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DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined defendant, an inmate, did not present sufficient proof that Department of Correctional Services (DOCS) personnel acted as agents for the police when investigating a killing in the prison. Defendant alleged that inmates were coerced into testifying against him and evidence of the coercion was Brady material which should have been provided to the defense by the prosecutor. The Third Department found defendant had not met his burden of proof concerning whether the DOCS personnel were acting as agents for the police. Rather, there was evidence that the DOCS investigation and the police investigation were separate and had different purposes. Therefore defendant’s motion to vacate his conviction was properly denied:

Several cases have held that “[e]vidence gathered by prison staff . . . generally is not ‘under the control or in the possession of the People or its agents, but [is] instead in the possession of an administrative agency that was not performing law enforcement functions'”… . That said, whether knowledge of a government official or employee may be imputed to the People appears to turn on whether participation in the criminal probe was an ancillary law enforcement task… or whether the level of cooperation between the employee and law enforcement in a particular criminal investigation renders the employee an agent of the People … . Under agency principles, “acts of agents, and the knowledge they acquire while acting within the scope of their authority are presumptively imputed to their principals”… . For example, “[w]hile social workers are generally not agents of the police,” in situations where they engage in a “joint venture” with police agencies to collaborate on child abuse or sexual abuse investigations, share information and a common purpose, and have a “cooperative working arrangement” with police, an agency relationship may exist such that the social workers’ knowledge is imputed to the People … . …

… [I]t appears that the State Police and IG [the DOCS Investigator General] were conducting parallel investigations — one criminal and one administrative, albeit with some obvious and necessary overlap — addressing different aspects of the situation… . The report from the lead IG investigator — who was not called to testify — reveals that he interviewed inmates with the State Police, gathered information for two months after the incident, conferred with State Police and met with the District Attorney. But the report indicates that the IG closed its case six months before defendant’s criminal trial, based on a finding that there was no evidence of staff misconduct, indicating the administrative focus of the IG’s investigation. People v Lewis, 2018 NY Slip Op 07980, Third Dept 11-21-18

CRIMINAL LAW (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/EVIDENCE (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, PROSECUTORS, BRADY MATERIAL, DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/BRADY MATERIAL (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/AGENCY (CRIMINAL LAW, JOINT INVESTIGATIONS, DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))/VACATE CONVICTION, MOTION TO  (DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT))

NEW YORK WORKERS’ COMPENSATION TREATMENT GUIDELINES APPLY TO CLAIMANTS WHO HAVE MOVED TO AND ARE TREATED IN OTHER STATES (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly ruled that the guidelines for back pain treatment applied to claimant in Nevada. Claimant qualified for benefits in New York in 1996 and moved to Nevada in 2005:

… [W]e disagree with claimant that the Board impermissibly departed from its earlier decisions, as the Board acknowledged such a departure in its May 2017 decision and articulated its reasons for doing so … . Moreover, we find that the Board’s decision to depart from its prior decisions and apply the guidelines to the out-of-state treatment received by claimant in this case was rational. “The Board has the authority to promulgate medical treatment guidelines defining the nature and scope of necessary treatment” … .. “An agency’s construction of its statutes and regulations will be upheld if rational and reasonable” … . …

There is no dispute that claimant, who was injured in New York but has since moved to Nevada, is entitled to continue to receive medical treatment from qualified physicians in her new state and that the employer remains liable for the reasonable value of necessary medical treatment from qualified physicians in her new state … . In our view, the plain language of the regulations governing the guidelines do not limit their applicability to such medical treatment provided to claimants in other states, and a “treating medical provider” includes “any physician, podiatrist, chiropractor or psychologist that is providing treatment and care to an injured worker pursuant to the Workers’ Compensation Law” without regard to, or limitation of, geographic location … . Consistent with the regulations, the guidelines also state that “[a]ny medical providerrendering services to a workers’ compensation patient must utilize the . . . [g]uidelines as provided for with respect to all work-related injuries and/or illnesses” … . Matter of Gasparro v Hospice of Dutchess County, 2018 NY Slip Op 07815, Third Dept 11-15-18

WORKERS’ COMPENSATION (NEW YORK WORKERS’ COMPENSATION TREATMENT GUIDELINES APPLY TO CLAIMANTS WHO HAVE MOVED TO AND ARE TREATED IN OTHER STATES (THIRD DEPT))

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CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT).

