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REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing defendant’s conviction, determined the jury should have been allowed to hear and see the videotaped statements made by the detective to the defendant prior to the Miranda warnings and defendant’s confession to the possession of drugs found in her house. Defendant’s son had also been arrested and the detective told defendant her son was involved in a shooting and was going to prison. Defendant argued at trial that she falsely confessed to the possession of the drugs in an effort to protect her son:

… [T]he pre-Miranda portion of the recorded interview does not constitute impermissible hearsay. It consists of statements by the detective to defendant concerning her son’s gang membership, extensive criminal behavior and suspected involvement in the shooting that took place the night before. Defendant did not seek to introduce this portion of the recording to prove the truth of any of the statements made therein. Rather, she sought to put this evidence before the jury “to establish [her] state of mind upon hearing [them]” … .

Further, the substance of the pre-Miranda portion of the interrogation was relevant and material to the state of mind purposes for which defendant sought to offer it. It is beyond cavil that the circumstances surrounding the making of a confession, including the manner in which it was extracted, are relevant to the question of its voluntariness … . Thus, the statements and representations made by the detective during the pre-Miranda portion of the interrogation, and the environment in which they were uttered, had a bearing on whether defendant’s inculpatory statements were the product of a “‘free and unconstrained'” state of mind … . …

Under defendant’s theory of the case, the statements made by the detective during the pre-Miranda portion of the recording not only went to the voluntariness of her confession, but also established why she confessed falsely. Accordingly, County Court’s evidentiary rulings here excluded evidence directly relevant to a central issue in this case — defendant’s state of mind at the time that she confessed to possessing the drugs. People v Hall, 2018 NY Slip Op 02368, Third Dept 4-5-18

​CRIMINAL LAW (REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/HEARSAY (CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/CONFESSIONS (CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))/STATE OF MIND (HEARSAY, CRIMINAL LAW, REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT))

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VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined Supreme Court abused its discretion in dismissing a case in the interest of justice pursuant to Criminal Procedure Law 210.40. Defendant, a village code enforcement officer, was charged (along with the village mayor) with receiving a bribe and endangering the public health (among several other charges) in connection with the demolition of a building containing asbestos without proper abatement and approval. The mayor had pled guilty to three misdemeanors:

… [O]ur review of the record discloses that some factors certainly militate in favor of defendant — his lack of a criminal record or history of misconduct and the fact that he was removed from his position as the Code Enforcement Officer for the Village. They are, however, not wholly dispositive in this case … . … [W]e find that the court improvidently exercised its discretion in granting defendant’s motion inasmuch as this case does not present “extraordinary and compelling circumstance[s] . . . which cry out for fundamental justice” … . …

We do not … share the court’s view that it was unclear from the record that there was no harm to the environment or to individuals in the vicinity of the demolished building … . The record evidence demonstrates that due to the demolition, the asbestos — a legislatively-recognized carcinogenic agent …  — became friable, meaning that it could crumble and create a dust. More to the point, the record evidence reveals that not only did the dust that was created as a consequence of the demolition lead to the stopping of nearby traffic, workers associated with the demolition were exposed to it. Indeed, one worker stated that, based on his experience as a contractor, he believed that asbestos was present. …

We also find that Supreme Court incorrectly assessed that dismissing the indictment would have a minimal impact upon the confidence of the public in the criminal justice system … inasmuch as permitting a public servant to elude prosecution for an alleged abuse of his or her position’s power cannot be said to foster public confidence … . …

We do not agree with Supreme Court that imposing an authorized sentence upon defendant “would serve absolutely no purpose” had he been tried and convicted of the charged crimes … . To the contrary, deterring individuals from committing a similar crime in the future is a goal served by sentencing a defendant who has been convicted of a crime … . People v Snowden, 2018 NY Slip Op 02369, Third Dept 4-5-18

