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INSPECTORS HIRED TO ASSESS DAMAGE TO PROPERTY CAUSED BY HURRICANE SANDY WERE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined inspectors hired by Partnership for Response and Recovery (PaRR) to inspect damage to property caused by Hurricane Sandy were employees entitled to Unemployment Insurance benefits:

Before the inspectors were deployed to a particular disaster area, PaRR set up a field operation near the site where it distributed FEMA-issued computers and cameras to the inspectors. In addition, for the inspectors’ convenience, it provided them with invoice forms containing the information required by FEMA to be used to receive payment. PaRR also supplied them with an identification badge bearing its logo and offered them training on how to utilize the FEMA computer system and comply with FEMA’s requirements. PaRR set the rate of pay at $62.50 per inspection, paid inspectors even if it had not yet received payment from FEMA, reimbursed them for travel to the site of the assignment and provided compensation for prepositioning to the site. Moreover, it conducted a quality review of 3% of the inspection reports and encouraged inspectors to complete their reports within three days as requested by FEMA. PaRR also provided field support to the inspectors to assist them with completing their inspection reports and using the FEMA computer system.

Although claimant and the other inspectors worked independently and without any supervision from PaRR in conducting the actual inspections, the evidence demonstrates that PaRR retained overall control over many important aspects of their work. Although some of this control emanated from the regulatory requirements imposed by FEMA, this was not to such an extent as to negate the existence of an employment relationship … . Matter of Jensen (Partnership for Response & Recovery, LLP–Commissioner of Labor), 2019 NY Slip Op 09073, Third Dept 12-19-19

 

 

CLAIMANT, WHO DISTRIBUTED NEWSPAPERS, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, who distributed newspaper and other publications, was an employee of Gannett Satellite Information Network and was therefore entitled to unemployment insurance benefits:

Claimant was assigned delivery routes within a defined area, was required to deliver the newspapers by a certain time and was paid at a specified per-paper rate … . Additionally, claimant was required to provide proof of a valid driver’s license and insurance, was offered (and declined) additional accident coverage provided by a carrier utilized by Gannett and was precluded from placing any inserts or additional materials in the newspapers that he was delivering … . Finally, one of the two agreements signed by claimant reflects that he elected to purchase a tablet from Gannett — with the purchase price paid via weekly deductions from the moneys owed to claimant for his delivery services. Matter of Clifford (Gannett Satellite Info. Network, Inc.–Commissioner of Labor), 2019 NY Slip Op 08898, Second Dept 12-12-19

 

REGULATION LIMITING BRIEFS TO EIGHT PAGES IS ARBITRARY AND CAPRICIOUS AND THE LONGER BRIEF WAS NOT AN ADEQUATE GROUND FOR REJECTING THE EMPLOYER’S APPLICATION AND APPEAL (THIRD DEPT). ​

The Third Department determined the regulation limiting the length of briefs to eight pages was arbitrary and capricious. The employer’s application had been rejected solely because the brief was longer than eight pages:

The difficulty here is that there is no defined standard as to what explanation the Board would consider adequate. Worse yet, the regulation, by its express terms, does not authorize the Board to dismiss an application for Board review where a brief longer than eight pages is submitted without an adequate explanation. In such an instance, the regulation simply specifies that the brief “will not be considered” (12 NYCRR 300.13 [b] [1] [i]). Although the regulation also provides that an application may be denied “when the applicant . . . does not comply with prescribed formatting. . . requirements” (12 NYCRR 300.13 [b] [4] [i]), the filing of a brief is discretionary, not mandatory. As such, we find that the Board acted arbitrarily in dismissing the employer’s application for Board review. We further conclude that it would not be reasonable in the first instance for the Board to reject an oversized brief outright for to do so would undermine the role of counsel. We find this aspect of the regulation flawed for there is simply no safety valve that would allow an applicant to seek permission to file a lengthier brief without jeopardizing the ability to submit a legal analysis supportive of the application for Board review … . As such, we find that the regulation is unreasonable with respect to the oversized brief exception and must be rejected as arbitrary and capricious. The matter must be remitted to the Board for further proceedings. Matter of Daniels v City of Rochester, 2019 NY Slip Op 08902, Second Dept 12-12-19

 

THE INCLUSION OF EXTRANEOUS INFORMATION ON THE VERDICT SHEET WHICH DID NOT PROVIDE ANY SUBSTANTIVE INFORMATION ABOUT THE CASE WAS HARMLESS ERROR (THIRD DEPT).

