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FAMILY COURT SHOULD NOT HAVE ORDERED A GENETIC MARKER TEST WITHOUT A HEARING AND THE CHILD DID NOT RECEIVE ADEQUATE ASSISTANCE OF COUNSEL (THIRD DEPT).

The Third Department determined Family Court should not have ordered a genetic marker paternity test without a hearing and the child did not receive adequate assistance of counsel:

The attorney for the child (hereinafter AFC) informed the court that, through discussions with the grandmother, the AFC learned that the child might also hold a belief that someone else is his father. The record does not give any indication that the AFC discussed with the child his belief as to who his father is. Beyond a few short and scattered statements, there was no substantive evidence or discussion of who has a parent-child relationship with the child and whether, due to equitable estoppel, a genetic marker test would not be in the child’s best interests. The court’s order is reflective of this, as it strictly relates to how the test is to be carried out and contains no case-specific discussion. Accordingly, Family Court did not possess adequate information to determine the child’s best interests and, as such, it erred in ordering genetic marker testing without first conducting a hearing … .

Additionally, we find that the child did not receive the effective assistance of counsel. The record is bereft of evidence indicating that the AFC consulted with the child, who was from 4½ to 6 years old throughout the time of this litigation … . We recognize that such consultation runs the risk of raising parentage concerns not harbored by the child; nevertheless, a patient, careful and nuanced inquiry is not only possible, but necessary … . “Counsel’s failure to consult with and advise the child to the extent of and in a manner consistent with the child’s capabilities constitutes a failure to meet [his or her] essential responsibilities as the [AFC]” … . Inasmuch as consultation with the child and subsequent communication of the child’s position to Family Court are of the utmost importance … , it is clear that the child did not receive meaningful representation … . Matter of Schenectady County Dept. of Social Servs. v Joshua BB., 2019 NY Slip Op 00335, Third Dept 1-17-19

 

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TERRORISM CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE, THERE WAS NO EVIDENCE DEFENDANT INTENDED TO INFLUENCE THE POLICY OR ACTIONS OF THE SHERIFF’S OFFICE WHEN HE SAID HE WAS GOING TO ‘COME BACK AND SHOOT THE PLACE DOWN’ (THIRD DEPT).

The Third Department, reversing defendant’s “terrorism” conviction after trial, determined there was legally insufficient evidence defendant intended to influence the policy or actions of a governmental body, here the Warren County Sheriff’s Office (WCSO). When defendant was told at the sheriff’s office that his certificate of disposition was insufficient and defendant’s property could not be returned to him, he allegedly said he would “come back and shoot the place down.” He was convicted of making a terroristic threat and sentenced to five years in prison:

… [T]he record contains no evidence of a necessary element of the crime of making a terroristic threat — that defendant intended to influence a policy of a governmental unit by intimidation or coercion, or that he intended to affect the conduct of a unit of government by murder, assassination or kidnapping. [The sheriff’s evidence custodian] testified that as defendant exited the lobby of the WCSO building, he was mumbling to himself and she “heard the word shoot.” She then asked defendant what he had said, and he replied by stating “come back and shoot the place down.” Defendant made no statement relating his threat to any policy of the WCSO or demanding that it take any specific action. People v Kaplan, 2019 NY Slip Op 00329, Third Dept 1-17-19

 

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THE THIRD DEPT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION AND VACATED DEFENDANT’S PLEA BECAUSE HE WAS NOT ADEQUATELY INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, exercising its interest of justice jurisdiction, over a two-justice dissent, determined defendant was not adequately informed of the rights he was giving up by pleading guilty:

Defendant contends that his plea was not knowing, voluntary and intelligent because County Court failed to advise him of the constitutional rights he was waiving by pleading guilty. Although defendant failed to preserve this contention for our review through an appropriate postallocution motion … , we nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment … . …

… [D]uring the abbreviated plea colloquy, County Court briefly advised defendant that, if he were to plead guilty, he would be giving up his “right to a trial, . . . the right to testify at that trial, to call witnesses and to cross-examine the People’s witnesses.” Significantly, County Court did not advise defendant that he had a right to a jury trial or that he would be waiving the privilege against self-incrimination by entering a guilty plea … . Further, the court failed to obtain any assurance that defendant had discussed with counsel the trial-related rights that are automatically forfeited by pleading guilty or the constitutional implications of a guilty plea … .