The Third Department determined claimant’s injuries did not arise out of his employment. Claimant, a farm worker, used his employer’s ATV to go across the street to where his girlfriend was moving into a house. There was evidence he may have drunk beer, which was prohibited by his employer. When crossing the street to return to the farm claimant was struck by a vehicle and injured:

Regardless of whether claimant was permitted to use the employer’s ATV or to take a break and leave the farm for a brief period of time before returning to work, the employer’s testimony makes clear that consuming alcohol on the job was not a permitted, acceptable or customary deviation from claimant’s employment … . As the record as a whole provides substantial evidence to support the Board’s finding that claimant was engaged in an impermissible deviation from his employment at the time of his accident, his resulting injuries did not arise out of and in the course of his employment and, therefore, are not compensable … . Matter of Button v Button, 2018 NY Slip Op 07809, Third Dept 11-15-18

WORKERS’ COMPENSATION (CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION, CLAIMANT LEFT HIS EMPLOYER’S FARM BRIEFLY USING HIS EMPLOYER’S ATV AND WAS STRUCK BY A VEHICLE WHEN HE ATTEMPTED TO RETURN TO THE FARM, THERE WAS EVIDENCE CLAIMANT CONSUMED ALCOHOL WHICH WAS PROHIBITED BY HIS EMPLOYER, CLAIMANT’S INJURIES DID NOT ARISE FROM HIS EMPLOYMENT, WORKER’S COMPENSATION CLAIM PROPERLY DENIED (THIRD DEPT))

LIMOUSINE DRIVER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined a limousine driver for XYZ was an employee entitled to unemployment insurance benefits:

XYZ imposed rules “regarding every aspect of claimant’s performance” and thereby “exercised control over the results produced [and, more importantly,] the means used” to service XYZ’s clients … . While XYZ was obligated to comply with the rules governing the for-hire car service industry established by the Taxi and Limousine Commission, the testimony and a comparative review of the rules together established that XYZ’s rules were significantly more specific and detailed or involved interpretations that often went well beyond the Commission’s rules … . Indeed, an officer of XYZ explained that these additional specific requirements were designed “to satisfy the customer expectation.” Thus, as we have consistently done in similar cases, we find that substantial evidence supports the Board’s factual determination that claimant was an employee of XYZ, despite the existence of evidence that might support a contrary conclusion … . Matter of Jung Yen Tsai (XYZ Two Way Radio Serv., Inc.–Commissioner of Labor), 2018 NY Slip Op 07807, Third Dept 11-15-18

UNEMPLOYMENT INSURANCE (LIMOUSINE DRIVER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/LIMOUSINE DRIVERS (UNEMPLOYMENT INSURANCE, LIMOUSINE DRIVER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the disciplinary determination, found that the misbehavior determination was not supported by substantial evidence. Petitioner was charged with attempting to mail gang related information. But there was no evidence connecting petitioner to the relevant documents:

… [T]he documentary evidence attached to the misbehavior report and submitted to this Court for in camera review consisted solely of three typewritten pages, which did not have any features or content that could identify petitioner as the author or sender, and did not include the envelope in which the pages were allegedly discovered … . The testimony given by the investigating correction officer, together with the statements that he made in the misbehavior report, established only that the three typewritten pages were forwarded to him from the mail room as mail that petitioner had attempted to send. The investigating correction officer did not testify to having any personal knowledge that petitioner was the sender of those pages. A mail room supervisor testified that, although she was aware that petitioner was the subject of a mail watch at one time, she could not recall the actual incident, and she did not offer any testimony that linked petitioner to the pages at issue… . Further, petitioner did not admit ownership of the documents or otherwise connect himself to them … . To the contrary, petitioner maintained his innocence throughout the administrative proceeding and asserted that he was being retaliated against for having lodged grievances against the mail room staff. In the absence of evidence connecting petitioner to the three typewritten pages, the underlying determination of guilt is not supported by substantial evidence … . Matter of Telesford v Annucci, 2018 NY Slip Op 07397, Third Dept 11-1-18

DISCIPLINARY HEARINGS (INMATES) (INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT))/EVIDENCE (DISCIPLINARY HEARINGS (INMATES), INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT))

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT).