The Third Department determined, although it was error to include extraneous information on the verdict sheet, i.e., that the defendant had authorized the verdict sheet, the error was harmless:

The Court of Appeals has “held that it is reversible error, not subject to harmless error analysis, to provide a jury in a criminal case with a verdict sheet that contains annotations not authorized by CPL 310.20 (2)” … . Moreover, “[t]he basic principle is that nothing of substance can be included that the statute does not authorize” … . * * *

The extraneous statement was not part of the questions posed to the jury; rather, it was at the end of the verdict sheet. It did not change any of the questions to the jury. … [W]e find that the submission to the jury of the … verdict sheet with the statement asserting that defendant authorized it, without his signature, was not reversible error, because the extraneous statement gave no substantive information to the jury about the case and merely indicated that defendant saw the verdict sheet, was aware of his charges and was represented by an attorney … . People v Stover, 2019 NY Slip Op 08734, Third Dept 12-5-19

 

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ALTHOUGH COUNTY COURT ISSUED, ENTERED AND FILED A DECISION ADJUDICATING DEFENDANT A LEVEL THREE SEX OFFENDER, THERE WAS NO LANGUAGE INDICATING THE DECISION WAS A JUDGMENT OR AN ORDER; IN ADDITION, THE RISK ASSESSMENT INSTRUMENT DID NOT INCLUDE “SO ORDERED” LANGUAGE; THEREFORE THERE WAS NO APPEALABLE ORDER BEFORE THE COURT AND THE APPEAL WAS DISMISSED (THIRD DEPT).

The Third Department dismissed the appeal of County Court’s SORA risk assessment because County Court did not issue an appealable order:

Following a hearing, County Court rejected defendant’s challenge to certain assessed points, adjudicated him as a risk level three sex offender and designated him as a sexually violent offender. Defendant appeals.

An appealable order must be in writing (see CPLR 2219 [a] …), and must contain language that identifies the document as “either a judgment or order of the court”… . Consistent with these mandates, the Sex Offender Registration Act … requires that County Court must “render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based”… . That written order must then be “entered and filed in the office of the clerk of the court where the action is triable” (CPLR 2220 [a] …).

Here, County Court issued a written decision which was subsequently entered and filed. However, the decision contains no language indicating that it is an order or judgment, and it does not appear that a written order was entered and filed … . Moreover, the risk assessment instrument does not contain “so ordered” language so that it may constitute an appealable order … . Accordingly, this appeal is not properly before this Court and must be dismissed … . People v Porter, 2019 NY Slip Op 08743, Third Dept 12-5-19

 

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PROOF OF OCCASIONAL DRUG USE IN THE REMOTE PAST AND REFERRALS FOR ALLEGED DRUG USE IN PRISON SEVERAL YEARS AGO WAS INSUFFICIENT TO WARRANT THE ASSESSMENT OF 15 POINTS FOR A HISTORY OF DRUG AND ALCOHOL ABUSE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant should not have been assessed 15 points for his history of drug and alcohol abuse. The evidence of drug use was remote in time and drug use was not an aspect of the offense:

Defendant reported that, prior to moving to this area in 1987, he had used cocaine once during his incarceration in Alabama and speed while working in the south, but denied any recent drug use. The information regarding defendant’s use of drugs is in the distant past and excessively remote … and, in any event, does not establish a pattern of drug abuse as contemplated by the Sex Offender Registration Act risk assessment guidelines … . In addition, the case summary reflects that, upon being screened by the Department of Corrections and Community Supervision, drug use was not an issue of concern with regard to defendant and he was not, at that time, referred to any alcohol or drug treatment program.

The remaining evidence with regard to defendant’s history of drug or alcohol abuse is the general reference to defendant twice being referred to alcohol and drug abuse treatment programs during his 26 years of incarceration for the instant offense “presumptively” due to defendant receiving five tier III disciplinary sanctions for drug use. The most recent referral was several years ago, in 2012. We find that this is insufficient, by itself, to establish a pattern of drug or alcohol abuse by defendant … . People v Brown, 2019 NY Slip Op 08746, Third Dept 12-5-19

 

ABSENT A FINDING OF PERMANENT PARTIAL DISABILITY, CLAIMANT NEED NOT SHOW ATTACHMENT TO THE LABOR MARKET AND IS ENTITLED TO RELY ON HER CHIROPRACTOR’S OPINION SHE IS TEMPORARILY TOTALLY DISABLED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was not required to show attachment to the labor market because there had not been a finding of permanent partial disability:

Claimant sought review by the Workers’ Compensation Board, contending that she was not required to demonstrate attachment to the labor market because, absent a finding that she had sustained a permanent partial disability, she was entitled to rely upon her chiropractor’s opinion that she was temporarily totally disabled. …

