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CLAIMANT’S CONVICTION FOR THE UNLAWFUL MANUFACTURE OF METHAMPHETAMINES DID NOT CONSTITUTE PROOF THAT CLAIMANT PERFORMED WORK OR MADE FALSE STATEMENTS REGARDING WORK SUCH THAT CLAIMANT SHOULD BE DISQUALIFIED FROM RECEIVING BENEFITS UPON RELEASE FROM PRISON (THIRD DEPT).

The Third Department determined that claimant’s conviction for the unlawful manufacture of methamphetamine did not constitute work within the meaning of Workers’ Compensation Law 114-a. Therefore, claimant did not perform any work or make any false statements regarding work which would disqualify him from receiving benefits upon release from prison:

Workers’ Compensation Law § 114-a (1) provides, in relevant part, that “[i]f for the purpose of obtaining compensation . . ., or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation.” “In making such a determination, the Board is the sole arbiter of witness credibility and its determination as to whether a claimant violated Workers’ Compensation Law § 114-a will be upheld if supported by substantial evidence” … .

To be guilty of unlawful manufacture of methamphetamine in the third degree, a person must possess, at the same time and location, “[t]wo or more items of laboratory equipment and two or more precursors, chemical reagents or solvents in any combination,” with the intent to use such products to unlawfully manufacture, prepare, or produce methamphetamine, or knowing that another intends to do so (Penal Law § 220.73 [1]). The elements of the crime do not require that any work be performed. Substantial evidence supports the Board’s finding that the conviction alone is insufficient to establish any work activity by claimant or that he received any type of remuneration … . Matter of Stone v Saulsbury/Federal Signal, 2019 NY Slip Op 04250, Third Dept 5-30-19

 

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ALTHOUGH CLAIMANT WAS REHIRED AFTER THE STRIKE, THE EMPLOYER HAD NOT ASSURED CLAIMANT OF THE RIGHT TO RETURN TO WORK DURING THE STRIKE, THEREFORE THE EMPLOYER WAS NOT ENTITLED TO THE SEVEN-WEEK SUSPENSION OF UNEMPLOYMENT BENEFITS DURING A STRIKE PERMITTED BY LABOR LAW 592 (THIRD DEPT).

The Third Department determined claimant was entitled to unemployment insurance benefits and were not subject to the seven-week suspension of benefits during a strike (Labor Law 592). The suspension of benefits is not applicable where, as here, the employer indicates it is hiring permanent replacements for the strikers:

Although it is unclear which of claimants’ positions were filled by the permanent replacement workers, the record unequivocally demonstrates that none of the claimants were notified in a certified writing that they would be able to return to their prior positions upon the conclusion of the strike. Moreover, although claimants ultimately were allowed to return to their prior positions following ratification of the parties’ … Memorandum of Agreement ending the strike, that agreement is of no consequence because the employer failed to provide any written certification during either the seven-week suspension period or at any time prior to the conclusion of the strike assuring claimants that they would retain the right to return to their prior positions upon conclusion of the strike … . Matter of D’Altorio (Clare Rose, Inc.–Commissioner of Labor), 2019 NY Slip Op 04249, Third Dept 5-30-19

 

NEWSPAPER DELIVERY CARRIERS ARE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, a newspaper delivery carrier, was an employee of the The Hearst Corporation and was therefore entitled to unemployment insurance benefits:

… [T]he record demonstrates that Hearst established the delivery routes, determined the rate of pay for each route, provided carriers with customer lists containing the suggested order of delivery, handled customer complaints, imposed monetary penalties for unsatisfactory deliveries, prohibited carriers from inserting their own flyers into the newspapers without prior approval and required carriers to maintain a valid driver’s license and their own liability insurance. Notably, when new carriers were retained, Hearst arranged to have someone accompany them to show them their routes. In addition, Hearst imposed performance guidelines, set forth in written contracts like the ones it entered into with claimant, requiring carriers not to miss more than two deliveries per thousand. It also provided carriers, including claimant, with an orientation checklist setting forth additional information, such as delivery time deadlines, as well as the requirement that they provide a trained substitute if unable to cover a shift.