The Third Department determined plaintiff was entitled to summary judgment in his Labor Law 240 (1) action result from a fall from an unsafe makeshift platform made by the plaintiff. Plaintiff alleged the lift with which he was provided could not be used and no other safety equipment was provided:

Defendant is a property owner subject to the statute and he provided no equipment to plaintiff aside from agreeing to rent a lift for plaintiff’s use. Plaintiff, at the time of his injury, was installing siding above a staircase running along the side of the building. He averred that the lift would not fit in the area, he was not provided with a traditional scaffold and he could not have used a “ladder jack” scaffold in the area due to both the equipment being in use elsewhere and the location of the staircase. Plaintiff accordingly fashioned a work platform from his A-frame ladder and a scaffolding plank known as a pick, running the pick between a rung of the ladder and the top landing of the staircase. The pick and ladder were not anchored to the ground or the wall, and plaintiff gave deposition testimony stating that he fell several feet when the contraption slid out from beneath him as he was pushing the new siding into place. An engineer retained by plaintiff opined that the unsecured makeshift platform was unsafe and that defendant violated Labor Law § 240 (1) by failing to furnish adequate safety equipment, such as a proper scaffold and a safety harness, that would have shielded plaintiff from injury. The foregoing was sufficient to “establish[] a prima facie showing of a statutory violation which was a proximate cause of plaintiff’s injuries, [shifting the burden] to defendant to submit evidentiary facts which would raise a factual issue on liability” … . …

Defendant responded by arguing that inconsistencies in plaintiff’s account over time raised a material question of fact as to how the accident occurred. * * * [The] variations did not suggest “that plaintiff’s fall and injuries were caused by anything other than the unsecured [pick and] ladder or that plaintiff’s own conduct was the sole proximate cause of the accident[.]” Cooper v Delliveneri, 2018 NY Slip Op 07396, Third Dept 11-1-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION DESPITE FALLING FROM AN UNSAFE MAKESHIFT PLATFORM MADE BY THE PLAINTIFF (THIRD DEPT))

THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT), ​

The Third Department, over a partial dissent, determined that the phrase “within five days” in a change of venue statute (CPLR 511) did not impose a five day waiting period:

Asserting that Ulster County was an improper venue for the proceeding, the Steeles served a timely written demand that the proceeding be tried in Oswego County (see CPLR 511 [b]). Four days later, the Steeles moved, in Ulster County, to change venue of the proceeding to Oswego County. The Aarons argue that the Steeles, by failing to wait five days after their demand to allow the Aarons an opportunity to provide a written consent to change venue, failed to comply with the statutory procedure and thereby were not entitled to a change of venue as of right. This argument is based on an interpretation that the language “unless within five days” places a hold on the defendant’s obligation to make a motion, during which time the defendant must simply wait for the plaintiff to respond to the demand (CPLR 511 [b]). We disagree with that interpretation of the statute.

