IN THE INDICTMENT (THIRD DEPT).

The Third Department noted that the People were properly allowed to amend the designation of the date of an offense alleged in the indictment shortly before the trial began:

“At any time before or during trial, the court may, upon application of the [P]eople and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to . . . time . . ., when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits” (CPL 200.70 [1]). Here, the original indictment asserted that defendant’s first assault upon the victim took place on June 15, 2017. About two weeks before the commencement of the trial, the People sought leave to amend it to provide that the incident occurred “on or about” June 15, 2017, on the ground that the initial date had been an approximation and that subsequent investigation had narrowed down the time to the late evening hours of June 15, 2017 and/or the early morning hours of June 16, 2017. The amendment did not alter the theory of the prosecution; the People consistently maintained, both before the grand jury and at trial after the amendment, that defendant strangled and assaulted the victim in their room after the gathering in the motel office and before her first treatment at the hospital on the morning of June 16, 2017. The amendment merely served to address the possibility that the incident began in the evening of June 15, 2017 and continued past midnight into the early morning hours of the next day. There was no prejudice to defendant, who did not proffer an alibi defense … . People v Baber, 2020 NY Slip Op 02294, Third Dept 4-16-20

 

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ALLEGATION THAT PETITIONER FAILED TO REPORT AN INCIDENT OF SUSPECTED ABUSE BY ANOTHER EMPLOYEE OF THE NYS OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES WAS SUBSTANTIATED DESPITE THE FAILURE TO SUBSTANTIATE THE ALLEGATION OF ABUSE BY THE OTHER EMPLOYEE (THIRD DEPT).

The Third Department determined the NYS Office for People with Developmental Disabilities’s (OPWDD’s) finding that petitioner’s failure to report an incident of suspected abuse by another employee was substantiated was supported by the evidence, despite the fact that allegation of abuse by the other employee was not substantiated:

The evidence at the hearing established that the service recipient reported to petitioner every time the other employee was “rude” to him over the course of six months, and petitioner did not act on this information. By petitioner’s own testimony, she saw the other employee shout at and belittle the service recipient, yet she reported nothing. Although petitioner disputed the characterizations of her statements at the meeting or that she thought the other employee was abusive, and offered many reasons as to why she did not act on her observations, respondent was free to make credibility determinations and credit contrary testimony, as “it is the responsibility of [respondent] to weigh the evidence and choose from among competing inferences therefrom” … .

We reject petitioner’s contention that obstruction of reporting cannot be substantiated against her since the underlying allegations of abuse against the other employee were not substantiated. Pursuant to statute, reportable incidents must be reported when they are “suspected,” rather than confirmed … . Matter of Taylor v Justice Ctr. for the Protection of People with Special Needs, 2020 NY Slip Op 02299, Third Dept 4-16-20

 

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ZONING BOARD’S DENIAL OF A VARIANCE WAS BASED PRIMARILY ON COMMUNITY OPPOSITION; THE DENIAL WAS PROPERLY ANNULLED BY SUPREME COURT (THIRD DEPT).

The Third Department determined the Board of Zoning Appeals improperly denied petitioner’s application for a variance based primarily on community opposition:

… [W]e cannot say that respondent’s determination to deny the area variance was rational. Respondent’s findings reflect that an environmental review of the proposed project concluded that there would be no significant impacts to, among other things, aesthetic or historic resources, the air, land, drainage or open space area. The findings also indicated that the City of Ithaca Planning Board, at best, gave an equivocal opinion about the proposed project. In this regard, the findings stated that the Planning Board was “unsure” whether the requested variance was consistent with the neighborhood and that it was ‘conflicted’ about petitioner’s appeal to respondent. Furthermore, petitioner’s proposed use of the property was a permitted use in the neighborhood. In addition, the record contains comments from individuals in the neighborhood — some of which supported and some of which disapproved of petitioner’s request. Yet, respondent’s consideration of the requisite factors (see Code of City of Ithaca § 325-40 [C] [3] [b] [1]-[5]) rested primarily on the opposing comments provided by those individuals living in the neighborhood … . Given that the views of the community in opposition to petitioner’s request by itself does not suffice to deny a variance, respondent’s determination lacks a rational basis … . Matter of 209 Hudson St., LLC v City of Ithaca Bd. of Zoning Appeals, 2020 NY Slip Op 02311, Third Dept 4-16-20

