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CLAIMANT WAS WRONGFULLY TERMINATED AFTER TELLING HIS BOSS HE WAS GOING TO FILE A WORKERS’ COMPENSATION CLAIM, A VIOLATION OF WORKERS’ COMPENSATION LAW SECTION 120 (THIRD DEPT).

The Third Department determined claimant was terminated because he told the executive manager he would be filing a workers’ compensation claim and taking time off after a slip and fall injury, a violation of Workers’ Compensation Law section 120:

“Workers’ Compensation Law § 120 prohibits an employer from discriminating against an employee who has filed or who has attempted to file a claim for workers’ compensation benefits by discharging him or her” … . In enacting this statute, “the Legislature intended ‘to insure that a claimant [could] exercise his [or her] rights under the [Workers’] Compensation Law . . . without fear that doing so [might] endanger the continuity of [his or her] employment'” … . “The burden of proving a retaliatory discharge in violation of the statute lies with the claimant, who must demonstrate a causal nexus between the claimant’s activities in obtaining compensation and the employer’s conduct against him or her” … . With regard to “questions of fact and factual inferences to be drawn therefrom, . . . a decision of the [B]oard is conclusive upon the courts if supported by substantial evidence” … . Matter of Markey v Autosaver Ford, 2020 NY Slip Op 01876, Third Dept 3-16-20

 

SECURITIES TRADER IS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, a securities trader who worked for Quad Capital, LLC, was an employee entitled to unemployment benefits:

The record establishes that claimant submitted a resume and was interviewed by a managing partner at Quad Capital. After certain criteria, such as a trading license, fingerprints and background check were completed, claimant entered into an Ordinary Member Agreement and was given a trader handbook. The record also establishes that, despite being designated by the contract as a member of the limited liability company, claimant did not make a monetary investment in the company, was paid based upon the net profit only from his portfolio, did not have any managerial duties, did not make any financial or managerial decisions and was not liable for any losses from the company — unlike managing members of Quad Capital. Further, claimant had regularly-scheduled work hours in Quad Capital’s office and was required to notify his manager if he would be absent. Claimant was expected to attend morning meetings, his work was regularly reviewed and monitored by a manger and he was subject to a dress code for which a fine would be imposed if violated. Matter of Giampa (Quad Capital, LLC–Commissioner of Labor), 2020 NY Slip Op 01877, Third Dept 3-16-20

 

THE CARRIER’S FAILURE TO INDICATE WHEN IT OBJECTED TO THE RULING OF THE WORKERS’ COMPENSATION LAW JUDGE JUSTIFIED THE DENIAL OF THE CARRIER’S APPLICATION FOR REVIEW (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board did not abuse its discretion when it denied the carrier’s application for review because question 15 on the application form did not indicate when the relevant objection to the Workers’ Compensation Law Judge (WCLJ) was made:

When the carrier filed its application for Board review … , question number 15 on that form, as well as the accompanying instructions in effect at that time, requested that it “[s]pecify the objection or exception interposed to the ruling and when the objection or exception was interposed as required by 12 NYCRR 300.13 (b) (2) (ii).” In response to question number 15, the carrier stated, “Please note the carrier’s objection to not finding a transfer of liability to the Special Funds Conservation Committee pursuant to [Workers’ Compensation Law §] 25-a.” The Board found that the carrier’s response was incomplete because there were “several hearings [that] had taken place prior to the hearing [on] July 3, 2018,” and the carrier’s response to question number 15 did “not include the date of the hearing at which the exception to the WCLJ’s ruling was interposed, as required.” Both the regulation itself and the instructions in effect at the time that the carrier filed its application for Board review unambiguously required the carrier to “specify the objection or exception that was interposed to the [WCLJ’s] ruling, and when the objection or exception was interposed” … . As such, a complete response to question number 15 required the carrier to specify the nature of its objections or exceptions and indicate when such objections or exceptions were interposed. Although the carrier satisfied the first prong of the regulation by articulating specific objections to the WCLJ’s rulings, it failed to satisfy the temporal element of the regulation by indicating when such objections were made. Accordingly, under the circumstances presented here, in which the carrier failed to provide the requisite temporal element in its response to question number 15, we find that the Board did not abuse its discretion in denying the carrier’s application for Board review … . Matter of Barrera v Corinthian Cast Stone, Inc., 2020 NY Slip Op 01880, Third Dept 3-16-20

Similar issue and result in Matter of Currie v Rist Transp. Ltd., 2020 NY Slip Op 01874, Third Dept 3-16-20

Similar issue and result in Matter of Perry v All Am. Sch. Bus Corp., 2020 NY Slip Op 01869, Third Dept 3-16-20

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WAIVER OF APPEAL INVALID; THERE WAS PROBABLE CAUSE FOR THE DWI ARREST EVEN THOUGH NO FIELD SOBRIETY TESTS WERE CONDUCTED; BETTER PRACTICE WOULD BE FOR THE PROSECUTOR TO PLACE THE EVIDENCE OF DEFENDANT’S GUILT ON THE RECORD AT THE TIME OF AN ALFORD PLEA (THIRD DEPT).