From the dissent:

… .[W]e do not think that the unpreserved error cited by the majority, standing alone, necessitates this Court exercising its interest of justice jurisdiction to reverse the judgment of conviction as there is nothing compelling about this case that “cries out for fundamental justice beyond the confines of conventional considerations” … . People v Demkovich, 2019 NY Slip Op 00326, Third Dept 1-17-19

 

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THIRD DEPT DECLINED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO REVIEW WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE RIGHTS SHE WAS GIVING UP BY PLEADING GUILTY, TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, over a two-justice dissent, declined to exercise its interest of justice jurisdiction to review whether defendant was adequately informed of the rights she was giving up by pleading guilty:

… [W]e find that this is not a proper matter for the exercise of our interest of justice jurisdiction. Defendant has a lengthy criminal history and admitted at the time of the plea that she was guilty of possessing heroin with the intent to sell it. Defendant was represented by counsel and entered into a plea agreement with a favorable sentence. Although defendant later filed a motion to withdraw her plea, she elected to withdraw the motion after being granted an adjournment and conferring with counsel. Significantly, defendant has since served her negotiated sentence and been released from custody; however, if this conviction is reversed, defendant once again faces prosecution for the original charge, which, if convicted, carries a greater sentencing range … . …

From the dissent:

Our review of the plea colloquy reveals that County Court engaged in an extremely limited exchange with defendant, advising her only that, by pleading guilty, she would forever relinquish her “right to go to trial, the right to testify, to call witnesses, [and to] cross-examine the People’s witness[es].” Critically, there was no discussion of the privilege against self-incrimination, the right to be tried by a jury or whether defendant had conferred with counsel and understood the constitutional rights that she was automatically waiving by pleading guilty … . People v Glover, 2019 NY Slip Op 00325, Third Dept 1-17-19

 

DEFENDANT WAS REQUIRED TO WEAR AN ALCOHOL MONITORING DEVICE AS A CONDITION OF PROBATION BUT WAS UNABLE TO PAY FOR IT, THE PEOPLE DID NOT DEMONSTRATE DEFENDANT’S FAILURE TO PAY WAS WILLFUL, THEREFORE COUNTY COURT WAS OBLIGATED TO CONSIDER PUNISHMENT OTHER THAN INCARCERATION (THIRD DEPT).

The Third Department, reversing County Court, determined the People did not make a sufficient showing that defendant willfully failed to pay for the alcohol monitoring device (SCRAM bracelet). Wearing the bracelet, which cost $11 per day, was a requirement of defendant’s probation. County Court was obligated to consider punishment other than imprisonment because the evidence supported defendant’s inability to pay:

We agree with defendant that County Court erred in finding that the People established by a preponderance of the evidence that defendant violated the terms and conditions of his probation by willfully refusing to pay or failing to make sufficient good faith efforts to pay the cost of the SCRAM monitoring. …

… .[T]he record lacks a basis to substantiate a finding that defendant willfully refused to make the required payments. Moreover, the hearing testimony establishes that defendant made sufficient bona fide efforts to acquire the fiscal resources to pay the costs associated with SCRAM monitoring and that he could not do so as a result of his indigence, which resulted, at least in part, from the serious injuries that he sustained in August 2013. In our view, County Court was therefore required to “consider alternate measures of punishment other than imprisonment” and erred in failing to do so … . People v Hakes, 2019 NY Slip Op 00324, Third Dept 1-17-19

 

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COURT ORDER WAS AMBIGUOUS AND ERRONEOUS AND COULD NOT THEREFORE BE THE BASIS OF A CONTEMPT FINDING AND SANCTIONS (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a proceeding concerning the guardianship and trust assets of a disabled person, determined the trustee should not have been held in contempt based upon an ambiguous and erroneous court order and sanctions against the trustee were not justified in light of the ambiguity of and error in the order:

… [W]e find that, however uncooperative and dilatory the trustee was, [the court evaluator] did not demonstrate by clear and convincing evidence that the trustee violated a “lawful, clear and unequivocal order” when he did not pay the fee award from the unfunded, unexecuted 2006 SNT [supplemental needs trust] as directed in the ex parte order and when he instead cross-moved to vacate that order … . Moreover, given that the ex parte order referred to an incorrect SNT, which was not funded or executed, an error of which Supreme Court was made aware, the court should have granted the trustee’s motion to vacate the ex parte order … . …