In view of the foregoing, the Board’s finding that Hearst exercised sufficient direction and control over claimant and similarly situated carriers so as to establish the existence of an employment relationship is supported by substantial evidence and is consistent with other newspaper delivery cases involving analogous facts … . Matter of Hennessy (Hearst Corp.–Commissioner of Labor), 2019 NY Slip Op 04245, Third Dept 5-30-19

 

INJURY CAUSED BY THE INHALATION OF ASPERGILLUS FUNGUS PROPERLY DEEMED A COMPENSABLE ACCIDENTAL INJURY ENTITLING CLAIMANT TO WORKERS’ COMPENSATION BENEFITS (THIRD DEPT).

The Third Department determined injury from the inhalation of aspergillus fungus was properly classified as an accidental injury entitling claimant to workers’ compensation benefits. Claimant was exposed to the fungus at work and suffers from allergic bronchopulmonary aspergillosis:

“To be compensable under the Workers’ Compensation Law, an accidental injury must arise both out of and in the course of employment” … . “Notably, this is a factual issue for the Board to resolve, and its determination will be upheld if supported by substantial evidence” … . “To establish an accidental work-related condition that developed over time, rather than from a sudden event, [a] claimant [is] required to demonstrate by competent medical evidence that his or her condition resulted from unusual environmental conditions or events assignable to something extraordinary” … . “[T]he concept of time-definiteness required of an accident can be thought of as applying to either the cause or the result, . . . and it is not decisive that a claimant is unable to pinpoint the exact date on which the incident occurred” … . Matter of Connolly v Covanta Energy Corp., 2019 NY Slip Op 04244, Third Dept 5-30-19

 

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THE LABOR LAW’S EXCLUSION OF FARM WORKERS FROM THE DEFINITION OF ‘EMPLOYEES’ ENTITLED TO ORGANIZE AND BARGAIN COLLECTIVELY VIOLATES THE NEW YORK CONSTITUTION AS A MATTER OF LAW (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing Supreme Court, over a dissent, determined that the NYS Employment Relations Act (SERA) is unconstitutional to the extent it excludes farm workers from the definition of “employees” given the right to organize and collectively bargain under the Act (Labor Law 701 [3] [a]):

… [P]laintiffs alleged that the farm laborer exclusion violates several provisions of the NY Constitution, including the right to organize and collectively bargain guaranteed to “[e]mployees” by article I, § 17 (first cause of action), the right to equal protection (second cause of action) (see NY Const, art I, § 11), the right to due process under the law (third cause of action) (see NY Const, art I, § 6), and the right to freedom of association (fourth cause of action) (see NY Const, art I, § 9).  * * *

… [T]he choice to use the broad and expansive word “employees” in NY Constitution, article I, § 17, without qualification or restriction, was a deliberate one that was meant to afford the constitutional right to organize and collectively bargain to any person who fits within the plain and ordinary meaning of that word … . * * *

… [W]e are firmly convinced that the constitutional right bestowed upon “employees” in this state “to organize and bargain collectively through representatives of their own choosing” (NY Const, art I, § 17) is a fundamental right, and that any statute impairing this right must withstand strict scrutiny … . Under strict scrutiny review, a statute that infringes upon a fundamental right is “void unless necessary to promote a compelling [s]tate interest and narrowly tailored to achieve that purpose”… . …

… [W]e declare that the exclusion of “individuals employed as farm laborers” from SERA’s definition of the term “employees,” set forth in Labor Law § 701 (3) (a), is unconstitutional as a matter of law. Hernandez v State of New York, 2019 NY Slip Op 04065, Third Dept 5-23-19

 