​CRIMINAL LAW (INTEREST OF JUSTICE DISMISSAL, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/ENVIRONMENTAL LAW (CRIMINAL LAW, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/MUNICIPAL LAW (CRIMINAL LAW,  VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/INTEREST OF JUSTICE (CRIMINAL LAW, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))/CRIMINAL PROCEDURE LAW 240.10 (INTEREST OF JUSTICE DISMISSAL, VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT))

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COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the trial court failed to make a searching inquiry after defendant indicated he wished to represent himself. The trial was conducted with standby counsel:

County Court failed to conduct a sufficient searching inquiry on the record here. At arraignment, defendant unequivocally expressed his intention to forgo his right to counsel and to instead represent and defend himself. Despite defendant’s clear expression of intent from the earliest possible opportunity, County Court made no immediate attempt, either at arraignment or subsequent pretrial proceedings, to conduct the requisite searching inquiry on the record. It was not until the first day of trial that County Court made any attempt to fulfill its obligation to determine whether defendant had knowingly, voluntarily and intelligently waived his right to counsel. At that time, County Court asked defendant a series of relevant questions relating to his background and pedigree, as well as his physical, mental and emotional capacity to represent himself. However, County Court’s belated searching inquiry fell short; the court neither “tested defendant’s understanding of choosing self-representation,” nor warned of “the ‘risks inherent in proceeding pro se'” … . At no point in this record did the court address the dangers and disadvantages of self-representation or impress upon defendant the “singular importance” of being represented by counsel … . In contrast, at trial and prior to trial, County Court made various unwarranted laudatory comments about defendant’s aptitude for self-representation, thereby giving defendant the probable impression that his decision to proceed without counsel was in his best interest. In fact, at several points in the record, defendant undermined any conclusion that his waiver of the right to counsel was knowing, voluntary and intelligent by demonstrating a fundamental misunderstanding of the role of an attorney. For example, as a result of defendant’s uninformed decision, neither he nor his standby counsel attended jury selection. …

The absence of the requisite searching inquiry may be the inadvertent product of County Court’s familiarity with defendant. However, County Court’s history and prior dealings with defendant does not relieve it of its obligation to conduct — and create a record of — the required inquiry … , for this inquiry serves the vital purpose of ensuring that defendant knew “what [he was] doing” and made the choice to forgo counsel with his “‘eyes open'” … . Moreover, neither County Court’s statements regarding its prior experience with defendant, nor its laudatory comments regarding defendant’s prior pro se performance, provide a reliable basis upon which we can conclude that defendant’s waiver of the right to counsel was knowing, voluntary and intelligent … , particularly given defendant’s statement that he had never before represented himself at a trial. People v Myers, 2018 NY Slip Op 02361, Third Dept 4-5-18

​CRIMINAL LAW (ATTORNEYS, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))/WAIVER (RIGHT TO COUNSEL, CRIMINAL LAW, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))/STANDBY COUNSEL (CRIMINAL LAW, COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT))

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DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s statement at sentencing that he didn’t mean to hurt the victim required further inquiry by the court:

Although the record does not disclose that defendant made the appropriate postallocution motion required of him to adequately preserve this claim for our review … , we find that defendant made statements at sentencing that cast doubt upon his guilt and the voluntariness of his plea, thus triggering the narrow exception to the preservation requirement and imposing a duty upon County Court “to inquire further to ensure that defendant’s guilty plea [was] knowing and voluntary”… . A trial court “‘should conduct a hearing [or further inquiry] when at plea-taking or upon sentencing it appears the defendant misapprehends the nature of the charges or the consequences of [the] plea'”… . In addition, statements made by a defendant that negate an element of the crime to which a plea has been entered, raise the possibility of a justification defense or otherwise suggest an involuntary plea “require[s] the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … .

