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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

 

FOR CAUSE CHALLENGES TO TWO JURORS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the defense for cause challenges to two jurors should have been granted in this rape prosecution:

During voir dire, when counsel asked prospective juror No. 2 if she thought that this was the right case for her to sit on, she responded, “I’m not sure. I teach youth. I have five children. That’s where my sympathy would lie. . . . [T]he victim was probably about 20 years old. I would have a tendency to be biased in that direction.” Counsel then asked if those thoughts might make it difficult for prospective juror No. 2 to weigh the evidence. She responded, “I don’t think so. I think I could be biased. I’m sorry, unbiased. I do lean toward sympathy with the youth. That’s where my life is.” She then mentioned that she was very involved in church youth organizations and teaches ninth and tenth grade girls.

Prospective juror No. 3 acknowledged that he was having a hard time listening to the subject matter of the case during voir dire because he has four younger sisters and a daughter. When asked if he could “get beyond the allegations and really weigh the evidence” or whether that might be a problem, he responded, “I’d like to say I could be impartial, but until everything comes out it’s difficult to say.” No further questions were asked of these potential jurors by counsel or Supreme Court.

Supreme Court denied defendant’s challenges to these prospective jurors for cause, asserting that each had said he or she could be fair and impartial. Although prospective juror No. 2 did say she could be unbiased, she again stated immediately thereafter that she leaned toward sympathy with youth and worked with young girls, indicating an inclination toward the young female victim. Prospective juror No. 3 made an equivocal statement regarding his partiality. As neither prospective juror unequivocally stated that he or she could be impartial, the court should have posed questions to rehabilitate them by obtaining such assurances or, if rehabilitation was not possible, excused the prospective jurors … . People v Jackson, 2019 NY Slip Op 07442, Third Dept 10-17-19

 

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A SUPERIOR COURT INFORMATION CANNOT INCLUDE A JOINABLE OFFENSE WHICH IS GREATER IN DEGREE THAN THE OFFENSE FOR WHICH THE DEFENDANT WAS HELD FOR THE ACTION OF THE GRAND JURY (THIRD DEPT).

The Third Department, resolving a question of first impression, determined that a Superior Court Information (SCI) is jurisdictionally defective if it charges a joinable offense which is greater in degree than the offense for which the defendant was held for the action of the grand jury. The jurisdictional question survives the guilty plea, the failure to preserve and the waiver of appeal:

… [T]he constitutional waiver provision makes no reference to joinable offenses, providing only that prosecution by an SCI is limited to an offense or offenses for which a person is ‘held for the action of a grand jury upon a charge for such an offense’ (NY Const, art I, § 6 … ). A literal interpretation of the phrase ‘any offense or offenses properly joinable therewith’ in CPL 195.20 would permit the circumvention of this constitutional imperative by the simple expedient of permitting the inclusion of joinable offenses in a higher degree or grade that were never charged in a felony complaint. Such a statutory interpretation is inconsistent with and undermines the protections provided in NY Constitution, article I, § 6. It is well settled ‘that the Legislature in performing its law-making function may not enlarge upon or abridge the Constitution’ … , and that “courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional” … .

Applying these principles, we conclude that a joinable offense may not be included in a waiver of indictment and SCI unless that offense, or a lesser included offense, was charged in a felony complaint and the defendant was therefore held for the action of a grand jury upon that charge … . People v Coss, 2019 NY Slip Op 07445, Third Dept 10-17-19

 

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DEFENDANT’S PLEA TO A PROBATION VIOLATION WAS NOT VOLUNTARY AND MUST BE VACATED (THIRD DEPT). ​

The Third Department, reversing County Court, determined defendant’s plea to a probation violation was involuntary and must be vacated:

The record reflects that the People’s final plea offer came with a prison sentence of 1½ years followed by six years of PRS. When defendant indicated that he wanted to admit to the probation violation and argue for a more lenient sentence, County Court stated that it could not “override” the recommended sentence unless defendant declined the offer and proceeded to a hearing. The court further told defendant that, if he took the offer, it was “up to the People” as to whether a lesser sentence could be considered. The People then turned down defendant’s proposal to cap his sentencing exposure at 1½ years in prison and stated that they would recommend a higher sentence if defendant rejected the offer and were found guilty following a hearing. Defendant thereafter accepted the offer.

The foregoing reflects, and the People concede, that County Court abdicated its responsibility to carefully consider all facts available at the time of sentencing and fashion an appropriate sentence …. Inasmuch as the proceedings were also marred by the People’s admittedly inappropriate threat to seek a harsher sentence if defendant rejected the offer and was found guilty after a hearing, however, the plea itself was involuntary. Thus, defendant is entitled to vacatur of his plea … , People v Roberts, 2019 NY Slip Op 07448, Third Dept 10-17-19

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THE POLICE DID NOT HAVE A REASONABLE SUSPICION DEFENDANT WAS CONCEALING DRUGS ON HIS PERSON WHEN THEY CONDUCTED A STRIP SEARCH, DRUGS SEIZED DURING THE STRIP SEARCH SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing defendant’s drug-possession conviction, in a full-fledged opinion by Justice Mulvey, determined that the police did not have a reasonable suspicion defendant was concealing drugs on his person at the time of the strip search. The drugs found in the search should have been suppressed:

Strip searches “cannot be routinely undertaken as incident to all drug arrests,” but must be based on “specific and articulable facts which, along with any logical deductions, reasonably prompted the intrusion” … . Courts consider several factors when determining whether, under the totality of the circumstances, the police had reasonable suspicion to conduct “a strip search, including the defendant’s excessive nervousness, unusual conduct, information showing pertinent criminal propensities, informant’s tips, loose-fitting or bulky clothing, an itinerary suggestive of wrongdoing, incriminating matter discovered during a less intrusive search, lack of employment, indications of drug addiction, information derived from others arrested or searched contemporaneously, and evasive or contradictory answers to questions” … . * * *

Based on the information that Tibbs planned to purchase cocaine from Pinkney, made the round trip to New York City and routinely went to defendant’s apartment after such purchases to cook the powder cocaine into crack cocaine, along with other evidence of the conspiracy that had been ongoing for months, the officers had probable cause to believe that defendant had committed a conspiracy offense.

