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PETITIONER WAS INITIALLY APPROVED FOR PAROLE, BUT AFTER THE VICTIM IMPACT HEARING A RESCISSION HEARING WAS HELD AND PAROLE WAS RESCINDED; THE RESCISSION WAS PROPERLY BASED UPON VICTIM IMPACT STATEMENTS SUPPLYING INFORMATION WHICH WAS NOT “NEW” BUT WHICH WAS NOT PREVIOUSLY KNOWN TO THE PAROLE BOARD (THIRD DEPT).

The Third Department, over a two-justice dissent, determined petitioner’s parole was properly rescinded after a rescission hearing was triggered by a victim impact hearing:

In August 2016, letters were sent from the Department of Corrections and Community Supervision to the Albany County District Attorney’s office and the judge who imposed the sentence informing them that petitioner was scheduled to appear before respondent.Petitioner appeared before respondent in December 2017, after which he was granted parole with an open release date in February 2018. Thereafter, in January 2018, a victim impact hearing was held at which the victim’s mother and two brothers gave victim impact statements. After this hearing, petitioner was served with a notice of rescission hearing, which was subsequently held in February 2018. Following the rescission hearing, petitioner’s open release date was rescinded and a hold period of nine months was imposed. This determination was upheld on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.

Petitioner argues that the victim impact statements and letters from the District Attorney’s office and sentencing judge disclosed no new facts about petitioner’s crime. … . … Although we agree that the letters should not have been considered as they did not reveal any information not previously known by respondent, this argument must fail with respect to the victim impact statements because neither the relevant regulation, nor the existing case law, requires that “new” information must be disclosed for parole to be rescinded (see 9 NYCRR 8002.5) …  Simply stated, although the regulation provides that such information must be “significant” and “not known” by respondent at the time of the original hearing, the origin of this information need not be “new” … .

Here, respondent was presented with previously unknown information from the mother, including that she was so traumatized by her son’s death that she did everything she could to avoid thinking about it, including never visiting his grave. The mother explained that, in the 25 years since the victim’s death, she has not celebrated Christmas, Thanksgiving or her other sons’ birthdays. She described how she thought that, once petitioner went to prison, it was done, and that she was safe, but she no longer felt safe. Matter of Benson v New York State Bd. of Parole, 2019 NY Slip Op 07829, Third Dept 10-31-19

 

THE RELIABILITY OF THE CONFIDENTIAL INFORMANT WAS NOT ADEQUATELY CONSIDERED BY THE HEARING OFFICER, DETERMINATION ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department, annulling the determination and expunging the record, found that the hearing officer had not adequately considered the reliability of the confidential informant:

… [W]e find that the Hearing Officer’s inquiry was not thorough and specific enough to afford him an adequate opportunity to assess the confidential informant’s knowledge and reliability. After briefly reviewing the investigating officer’s professional experience, the Hearing Officer, in a cursory fashion, confirmed that the investigating officer had obtained confidential information and then asked whether that information was received under any kind of duress or the product of coercion, whether he thought the information was reliable and credible and whether there was any promise of secondary gain. Nothing further was solicited from the investigating officer, who provided only two or three-word responses to each question and failed to offer any description of the confidential source’s statements or further testimony to assist the Hearing Officer’s inquiry into the reliability of the confidential information … . In addition, the investigating officer failed to explain why he found the confidential informant reliable … . Indeed, “[t]he Hearing Officer may not base his or her conclusion solely upon the correction officer’s assessment of the confidential informant’s truthfulness” … . The record also does not reflect that the Hearing Officer attempted to personally interview the confidential informant in order to cure these deficiencies … . Matter of Barber v Annucci, 2019 NY Slip Op 07831, Third Dept 10-31-19

 

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ALLOWING THE INTRODUCTION OF A WITNESS’S GRAND JURY TESTIMONY AS A PRIOR CONSISTENT STATEMENT WAS (HARMLESS) ERROR (THIRD DEPT).