A court may, in its discretion, award any party or counsel in a civil matter “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable [counsel] fees, resulting from frivolous conduct” and “may impose financial sanctions upon any party or attorney” for frivolous conduct … . … However, such sanctions and costs may be imposed “only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate” … . …  [G]iven … the fact that the court orders were ambiguous or directed payment out of an incorrect, unfunded SNT, the trustee’s conduct in response to those orders, much of it based upon the advice of counsel, was not shown to be frivolous … . Matter of James H., 2019 NY Slip Op 00170, Second Dept 1-10-19

 

UNLIKE AN APPLICATION FOR AN ADMINISTRATIVE REVIEW OF A WORKERS’ COMPENSATION LAW JUDGE’S (WCLJ’S) DECISION, WHICH HAS A 30-DAY TIME LIMIT, AN APPLICATION FOR A REHEARING OR TO REOPEN A CLAIM MUST BE MADE IN A REASONABLE TIME (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board applied the wrong criteria to claimant’s attempt to reopen her claim or seek a rehearing:

We agree with claimant that the Board applied the incorrect statutory framework in evaluating her application. Although a party seeking administrative review of a WCLJ decision must file a written application for review with the Board within 30 days of the filing of the decision (see Workers’ Compensation Law § 23; 12 NYCRR 300.13 [a] [1]; [b] [3] [i]…), there is no statutorily-prescribed time period in which a claimant may seek rehearing or reopening of a claim; rather, the Board must determine if such application was made within a reasonable time after the claimant had knowledge of the facts constituting the grounds upon which the application is made (see 12 NYCRR 300.14 [b]…). Here, the Board did not assess whether claimant’s application was made within a reasonable time. Accordingly, the decision is reversed and the matter is remitted to the Board to evaluate claimant’s application as one for rehearing or reopening. Matter of Villagra v Sunrise Senior Living Mgt., 2019 NY Slip Op 00169, Third Dept 1-10-19

 

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PLAINTIFF’S WHISTEBLOWER ACTION AGAINST THE SCHOOL DISTRICT, ALLEGING THE DISTRICT TOOK RETALIATORY ACTION AGAINST PLAINTIFF BECAUSE OF ALLEGATIONS PLAINTIFF MADE AGAINST ANOTHER DISTRICT EMPLOYEE, SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff’s Civil Service Law 75-b action alleging disciplinary action against him was taken in retaliation for his reporting certain allegations about another school district employee should not have been dismissed. Defendant school district notified plaintiff, the district’s head bus driver, he was charged with a conflict of interest in violation of General Business Law 800 the day after plaintiff had made the allegations against the employee in front of the Board of Education.  Supreme Court should not have dismissed plaintiff’s whistleblower action by finding the General Municipal Law 800 conflict of interest charge, not plaintiff’s allegations against the employee, constituted the basis for the district’s disciplinary action against plaintiff:

Supreme Court … erred in the substantive application of Civil Service Law § 75-b relative to defendants’ contention that an independent basis existed for placing plaintiff on administrative leave. To assert a whistleblower claim under Civil Service Law § 75-b, plaintiff must allege, “(1) an adverse personnel action; (2) disclosure of information to a governmental body (a) regarding a violation of a law, rule, or regulation that endangers public health or safety, or (b) which [the plaintiff] reasonably believes to be true and which [he or] she reasonably believes constitutes an improper governmental action; and (3) a causal connection between the disclosure and the adverse personnel action”… . The element of causation requires “that ‘but for’ the protected activity, the adverse personnel action by the public employer would not have occurred”… . Here, the court found that the purported General Municipal Law violation sufficed as a separate and independent basis for the adverse action and dismissed plaintiff’s claim. However, even assuming that the General Municipal Law violation is ultimately demonstrated, the trial court must make “a separate determination regarding the employer’s motivation” to ensure against pretextual dismissals and “shield employees from being retaliated against by an employer’s selective application of theoretically neutral rules” … . Lilley v Greene Cent. Sch. Dist., 2019 NY Slip Op 00019, Third Dept 1-3-19

 

ALTHOUGH PETITIONER SLIPPED AND FELL ON ICE STEPPING OFF A BUS SHE WAS CLEANING, THE INCIDENT QUALIFIED AS AN ACCIDENT WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW ENTITLING PETITIONER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS, CLEANING BUSES WAS NOT PETITIONER’S NORMAL FUNCTION AND SHE HAD NEVER BEEN IN THE PARKING AREA WHERE SHE SLIPPED AND FELL (THIRD DEPT).