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THERE WAS NO SHOWING THAT THE DEPARTMENT OF SOCIAL SERVICE’S (DSS’S) VIOLATION OF A COURT ORDER LIMITING THE CHILD’S VISITATION WITH STEPMOTHER PREJUDICED THE CHILD’S RIGHTS, THEREFORE FAMILY COURT SHOULD NOT HAVE HELD DSS IN CONTEMPT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined that the Department of Social Services (DSS) should not have been held in contempt for violation of an order limiting the child’s visitation with the stepmother. DSS acknowledged it was aware of the order and acknowledged violating it. But there was no showing of prejudice to the child’s rights:

“A party seeking a finding of civil contempt based upon the violation of a court order must establish by clear and convincing evidence that the party charged with contempt had actual knowledge of a lawful, clear and unequivocal order, that the charged party disobeyed that order, and that this conduct prejudiced the opposing party’s rights” … . DSS does not dispute that it was aware of the court’s order limiting visitation with the stepmother, nor does it dispute that it did not follow that order, thereby establishing the first two elements for a civil contempt finding. Notably, however, DSS contacted the court immediately after receiving the order to advise that the stepmother had been certified as a foster parent and that the child was residing [*3]with her in that capacity. The AFC’s petition, filed shortly thereafter, alleged that DSS had violated the order and sought to have the child placed with the foster parents, but failed to allege or present evidence establishing, by clear and convincing evidence, that DSS’s failure to comply with the December 2016 order had “prejudiced the [child’s] rights” … . Matter of Nilesha RR. (Loretta RR.), 2019 NY Slip Op 04063, Third Dept 5-23-19

 

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THE TERM ‘AUTOMATIC OVERRIDE’ DOES NOT MANDATE THAT AN OFFENDER WITH A PRIOR SEX-CRIME FELONY BE CLASSIFIED A LEVEL THREE SEX OFFENDER, BOTH COUNTY COURT AND DEFENSE COUNSEL MISUNDERSTOOD THE TERM (THIRD DEPT). ​

The Third Department, reversing County Court, determined that both County Court and defense counsel misunderstood the meaning of “automatic override” in the context of whether an offender who has a prior felony sex-crime conviction mandates a level three classification:

… [T]he use of the words “automatically” or “automatic override” does not mandate that a particular individual be classified as a risk level three sex offender; rather, the “automatic” nature of the override results in a presumptive risk level three classification — a classification from which a court indeed may depart based upon the evidence presented … . Thus, “the application of the override for a prior felony sex crime is presumptive, not mandatory or automatic” … , and “[t]reating the presumptive override as mandatory is a ground for reversal” … .  …

Defense counsel’s misunderstanding of the override — as evidenced by his erroneous statement that defendant’s prior felony conviction for a sex crime resulted in “an automatic override” to a risk level three classification — deprived defendant of the opportunity to present factors in support of a downward departure; similarly, County Court’s misapplication of the override — premised upon the court’s mistaken belief that “a mandatory override to a risk level [three] status” was “required” — foreclosed any inquiry into whether the presumptive risk level three classification was in fact warranted … . People v Jones, 2019 NY Slip Op 04060, Third Dept 5-22-19

 

SENTENCING COURT MUST MAKE A THRESHOLD DETERMINATION WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS IN THIS FIRST DEGREE RAPE CASE, SENTENCE VACATED (THIRD DEPT).

The Third Department vacated defendant’s sentence for rape first degree and remitted the matter for a determination of defendant’s eligibility for youthful offender status:

… [A] “youth” is defined as “a person charged with a crime alleged to have been committed when he [or she] was at least [16] years old and less than [19] years old” (CPL 720.10 [1]), and an “eligible youth” is “a youth who is eligible to be found a youthful offender” (CPL 720.10 [2]). “Every youth is so eligible” (CPL 720.10 [2]) — subject to certain statutory exceptions including, as pertinent here, a conviction for “rape in the first degree . . ., except as provided in [CPL 720.10 (3)]” … . To that end, CPL 720.10 (3) provides, in relevant part, that “a youth who has been convicted of . . . rape in the first degree . . . is an eligible youth if the court determines that one or more [statutory] factors exist,” including “mitigating circumstances that bear directly upon the manner in which the crime was committed” … . …