The Third Department, affirming defendant’s DWI conviction by guilty plea, determined the waiver of appeal was insufficient. The Third Department noted that the better practice would have been to place the evidence of defendant’s guilt on the record at the time of the Alford plea, and found the arresting officer had probable cause without conducting field sobriety tests. With regard to the waiver of appeal, the court wrote:

During the brief colloquy with defendant, County Court did not sufficiently distinguish the waiver of the right to appeal from the trial-related rights that defendant was forfeiting by virtue of his guilty plea, and the record does not reflect that defendant executed a written waiver. Additionally, in response to County Court’s inquiry regarding defendant’s willingness to waive his right to appeal, defendant replied, “Yes, if that’s what I gotta do, yes. If that’s what you’re making me do, I’ll do it.” Under these circumstances, we are unable to conclude that defendant knowingly, intelligently and voluntarily waived his right to appeal. People v Crandall, 2020 NY Slip Op 01857, Third Dept 3-16-20

 

CLAIMANT’S FAILURE TO COMPLY WITH THE FORMATTING REQUIREMENTS SUPPORTED THE DENIAL OF CLAIMANT’S APPLICATION FOR BOARD REVIEW (THIRD DEPT).

The Third Department determined claimant’s failure to comply with the formatting requirements supported the denial of claimant’s application for Board review:

The Board’s instructions for the RB-89 form regarding question number 13 required that claimant specify the date and document ID numbers of “the transcripts, documents, reports, exhibits, and other evidence in the Board’s file that are relevant to the issues and grounds being raised for review.” In response, claimant answered, “[a]ll hearings, transcripts and documents in [the Board] file are pertinent to the outstanding issue.” By merely referencing the entire Board case file in response to question number 13, claimant failed to comply with the prescribed formatting and completion requirements … . Accordingly, the Board did not abuse its discretion in denying claimant’s application for Board review, and its decision will not be disturbed … . Matter of Hirschbeck v Office of the Commr. of Major League Baseball, 2020 NY Slip Op 01870, Third Dept 3-16-20

 

REVERSAL IS NOT REQUIRED WHEN A JURY NOTE WHICH WAS NOT ADDRESSED BY THE COURT HAD NO DIRECT RELEVANCE TO THE CHARGED OFFENSE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined, after a reconstruction hearing, the trial judge was not made aware of a jury note which requested a trial exhibit and a chronology of events relating to the defendant’s dating the victim’s relative. The judge’s clerk provided the trial exhibit to the jury. No such chronology existed and the judge was not informed of the request for it. Because the chronology did not have anything to do with the charged offense, the failure to address that aspect of the jury note was not a mode of proceedings error:

… [T]he chronology requested by the jury involved background factual information regarding a former relationship between defendant and a relative of the victim that had no relevance to any of the elements of the charged crime or to the jury’s process of reaching a verdict … . … [I]n Silva, the Court of Appeals found that a trial court’s O’Rama [78 NY2d 270] error did not require reversal of the defendant’s drug-related convictions because the jury inquiry did not pertain to those convictions, but only to a conviction for weapon possession (People v Silva, 24 NY3d at 301 n 2). Likewise, in People v Walston (23 NY3d 986, 990 [2014]), the defendant’s manslaughter conviction was reversed because of a trial court’s mode of proceedings error, but the Court of Appeals held that reversal of a separate conviction on another charge was not required because the note did not address that offense.

Thus, reversal of a conviction is not required when a trial court fails to address a jury inquiry that has no direct relevance to that conviction … . People v Johnson, 2020 NY Slip Op 01668, Third Dept 3-12-20

 

FAILURE TO INCLUDE THE APPROXIMATE TIME OF THE COMMISSION OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) IS NOT A JURISDICTIONAL DEFECT (THIRD DEPT). ​

The Third Department determined that the Superior Court Information (SCI) was not jurisdictionally defective and therefore any attack on the validity of the SCI was precluded by the waiver of appeal:

Pursuant to our recent decisions in People v Elric YY. (179 AD3d 1304 [2020]) and People v Shindler (179 AD3d 1306 [2020]), defendant’s further contention that her 2015 waiver of indictment was jurisdictionally defective because the SCI did not set forth the approximate time of the commission of the charged crimes as required by CPL 195.20 is also without merit … . The omission of the approximate time of the charged crimes in the SCI, to which defendant did not object, is a nonjurisdictional defect to which any objection was forfeited by her guilty plea. Notably, no claim has been made that defendant lacked notice of the specific crimes for which she agreed to waive prosecution by indictment. People v Edwards, 2020 NY Slip Op 01671, Third Dept 3-12-20