The Third Department determined it was (harmless) error to allow the People to introduce a witness’s grand jury testimony as a prior consistent statement to counter the implication of recent fabrication raised on cross-examination:

“A witness'[s] trial testimony ordinarily may not be bolstered with pretrial statements” … . Prior consistent statements, however, may be used to rebut a claim of recent fabrication to the extent that such a statement predated the motive to falsify … . …

… [W]e conclude that Supreme Court erred in allowing the People to utilize her grand jury testimony. That said, given that the admission of bolstering testimony constitutes nonconstitutional error … , we find that the error is harmless and there is not a significant probability that the jury would have acquitted defendant but for this error … . The inconsistency speaks to which direction the shooter dispersed during what was described as a chaotic scene, not to the key issue of identification. As recited above, four witnesses identified defendant as the shooter. As such, we find that the error here is of no moment. People v Johnson, 2019 NY Slip Op 07646, Third Dept 10-24-19

 

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TRIAL JUDGE PROPERLY REFUSED TO COMPEL THE WITNESS WHO ASSERTED HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION TO TESTIFY OR TO ASSERT THE PRIVILEGE IN FRONT OF THE JURY (THIRD DEPT).

The Third Department determined the trial judge properly refused to compel a witness (Chandler, an accomplice in the defendant’s offenses) who asserted his Fifth Amendment privilege against self-incrimination to testify or to assert the privilege in the presence of the jury:

Chandler — who had entered a guilty plea, but was awaiting sentencing — was produced in court. Outside the presence of the jury, Chandler’s counsel indicated that Chandler intended to exercise his privilege against self-incrimination based on the possibility that he could further incriminate himself, expose himself to perjury charges and/or provide testimony that could adversely impact his upcoming sentencing proceeding. Chandler confirmed under oath that he would invoke the privilege if called as a witness and, when questioned by defendant in the context of that inquiry, did in fact invoke the privilege. Supreme Court acknowledged that Chandler’s plea agreement was contingent upon “no information coming to the [c]ourt’s attention about prior criminal conduct that the [c]ourt did not know about.” Such unknown prior criminal conduct could potentially include crimes relating to defendant’s claim that Chandler coerced him into participating in the schemes to defraud. There was no basis for Supreme Court to conclude that Chandler’s “invocation of the privilege was clearly contumacious, nor was it patently clear that [Chandler’s testimony] could not subject him to prosecution” … . Accordingly, we discern no abuse of discretion in Supreme Court’s refusal to compel Chandler to testify or to require him to assert the privilege in the presence of the jury … . Although defendant certainly had the right to call witnesses and present a defense, he had “no right to compel testimony over a claim of recognized privilege” … . People v Jones, 2019 NY Slip Op 07647, Third Dept 10-24-19

 

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PLAINTIFF DID NOT HAVE STANDING TO CONTEST THE TOWN’S NEGATIVE DECLARATION PURSUANT TO SEQRA RE THE PROPOSED SEWER DISTRICT; PLAINTIFF’S ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 AND WAS THEREFORE TIME-BARRED; PLAINTIFF DID NOT HAVE A FIRST AMENDMENT RIGHT TO A RESPONSE TO HIS COMPLAINT TO THE TOWN RE THE SEWER DISTRICT (THIRD DEPT).

The Third Department determined plaintiff did not have standing to contest the negative declaration issued by the town under the State Environmental Quality Review Act (SEQRA) because the sewer construction approved by the town was 15 miles from plaintiff’s property. The Third Department further found that plaintiff’s actions should have been brought as an Article 78 and therefore was time-barred, and his First Amendment arguments, alleging the town should have responded to his “Petition for the Redress of Grievances Regarding the Proposed [sewer district].” were meritless:

Plaintiff does not have standing to raise the SEQRA claims. “In land use matters especially, [the Court of Appeals] ha[s] long imposed the limitation that the plaintiff, for standing purposes, must show that [he or she] would suffer direct harm, injury that is in some way different from that of the public at large [and] [t]his requirement applies whether the challenge to governmental action is based on a SEQRA violation, or other grounds” … .Plaintiff does not reside in the Town. Although his homestead apparently straddles the Town line such that 1.2 acres of his land is situated in the Town, his property is located outside of — and approximately 15 miles away from — the sewer district. Moreover, plaintiff’s status as a taxpayer, by itself, does not grant him standing to challenge the establishment of the sewer district … . …

Plaintiff’s SEQRA challenge is also time-barred. Regardless of how a plaintiff may label or style his or her claim, courts must look to the core of the underlying claim and the relief sought and, if the claim could have been properly addressed in the context of a CPLR article 78 proceeding, a four-month statute of limitations will apply … . * * *

… [T]he First Amendment does not “guarantee[] a citizen’s right to receive a government response to or official consideration of a petition for redress of grievances” … . Schulz v Town Bd. of the Town of Queensbury, 2019 NY Slip Op 07667, Third Dept 10-24-19