The Aarons’ argument appears to focus exclusively on the phrase “unless within five days.” However, a plaintiff can choose not to respond to the demand, so the defendant may be sitting and waiting for nothing. In our view, the five-day window is a time limit on the plaintiff only, and the defendant is not required to refrain from doing anything during that period. Instead, the limits placed on a defendant under CPLR 511 (b) — other than the 15-day limit to move for change of venue — are contingent on whatever response the plaintiff may provide, rather than a five-day time period. While the five days are a limit on the plaintiff’s ability to respond to the demand, the defendant retains the ability to make the venue motion “unless . . . [the] plaintiff serves a written consent” agreeing to the venue selected by the defendant (CPLR 511 [b]). In other words, the important occurrence for the defendant is the plaintiff granting consent, not the passage of days. If the plaintiff consents to the demanded change in venue, the defendant may not move for such relief. In a situation where the defendant made a motion before the end of the plaintiff’s five-day response window and the plaintiff thereafter consented, the defendant would have to withdraw the motion (which would be unnecessary at that point anyway). Matter of Aaron v Steele, 2018 NY Slip Op 07393, Third Dept 11-1-18

CIVIL PROCEDURE (VENUE, THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))/CPLR 511 (VENUE, THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))/VENUE (THE PHRASE ‘WITHIN FIVE DAYS’ IN CPLR 511, A CHANGE OF VENUE STATUTE, DOES NOT IMPOSE A WAITING PERIOD FOR A MOTION TO CHANGE VENUE, THE MOTION MAY BE MADE WITHIN THE FIVE DAYS (THIRD DEPT))

STACKED SHEETROCK DID NOT PRESENT AN ELEVATION RELATED HAZARD AND DID NOT BLOCK A PASSAGEWAY, DEFENDANTS DID NOT EXERCISE CONTROL OVER THE STACKING OF THE SHEETROCK, LABOR LAW 240 (1), 241 (6), 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined the Labor Law 240 (1), 246 )1) and 200 causes of action were properly dismissed. The sheetrock which allegedly fell and struck plaintiff’s ankle was not an elevation-related hazard, did not block a passageway, and the defendants had not unloaded or stacked the sheetrock and did not exercise sufficient supervisory control to be liable in negligence:

The mere fact that a plaintiff was struck by an object that fell does not, by itself, give rise to liability under the statute … . Rather, a plaintiff must establish that “the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … . That said, “where a plaintiff was exposed to the usual and ordinary dangers of a construction site, and not the extraordinary elevation risks envisioned by Labor Law § 240 (1), the plaintiff cannot recover under the statute” … . …

The record indicates … that the sheetrock was stacked on its long side on the ground before it fell and that plaintiff was on the same level as the sheetrock. …

Regarding plaintiff’s cause of action under Labor Law § 241 (6), it was incumbent upon plaintiff to show that defendants violated an Industrial Code provision that imposed a specific standard of conduct … . Plaintiff failed in that regard. The record discloses that the sheetrock was stored in the corner of a second-floor room and did not “obstruct any passageway, walkway, stairway or other thoroughfare” … .

Turning to plaintiff’s remaining claims, “Labor Law § 200 codifies the common-law duty imposed upon . . . general contractors to maintain a safe work site” … . Where the injury stemmed from the methods and means in which a subcontractor performed its work, “there must be a showing of supervisory control and actual or constructive notice of the unsafe manner of performance” … . “Where a subcontractor creates a condition on the premises that results in an unreasonable risk of harm and that condition is a proximate cause of a worker’s injuries, then common-law negligence may be implicated” … . Wiley v Marjam Supply Co., Inc., 2018 NY Slip Op 07381, Third Dept 11-1-18

LABOR LAW-CONSTRUCTION LAW (STACKED SHEETROCK DID NOT PRESENT AN ELEVATION RELATED HAZARD AND DID NOT BLOCK A PASSAGEWAY, DEFENDANTS DID NOT EXERCISE CONTROL OVER THE STACKING OF THE SHEETROCK, LABOR LAW 240 (1), 241 (6), 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION PROPERLY DISMISSED (THIRD DEPT))

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NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined the respondent NYS Public Service Commission did not exceed its rule-making authority when it imposed a moratorium on energy service companies’ (ESCOs’) enrollments and renewals of customers who participate in utility low-income assistance programs (APPs):