The Third Department, annulling the Comptroller’s ruling, determined that petitioner was injured in an accident as defined by the Retirement and Social Security Law and was therefore entitled to accidental disability retirement benefits. Petitioner, a school bus attendant, was injured when she slipped and fell on ice exiting a bus she had been asked to clean. Petitioner’s job was to help disabled kids on the bus and was cleaning a bus when she slipped and fell:

The record reveals that petitioner had never been directed to wash buses as part of her duties as a bus attendant. She was normally involved in assisting disabled children get on and off the bus, and ensuring their safety while riding the bus. Notably, her job description made no mention of tasks involving either cleaning or maintaining the buses. Moreover, and significantly, except for the date in question, petitioner had never been to the parking lot where the buses were kept. She was therefore wholly unfamiliar with the surface conditions. According to petitioner, on the date of the incident, it was cold with a few snow flurries and there were a few piles of old snow a couple of bus widths away ,,, . She testified that, as she exited the bus, her view of the ground was obstructed by the final step, which was longer than usual to accommodate disabled children getting on and off the bus. It was then that her foot made contact with the ice beneath the step, and she slipped and fell.

Under the circumstances presented, the incident was clearly sudden, unexpected and not a risk of petitioner’s ordinary job duties … . Matter of Larivey v DiNapoli, 2019 NY Slip Op 00018, Third Dept 1-3-19

 

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PLAINTIFF, WHO IS DEFENDANT’S SON, FELL FROM A LADDER WHEN ATTEMPTING TO INSPECT A DAMAGED CHIMNEY ON DEFENDANT’S RENTAL PROPERTY, QUESTIONS OF FACT ABOUT WHETHER PLAINTIFF WAS AN EMPLOYEE OR A VOLUNTEER, WHETHER THE INSPECTION WAS COVERED BY THE LABOR LAW, AND WHETHER DEFENDANT SUPERVISED PLAINTIFF’S WORK PRECLUDED SUMMARY JUDGMENT ON THE LABOR LAW 240 (1), 241 (6), 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (THIRD DEPT).

The Third Department determined that questions of fact about (1) whether plaintiff was an employee or a volunteer, (2) whether the inspection work came within the scope of Labor Law coverage, and (3) whether defendant supervised plaintiff’s work giving rise to Labor Law 200 or common-law negligence liability. Plaintiff is defendant’s son and lives with defendant. Defendant owns rental property next door. Defendant set up a ladder for plaintiff at the rental property and asked him to inspect the chimney because pieces of it had fallen to the ground. Plaintiff and the ladder fell when he attempted to inspect the chimney. Plaintiff brought Labor Law 240 (1), 241 (6), 200 and common-law negligence causes of action:

… [D]efendant’s testimony … established that she directed plaintiff on what to do when he inspected the chimney, had previously paid him for repairs and would have paid him if he had carried out the chimney cap repairs. We agree with Supreme Court that this testimony presents a triable issue of fact as to whether plaintiff was a volunteer or an employee within the meaning of the Labor Law and the Industrial Code … . …

As plaintiff and defendant both anticipated that plaintiff would carry out the repair if his inspection revealed that this would be feasible, this record does not permit a determination as a matter of law that the chimney inspection was “a separate phase easily distinguishable from” the actual repair, and thus outside the statutory protection … .

Although defendant asserts that she did not supervise plaintiff’s work and did not tell him how to use the ladder, her own testimony establishes that the ladder belonged to her and that she put it in place — allegedly on uneven ground — without plaintiff’s participation, directed him to use the ladder, and told him what to do in inspecting the chimney. Thus, there is a triable issue of fact as to whether defendant exercised supervisory control over the manner and methods by which plaintiff performed the task of inspecting the chimney … . Doskotch v Pisocki, 2019 NY Slip Op 00017, Third Dept 1-3-19

 

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