 

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PLAINTIFF’S ACTION WAS NOT TIME-BARRED BECAUSE THE SIX-MONTH LIMITATION PERIOD IN THE SUBCONTRACT EXPIRED BEFORE SUIT COULD BE BROUGHT; THE TERMS OF THE ONE-YEAR LIMITATION PERIOD IN THE LABOR AND MATERIAL BOND CONFLICTED WITH THE REQUIREMENTS OF THE STATE FINANCE LAW; THE STATE FINANCE LAW CONTROLS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff-subcontractor’s breach of contract action against the general contractor and the insurance company (Liberty Mutual) which issued the labor and material payment bond for the construction work should not have been dismissed, and plaintiff was entitled to summary judgment on its action against the general contractor. The Third Department held that the six-month statute of limitations in the subcontract and the one-year statute of limitations in the bond did not render the actions time-barred:

“A ‘limitation period’ that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim” … . The conflict in the subcontractor agreement between the limitation period and the payment provisions had the effect of nullifying plaintiff’s breach of contract claim; thus, the six-month limitation period is unreasonable and unenforceable, and Supreme Court should not have dismissed plaintiff’s complaint as time-barred … . * * *

State Finance Law § 137 (4) (b) sets forth a later accrual date than the payment bond, providing that “no action on a payment bond furnished pursuant to [State Finance Law § 137] shall be commenced after the expiration of one year from the date on which the public improvement has been completed and accepted by the public owner” (emphasis added). The provisions of State Finance Law § 137 govern bonds furnished pursuant to that statute, and, although parties may agree to expand the statute’s protections, they may not limit them … . As the accrual date set forth in the first part of the contractual limitation provision conflicts with State Finance Law § 137 (4) (b), the second part of the provision must be given effect, and the bond agreement must be deemed to be amended to provide for the accrual date set forth in the statute … . The record does not reveal the date on which the project was accepted … for this purpose. Accordingly, there are issues of fact as to when plaintiff’s cause of action against Liberty Mutual accrued and whether it is time-barred, and summary judgment dismissing the complaint against Liberty should not have been granted … . Digesare Mech., Inc. v U.W. Marx, Inc., 2019 NY Slip Op 07668, Third Dept 10-24-19

 

PETITIONERS VIOLATED THE ENVIRONMENTAL CONSERVATION LAW BY FILLING BELOW THE HIGH WATER MARK OF A POND; THE POND MET THE DEFINITION OF ‘NAVIGABLE WATERS’ AND WAS THEREFORE SUBJECT TO THE STATUTORY PROHIBITION (THIRD DEPT).

The Third Department determined the petitioners had violated the Environmental Conservation Law by filling below the high water mark of a pond and were properly fined $10,000. With respect to whether the pond constituted “navigable waters” (to which the relevant statute applies) the court explained:

… “[N]o person . . . shall excavate or place fill below the mean high water level in any of the navigable waters of the state . . . without a permit” (ECL 15-0505 [1]). Petitioners argue that the evidence failed to show that South Long Pond was a navigable water. We disagree. Under the common law, a water is navigable in fact if it provides “practical utility to the public as a means for transportation” … . Furthermore, “while the purpose or type of use remains important, of paramount concern is the capacity of the [water] for transport, whether for trade or travel” … . Petitioners’ neighbor testified at the hearing that she observed other individuals use boats or canoes on South Long Pond and that she had personally accessed South Long Pond by boat from Dyken Pond. A biologist with respondent’s Bureau of Fisheries likewise testified that he was able to navigate between South Long Pond and Dyken Pond by boat and that there was a boat launch on Dyken Pond. He further testified that navigable waters do not include those waters that are “surrounded by land [and] held in a single private ownership at every point in their total area.” Accordingly, we conclude that substantial evidence supports the Commissioner’s determination that South Long Pond was a navigable water To that end, petitioners’ related claim that respondent lacked subject matter jurisdiction because South Long Pond was not a navigable water is without merit. Matter of Stasack v New York State Dept. of Envtl. Conservation, 2019 NY Slip Op 07669, Third Dept 10-23-19

 

STATE MUST COLLECTIVELY BARGAIN WITH THE UNION FOR THE PUBLIC EMPLOYEES (PEF) BEFORE REQUIRING DOCUMENTATION TO SUPPORT SICK LEAVE (THIRD DEPT).