 

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DEFENDANT WAS ALONE IN HIS CAR ARGUING WITH SOMEONE ON HIS PHONE WHEN THE POLICE APPROACHED; THE POLICE DID NOT HAVE AN OBJECTIVE, CREDIBLE REASON FOR THE APPROACH; THE HANDGUN FOUND IN AN INVENTORY SEARCH SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court and dismissing the indictment, determined the police officers did not have an objective credible reason for approaching defendant, who was in his car outside a nightclub just after the club closed. The defendant was arrested after a check on his license revealed it had been suspended. The handgun found in an inventory search of the car should have been suppressed:

… [D]efendant’s engagement in an argument on his cell phone while alone in his private vehicle — did not provide any apparent nexus to the drug and weapons crimes that police said were typically committed in the area, or give rise to any other objective reason to question his presence. Nothing about a driver’s conduct in arguing on a cell phone, without more, suggests criminal activity related to weapons or drugs … . A sole occupant of a private vehicle arguing with someone who is not present gives rise to no apparent reason for police to intervene, such as potential safety concerns … .

Thus, we find that police did not have the requisite objective, credible reason for approaching defendant’s vehicle in the first instance. The encounter was further invalid because police had no objective, credible reason to extend the initial conversation by running defendant’s driver’s license after he responded to their initial inquiry and provided the information they requested … . The officer gave no explanation for his decision to intrude further at that point, nor does the record reveal such an explanation. Nothing about the exchange with defendant gave rise to any reason to suspect that he was not telling the truth … . Defendant’s driver’s license did not appear to belong to someone else … or reveal anything unusual on its face … . Lacking an objective, credible reason that justified police in approaching defendant’s vehicle and making inquiries, the encounter was invalid at its inception … . People v Stover, 020 NY Slip Op 01676, Third Dept 3-12-20

 

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A REVOLVER WHICH COULD NOT BE CONNECTED TO THE SHOOTING SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE; ERROR HARMLESS HOWEVER (THIRD DEPT).

The Third Department determined the admission into evidence of a revolver which could not be connected to the shooting at issue was (harmless) error:

Defendant next argues that County Court erred in admitting into evidence an operable .38-caliber revolver, containing five spent rounds, that was recovered from a nearby rooftop a few days after the shooting. Testing could not conclusively show that the revolver was used in the shooting or that it had been handled by defendant, but it remained relevant given the circumstances of its recovery and the fact that it could not be ruled out as the one used by the shooter … . The revolver was accordingly admissible unless its probative value was “substantially outweighed by the danger that it [would] unfairly prejudice the other side or mislead the jury,” and County Court attempted to reduce that danger by telling the jury why the revolver was being admitted into evidence and urging it to give the revolver whatever weight it deemed appropriate … . County Court’s ameliorative efforts arguably fell short but, in our view, any resulting error was harmless “in light of the overwhelming testimony identifying defendant as [the] assailant” … . People v Banks, 2020 NY Slip Op 01525, Third Dept 3-5-20

 

THE USE OF THE TERM “VICTIM” TO REFER TO THE COMPLAINING WITNESS AT TRIAL WHERE THE WITNESS’S CREDIBILITY IS IN ISSUE SHOULD BE AVOIDED (THIRD DEPT).

The Third Department noted that referring to the complaining witness using the term “victim” should be avoided at trial where the witness’s credibility is in issue, but found no error in the way the trial judge handled the matter in this sexual-offense case:

In [a] motion in limine, defense counsel sought to preclude references to the “victim,” arguing that they would dilute the presumption of innocence and deprive defendant of a fair trial. Several New York courts have examined this issue in the specific context of jury instructions and have held that it is improper for a trial court to refer to a complainant as the “victim” in a jury charge, but that reversal is not required unless, taken as a whole, the charge does not otherwise convey the proper standards to the jury … . It does not appear that any New York court has analyzed the issue outside the context of jury instructions, but several courts in other jurisdictions have held that the use of the term “victim” by the prosecution or its witnesses should be avoided where, as here, the credibility of the complaining witness is in issue, and that facts such as the context and frequency of the references and the strength of other evidence should be taken into account in determining whether use of the term is reversible error … . Here, although Supreme Court denied defendant’s application, it also agreed that his concern was “well-grounded” and warned counsel to use caution, stating that “[i]t might call the attorneys over” if a witness repeatedly used terms like “victim” or “assailant,” and that police witnesses should not use such terms in such a way as to have an emotional impact on the jury. While we agree with defendant that references to the complaining witness as the “victim” at trial should be avoided when his or her credibility is in issue, we find no error in the court’s treatment of the issue under the circumstances presented here. People v Horton, 2020 NY Slip Op 01530, Third Dept 3-5-20

 

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