 

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CLAIMANT, WHO WAS ON THE JOB OUT-OF-TOWN, WAS INJURED IN A TRAFFIC ACCIDENT WHILE DRIVING FROM HIS HOTEL TO WHERE THE EMPLOYEES PICKED UP THEIR TRUCKS; CLAIMANT WAS ENTITLED TO WORKERS’ COMPENSATION BENEFITS UNDER THE TRAVELING EMPLOYEE EXCEPTION (THIRD DEPT).

The Third Department determined claimant was entitled to workers’ compensation benefits for injuries stemming from a traffic accident on his way to the site where the employees pickup up their bucket trucks for tree-trimming work. Claimant was working about five or six hours from his home and his employer was paying a portion of his hotel costs. The traffic accident occurred when claimant was driving from the hotel to where the trucks were kept:

Under the traveling employee exception, “injuries to a traveling employee may be compensable even if the employee at the time of the accident was not engaged in the duties of his [or her] employment,” provided that the employee is engaged in a reasonable activity … . We are not persuaded by the carrier’s contention that the Board erred in applying this exception. The Board observed that claimant was working in an area about a 5½-to 6-hour drive from home. Although the employer’s supervisor testified that claimant was not required to stay at the hotel, he agreed that it would not have been practical for claimant to commute from home. All of claimant’s coworkers, including the general foreman, stayed at the hotel. Under these circumstances, the Board determined that claimant’s status as an employee continued throughout his stay away from home. As claimant was engaged in a reasonable activity at the time of the accident, the record provides substantial evidence for the Board’s conclusion that claimant’s injuries arose out of and in the course of his employment … . Matter of Wright v Nelson Tree Serv., 2020 NY Slip Op 02312, Third Dept 4-20-20

 

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SERVICES PROVIDED TO A DISABLED MAN BY THE NYS OFFICE OF PEOPLE WITH DEVELOPMENTAL DISABILITIES COULD NOT BE CURTAILED BECAUSE OF A LACK OF FUNDS (THIRD DEPT).

The Third Department determined the NYS Office for People with Developmental Disabilities (OPWDD) was properly prohibited from curtailing services to and disabled man, M,D., because of a lack of funds:

Even if the catch-all of “any other relevant considerations advanced by the parties” (OPWDD Policy and Procedures, Topic No. CP-10 [Rev (Feb. 1995)], at 4, ¶ 10) includes a provider agency’s financial difficulties connected to the provision of services to an individual, the Hearing Officer noted that petitioner “may well have valid fiscal concerns,” but concluded that it would not be proper or in M.D.’s best interest to discharge him on the basis of a lack of funding. We acknowledge the conundrum raised by petitioner — that providers face a difficulty in providing excellent services to a population with special needs but with no avenue of relief to help them financially when those services are more expensive than expected or than the maximum allowed under the HCBS [Home Community Based Services] waiver program. While we applaud providers such as petitioner for striving to provide excellent services to an underserved population, and are cognizant of their frustration when they deem the funding available for such services to be inadequate, the remedy must be for the service providers to apply to or lobby the relevant agencies, the Legislature or the Governor to provide more funding; the answer cannot be that administrative agencies or courts should allow service providers to simply discharge individuals with developmental disabilities from their services whenever the providers deem them too expensive. Based on consideration of the relevant factors, substantial evidence supports the Commissioner’s determination that it was not reasonable to allow petitioner to discharge M.D. from its program. Matter of Community, Work, & Independence, Inc. v New York State Off. for People with Dev. Disabilities, 2020 NY Slip Op 02301, Third Dept 4-16-20

 

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