The evidence at the hearing did not, however, support a strip search. The officers knew that Tibbs had purchased a large quantity of cocaine and that drug traffickers frequently secrete narcotics on their person. Yet they could not identify the other people who were in the vehicle when it returned from New York City, leaving no proof that defendant had accompanied Tibbs to purchase the drugs. People v Turner, 2019 NY Slip Op 07443, Third Dept 10-17-19

 

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FATHER’S PETITION FOR CUSTODY OR PARENTING TIME SHOULD NOT HAVE DISMISSED BASED UPON AN ORDER OF PROTECTION ISSUED IN A CRIMINAL MATTER BEFORE THE CHILD WAS BORN (THIRD DEPT).

The Third Department, reversing Family Court, determined an order of protective issue in a criminal proceeding before the child was born did not prohibit contact between the child and father. Father’s petition seeking custody and/or parenting time should not have been dismissed on that ground:

At the initial appearance on the petition, Family Court stated that the order of protection had been issued in a criminal matter and that it barred the putative father from having any direct or indirect contact with the mother. The mother then moved to dismiss the petition, arguing that the order of protection rendered the petition moot. Family Court agreed and granted the motion. The putative father appeals.

The order of protection at issue — a copy of which is not in the record but the terms of which we take judicial notice — was issued prior to the child’s birth and does not bar the putative father from having contact with the child. It is not, as a result, fatal to the putative father’s petition … . Remittal is therefore required for Family Court to consider whether an order of filiation should be issued (see Family Ct Act § 564) and, if so, whether contact with the putative father would be in the best interests of the child and could be accomplished without contravening the terms of the order of protection … . Matter of Justin M. v Valencia N., 2019 NY Slip Op 07453, Third Dept 10-17-19

 

EXTRAORDINARY CIRCUMSTANCES WARRANTED AWARDING CUSTODY TO STEPMOTHER WITH VISITATION BY BOTH PARENTS (THIRD DEPT).

The Third Department determined that extraordinary circumstances warranted awarding custody of the child to the stepmother with visitation from both parents. The child had been living with father and stepmother for years when father moved out:

… [T]he child was residing with the other parent — the father — pursuant to a court order. The mother did not originally expressly relinquish the child to the stepmother. Rather, the stepmother assumed parental responsibilities due to her relationship with the father and based on his custodial authority. Nevertheless, in considering the cumulative effect of all the issues, we note that the mother had very little contact with the child for five years, including not seeing him at all for three continuous years, while the child was at a formative age and being raised by the father and the stepmother. Starting in 2012, the mother began consistently exercising her visitation and has continued to do so. However, the mother remained uninvolved in the child’s medical and educational life and was only minimally involved in his extracurricular activities. * * *

Moving to the best interests of the child, he has lived with the stepmother since he was a toddler, has a close bond with her and was described as inseparable from his half brother, who also lives with them. The child has always attended schools in the same district, has an educational plan to address his difficulties, participates in sports in that district and all of his friends are there. The mother lives in a different school district. The stepmother has been managing the child’s medical conditions for a decade, whereas the mother did not even know the names of his doctors. The stepmother has been communicating with the mother regarding visits and providing the majority of the transportation; the mother has no vehicle and her driver’s license is suspended, although she drove to drop the child off on at least some occasions. Matter of Shanna O. v James P., 2019 NY Slip Op 07455, Third Dept 10-17-19

 

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THE STATE UNIVERSITY OF NY BOARD OF TRUSTEES’ CHARTER SCHOOL COMMITTEE DID NOT HAVE THE AUTHORITY TO CHANGE THE TEACHER CERTIFICATION REQUIREMENTS FOR TEACHERS IN CHARTER SCHOOLS (THIRD DEPT).

The Third Department, after finding the petitioners in one of the two actions had the capacity to sue and standing, determined the State University of New York Board of Trustees’ Charter School Committee (the Committee) did not have the authority to promulgate regulations changing the teacher certification requirements for teachers in certain charter schools:

… [I]t is a basic principle of administrative law that an agency has only “those powers expressly conferred by its authorizing statute, as well as those required by necessary implication” … . Education Law § 355 (2-a) authorizes the Committee, “[n]otwithstanding any other provision of law, rule, or regulation to the contrary, . . . to promulgate regulations with respect to governance, structure and operations of [SUNY-authorized] charter schools.” Respondents assert that the regulations fall within this statutory authorization because teacher licensure pertains to the “operation” of SUNY-authorized charter schools. In analyzing this claim, we need not defer to the Committee’s interpretation of the Education Law, as “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent” … . * * *

We … conclude that the inclusion of the word “operation” in Education Law § 355 (2-a) does not authorize the Committee to promulgate regulations pertaining to teacher licensure and certification. We further find that the regulations conflict with provisions of the Education Law that authorize the Commissioner to prescribe regulations governing the certification of teachers and that require most teachers in charter schools and pre-kindergartens to be certified in the same manner as other public school teachers … . The Committee therefore exceeded its authority in promulgating the regulations … . Matter of New York State Bd. of Regents v State Univ. of N.Y., 2019 NY Slip Op 07458, Third Dept 10-17-19

 

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