Whether agency rulemaking infringes upon the Legislature’s policy-making powers is governed by the “four coalescing circumstances” set forth in Boreali v Axelrod (71 NY2d 1 [1987]): “whether (1) the regulatory agency balanced costs and benefits according to preexisting guidelines, or instead made value judgments entailing difficult and complex choices between broad policy goals to resolve social problems; (2) the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance; (3) the [L]egislature had unsuccessfully attempted to enact laws pertaining to the issue; and (4) the agency used special technical expertise in the applicable field” … . …

This Court recently observed that respondent had the statutory authority to require that, in all new and renewal contracts between an ESCO and a residential customer or small nonresidential customer, the ESCO must guarantee “savings in comparison to what the customer would have paid as a full service utility customer or provide at least 30% renewable electricity” … . Citing respondent’s “broad” statutory authority “to set just and reasonable tariff rates for gas and electric corporations pursuant to Public Service Law articles 1 and 4” and that the same discretion allowed respondent to open the state’s energy markets to ESCOs in the first instance, we observed that respondent may “impose limitations on ESCO rates as a condition to continued access” … . The moratorium at issue on this appeal is directly responsive to concerns that ESCOs were costing customers, particularly APPs, more money than if they had just used a utility, a result in direct conflict with the original purpose of opening the energy markets to ESCOs … . ​Matter of National Energy Marketers Assn. v New York State Pub. Serv. Commn., 2018 NY Slip Op 07378, Third Dept 11-1-18

ADMINISTRATIVE LAW (NYS PUBLIC SERVICE COMMISSION, UTILITIES, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/NYS PUBLIC SERVICE COMMISSION (ADMINISTRATIVE LAW, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/UTILITIES (LOW INCOME ASSISTANCE, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))/LOW INCOME ASSISTANCE (UTILITIES, NYS PUBLIC SERVICE COMMISSION PROPERLY IMPOSED A MORATORIUM ON ENERGY SERVICE COMPANIES’ ENROLLMENTS AND RENEWALS OF CUSTOMERS WHO PARTICIPATE IN UTILITY LOW INCOME ASSISTANCE PROGRAMS AS PART OF ITS AUTHORITY TO MAKE SURE LOW INCOME CUSTOMERS ARE NOT CHARGED MORE THAN THEY WOULD HAVE BEEN HAD THEY JUST USED A UTILITY (THIRD DEPT))

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GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, considering the validity of the plea in the interest of justice because the error was not preserved, determined there was no showing defendant understood the rights he was waiving by pleading guilty:

Defendant’s contention on appeal, however, is unpreserved for our review because, although defendant made a postplea motion to withdraw his guilty plea (see CPL 220.60 [3]), his motion was not premised upon the grounds now asserted — to wit, County Court’s alleged failure to adequately inform him of the constitutional rights that he was forfeiting by pleading guilty …  We nonetheless exercise our interest of justice jurisdiction to take corrective action and reverse the judgment (see CPL 470.15 [3] [c]…).

“When a defendant opts to plead guilty, he [or she] must waive certain constitutional rights — the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses”… . “While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . During the plea proceedings, County Court engaged in an abbreviated colloquy during which it made only a passing reference to certain rights that defendant was forfeiting by pleading guilty. Although defendant was advised of his right to a jury trial, the court did not mention the privilege against self-incrimination or the right to be confronted by witnesses… . The court also failed to establish adequately that defendant had consulted with his counsel specifically about his relinquishment of trial-related rights or the consequences of his guilty plea, “instead making a vague inquiry into whether defendant had spoken to defense counsel” …  about “the indictment, . . . the drug charge, and anything else that [was] important to [him]” … . With no affirmative showing on the record before us that defendant understood and voluntarily waived his constitutional rights at the time he entered his guilty plea, the plea was invalid and must be vacated … . People v Simon, 2018 NY Slip Op 07370, Third Dept 11-1-18

CRIMINAL LAW (GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT))/APPEALS (CRIMINAL LAW, (GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT))/GUILTY PLEA (GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE, NO SHOWING DEFENDANT UNDERSTOOD THE RIGHTS HE WAS WAIVING BY ENTERING THE PLEA (THIRD DEPT))

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