Defendant was 17 years old at the time of the underlying offense and, despite his conviction of rape in the first degree, he was not statutorily precluded from being found to be an eligible youth (see CPL 720.10 [3]). Where, as here, a defendant has been convicted of an enumerated sex offense … , the sentencing court, “in order to fulfill its responsibility under CPL 720.20 (1) to make a youthful offender determination for every eligible youth, . . . must make the threshold determination as to whether the defendant is an eligible youth by considering the factors set forth in CPL 720.10 (3)” … — “‘even where the defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request’ pursuant to a plea bargain” … . People v Robertucci, 2019 NY Slip Op 04057, Third Dept 5-23-19

 

THE SUPERIOR COURT INFORMATION TO WHICH DEFENDANT PLED GUILTY WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the Superior Court Information (SCI) to which defendant pled guilty was jurisdictionally defective because it did not include an offense that was charged in the felony complaint or a lesser included offense:

… [T]he waiver of indictment and SCI are jurisdictionally defective because they did not charge an “offense for which the defendant was held for action of a grand jury” (CPL 195.20 …). Pursuant to CPL 195.20, a waiver of indictment must contain “each offense to be charged in the [SCI]” which “may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable.” To that end, “a defendant is held for the action of a [g]rand [j]ury on both the offense charged in the felony complaint as well as its lesser included offenses” … , because, “[f]or purposes of waiver of indictment, a charge that is a lesser included offense of a crime charged in the felony complaint is viewed as the ‘same offense’ and may be substituted for the original charge in a waiver of indictment and SCI”… . Accordingly, “a defendant may waive indictment and plead guilty to an SCI that names a different offense from that charged in the felony complaint only when the crime named in the SCI is a lesser included offense of the original charge” … . …

Inasmuch as it is possible to commit the crime charged in the felony complaint — possession of a loaded weapon — without committing the crime charged in the SCI — possession with intent to use the weapon unlawfully — the crime charged in the SCI is not a lesser included offense of the former and the SCI could not serve as a proper jurisdictional predicate for defendant’s guilty plea … . People v Diego, 2019 NY Slip Op 04054, Third Dept 5-22-19

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THE PUBLIC ASSISTANCE BENEFIT RECEIVED BY CLAIMANT DURING PARTICIPATION IN A WORK EXPERIENCE PROGRAM (WEP) CONSTITUTED WAGES FOR THE PURPOSE OF CALCULATING WORKERS’ COMPENSATION BENEFITS FOR ON THE JOB INJURY (THIRD DEPT).

The Third Department, in a matter of first impression, determined that the public assistance benefit received by claimant when he participated in the work experience program (WEP) constituted wages for the purpose of calculation the workers’ compensation benefit for injury on the job:

Wages are defined as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident” (Workers’ Compensation Law § 2 [9]). A recipient of public assistance may be required to participate in work activities, including work experience in the public sector (see Social Services Law §§ 331, 336 [1] [d]) … . The amount of assistance that a participant in a WEP receives is not determined by the number of hours worked; rather, the number of hours that a recipient of public assistance is required to participate in a WEP is determined by dividing the amount of assistance received by the higher of the federal or state minimum wage (see Social Services Law § 336-c [2] [b]). Significantly, the benefits of a recipient who fails to participate in a required WEP without good cause are subject to reduction or forfeiture (see Social Services Law § 342). The fact that recipients of public assistance must participate in a WEP to receive benefits without reduction means that the public assistance paid to WEP participants directly serves as compensation for the work performed … . Accordingly, we conclude that public assistance benefits paid to WEP participants are wages as defined in the Workers’ Compensation Law. We note that our conclusion is consistent with the Court of Appeals’ observation that that the “rate and method of payment of WEP workers” is determined by the Social Services Law … . Matter of Covert v Niagara County, 2019 NY Slip Op 03870, Third Dept 5-16-19

 

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