The Third Department determined that the state (petitioner) was required to collectively bargain with the union (PEF) representing state employees before requiring a doctor’s note explaining absences. No such documentation had been required since 1982:

… [T]he record reveals that, since 1982, it was not the policy of RPC to routinely require an employee to submit a doctor’s certificate for each instance of unscheduled absence. Although the policy included certain exceptions where documentation could be required, none of these exceptions related to the new restrictions that petitioner imposed. The testimony of Karen Spotford, who has been employed at RPC since September 1982 and had served as the Council Leader for PEF since 2003, confirmed this course of conduct, and no evidence was adduced that the policy was applied other than as written. Accordingly, the new restrictions presented an altered policy from the one that had been consistently applied uninterrupted for at least 30 years. Petitioner has not proffered any evidence demonstrating that it negotiated with PEF prior to altering this policy. Therefore, substantial evidence supports PERB’s [Public Employment Relations Board’s] determination that a past practice existed and that petitioner engaged in an improper practice by failing to engage in collective bargaining prior to altering the past practice to require medical documentation for individual days of sick leave … . Matter of State of New York v New York State Pub. Empl. Relations Bd., 2019 NY Slip Op 07670, Third Dept 10-24-19

 

MEDICAL PROVIDER’S REQUEST FOR A VARIANCE ALLOWING PAYMENT FOR CLAIMANT’S TREATMENT WITH MEDICAL MARIJUANA SHOULD HAVE BEEN CONSIDERED FOR PROSPECTIVE TREATMENT OF CHRONIC PAIN (THIRD DEPT).

The Third Department determined the treating medical provider’s request that the cost of claimant’s treatment with medical marijuana (called a “variance”) be covered by workers’ compensation was properly denied for past treatment but should have been considered for future treatment:

Attached to the August 2017 variance request from claimant’s treating medical provider was a July 2017 medical report in which the provider summarized claimant’s pain management regimen and reviewed the various “beneficial effects of the medical mari[h]uana” that claimant had received. The provider reported, among other things, that claimant’s sleep has improved and pain was reduced “since using medical marihuana,” that medical marihuana “allowed him to participate more with his wife and children” and that he “[e]motionally feels much improved” as a result of using medical marihuana. The treating medical provider also noted that claimant was experiencing a “[f]inancial burden with continuing an optimal dose of the medical THC.”

In our view, the Board properly denied the variance request for medical care but only to the extent such care had already been provided (see 12 NYCRR 324.3 [a] [1]). In an instance such as here, however, where the claimant has a chronic pain condition necessitating ongoing treatment, the Board should have addressed the merits of claimant’s variance request for prospective medical marihuana treatment. Matter of Kluge v Town of Tonawanda, 2019 NY Slip Op 07470, Third Dept 10-17-19

 

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FAMILY COURT SHOULD NOT HAVE RELINQUISHED JURISDICTION WITHOUT CONSIDERING THE INCONVENIENT FORUM FACTORS MANDATED BY THE DOMESTIC RELATIONS LAW; MOTHER HAD RELOCATED TO FLORIDA WITH THE CHILDREN AND FATHER WAS SEEKING TELEPHONE AND ELECTRONIC CONTACT WITH THE CHILDREN (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have relinquished jurisdiction without considering the factors required by statute before finding New York to be an inconvenient forum. Mother had relocated to Florida with the children and father brought a petition and an order to show cause alleging mother refused to allow telephone and electronic contact with the children:

… [M]other’s counsel made a request for dismissal of the petition on jurisdictional grounds pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law art 5-A [hereinafter UCCJEA]). The father opposed this request, advising that he had not received the notice of limited appearance and did not know that jurisdiction would be contested at the initial appearance. Following a brief discussion with counsel, Family Court granted the mother’s request, dismissed the petition, denied the relief sought in the order to show cause and directed all further proceedings to take place in Florida. The father appeals.

Family Court erred in summarily relinquishing jurisdiction. As the court acknowledged, it had exclusive continuing jurisdiction over the matter pursuant to the UCCJEA … . Although a court may decline to exercise such jurisdiction upon finding that New York is an inconvenient forum and another state is a more appropriate forum … , such a determination must be made in accord with the statutory directives established within Domestic Relations Law § 76-f. The statutory requirements were not met here. Matter of Cody RR. v Alana SS., 2019 NY Slip Op 07471, Third Dept 10-17-19

 

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