Claimant’s obligation to demonstrate attachment to the labor market is predicated — in the first instance — upon a finding of a permanent partial disability … . Matter of Bowers v New York City Tr. Auth., 2019 NY Slip Op 08748, Second Dept 12-5-19

 

PETITIONER-INMATE WAS DEPRIVED OF HIS FUNDAMENTAL RIGHT TO BE PRESENT DURING HIS DISCIPLINARY HEARING; ALTHOUGH PETITIONER WAS ARGUMENTATIVE, REMOVAL FROM THE HEARING WAS NOT WARRANTED; DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the disciplinary determination, held that petitioner-inmate was deprived of his right to be present during the hearing. Respondent removed petitioner from the hearing when petitioner became argumentative and asked that respondent recuse himself because of bias against the petitioner:

“An inmate has a fundamental right to be present at a Superintendent’s hearing ‘unless he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals'” … . The record reflects that, early in the hearing, petitioner asked respondent to recuse himself because petitioner had previously filed a complaint against him and perceived him to be biased. Respondent denied petitioner’s recusal request, stating that the complaint would not prevent him from providing petitioner with a fair hearing. Petitioner objected and, thereafter, twice interrupted respondent and complained that respondent had become “hostile” toward him. Respondent directed petitioner to stop interrupting him, warned him that continued interruptions would result in his removal from the hearing and sought petitioner’s acknowledgement that he understood that warning. Petitioner refused to acknowledge the warning, stating that it lacked any basis and that he was “only trying to participate in th[e] hearing.” Respondent then abruptly removed petitioner from the hearing, seemingly because petitioner refused to acknowledge the warning. Although several adjournments were taken that day to secure witnesses, petitioner was never brought back into the hearing. Our review of the record does not demonstrate that petitioner’s briefly argumentative behavior rose to the level of justifying his removal for the entire hearing or that his conduct jeopardized institutional safety and correctional goals … . Matter of Clark v Jordan, 2019 NY Slip Op 08757, Third Dept 12-5-19

 

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PARKER WARNINGS WERE INADEQUATE BUT THE ERROR WAS NOT PRESERVED FOR APPEAL; HOWEVER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE ENHANCED SENTENCE; SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined the Parker warnings were inadequate. Although the error was not preserved for appeal, defense counsel was deemed ineffective for failing to challenge the enhanced sentence:

Defendant contends that Supreme Court erroneously imposed the enhanced sentence given that it did not specifically inform him as part of the Parker admonishment that a consequence of failing to appear for sentencing was the imposition of a greater sentence. … This claim is unpreserved inasmuch as the record does not reveal that defendant objected to the enhanced sentence or moved to withdraw his guilty plea … . The lack of preservation, however, is attributable to the deficiencies of defendant’s trial counsel, who represented him both during the plea proceedings and at sentencing. Counsel was ineffective in failing to challenge the enhanced sentence as there was no strategic reason for failing to do so, particularly in light of the clear omissions that were made by Supreme Court in administering the Parker admonishment … . In view of this, we excuse the lack of preservation and address the merits … . The record reveals that Supreme Court did not provide defendant with a sufficient Parker admonishment that included the sentencing consequences and that it imposed the enhanced sentence without affording him an opportunity to withdraw his plea. Accordingly, we vacate the sentence and remit the matter to Supreme Court to either impose the agreed-upon sentence or provide defendant with an opportunity to withdraw his guilty plea … . People v Barnes, 2019 NY Slip Op 53934, Third Dept 11-27-19

 

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CONSPIRACY COUNTS FATALLY FLAWED, NO OVERT ACT WAS ALLEGED, CONVICTIONS REVERSED, COUNTS DISMISSED (THIRD DEPT),

The Third Department, reversing defendant’s conspiracy convictions, determined the conspiracy counts were fatally flawed because no overt act was alleged:

“A person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” (Penal Law § 105.20 [emphasis added] … ). Here, the two conspiracy counts neither allege that an overt act was committed nor include factual allegations describing such an act. There is no assertion that defendant took any action beyond agreeing “to engage in or cause the performance of a class B felony.” Accordingly, defendant’s convictions of conspiracy in the fourth degree under count 3 … and count 2 … must be reversed and the sentences imposed thereon vacated. Given that these two conspiracy counts were jurisdictionally defective and not subject to amendment (see CPL 200.50 [7] [a]; 200.70 [2] [a], [b] …), said counts are dismissed … . People v Mackie, 2019 NY Slip Op 53940, Third Dept 11-27-19

 

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