At sentencing, defendant stated, “I was sorry that the person got hurt. I didn’t mean to hurt him. I was just trying to protect my family inside my home.” When confronted by County Court with the fact that he had allocuted during the plea colloquy that he intended to hurt the victim, defendant stated, “I was scared, so I intend[ed] to hurt him.” Without any further inquiry or discussion, County Court then proceeded to sentence defendant without providing him with an opportunity to withdraw his plea, notwithstanding his statements raising the possibility of a justification defense. People v Chin, 2018 NY Slip Op 02363, Third Dept 4-5-18

​CRIMINAL LAW (DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))/VACATE PLEA, MOTION TO (CRIMINAL LAW, APPEALS, DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))/ALLOCUTION (CRIMINAL LAW, APPEALS, DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, APPEALS, DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT))

FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT).

The Third Department reversed defendant’s conviction for conspiracy because the indictment did not allege an overt act:

We find merit in defendant’s pro se contention that count 4 of the indictment, charging him with conspiracy in the second degree, must be dismissed. Pursuant to Penal Law § 105.20, “[a] person shall not be convicted of conspiracy unless an overt act is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy” … . Here, count 4 neither alleges that an overt act was committed nor includes factual allegations describing such an act. There is no assertion that defendant or the codefendants took any action beyond agreeing to “engage in or cause the performance of [conduct constituting a class A felony].” Moreover, the indictment’s reference to Penal Law § 150.15 does not incorporate an overt act allegation by reference, as the requirement is not found in that provision … . Accordingly, defendant’s conviction of conspiracy in the second degree under count 4 of the indictment must be reversed and the sentence imposed thereon vacated, and said count must be dismissed as jurisdictionally defective … . People v Pichardo, 2018 NY Slip Op 02365, Third Dept 4-5-18

​CRIMINAL LAW (CONSPIRACY, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))/CONSPIRACY (CRIMINAL LAW, OVERT ACT, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))/OVERT ACT (CRIMINAL LAW, CONSPIRACY, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))/INDICTMENTS (JURISDICTION DEFECT, FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT))

QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT).

The Third Department determined the certificates of nomination authorized by the Independence Party of Westchester County were invalid because the quorum requirement was not met:

Turning to the merits, Election Law § 6-114 provides that “[p]arty nominations for an office to be filled at a special election shall be made in the manner prescribed by the rules of the party.” Petitioners alleged several violations of the rules of the County Independence Party, some of which are compelling. Our discussion focuses, however, upon rules defining the Executive Committee, following an initial meeting, as having seven members … and needing “four members present . . . in person or by proxy” to form a quorum … .

The affidavit of … the secretary of the County Independence Party … reflected that the nomination process fatally deviated from those rules. Vazquez averred that she and two other individuals attended the meeting … . …[F]our members were needed for a quorum. The quorum requirement in the rules leaves no room for interpretation and, contrary to respondents’ contention, the fact that some seats on the Executive Committee were unfilled does not affect the requirement’s applicability … . Accordingly, “a duly constituted quorum of the [E]xecutive [C]ommittee was not present when [respondent] was nominated,” and those committee members present had no authority to designate [respondent] as the County Independence Party nominee … . Matter of Loftus-Doran v Mayer, 2018 NY Slip Op 02284, Third Dept 3-30-18

ELECTION LAW (QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT))/QUORUM (ELECTION LAW, QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT))/CERTIFICATES OF NOMINATION  (ELECTION LAW, QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT))

CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined claimant, who delivered baked goods for the employer under a distribution contract, was an employee entitled to unemployment insurance benefits:

Initially, we are unpersuaded by the company’s contention that the Board erred in determining that claimant was an employee as a matter of law pursuant to Labor Law § 511 (1) (b). Labor Law § 511 (1) (b) defines “[e]mployment” for unemployment insurance purposes to include “any service by a person for an employer . . . as an agent-driver or commission-driver engaged in distributing . . . bakery products.” According to the company, claimant did not earn a commission but earned revenue upon selling the bakery products that he purchased at prices set by him. The record, however, supports the Board’s finding that the actual relationship between the parties did not constitute that of a buyer and seller.  …

Additionally, we find that substantial evidence supports the Board’s finding that the company exercised sufficient supervision, direction and control over claimant to establish an employer-employee relationship under common-law principles. The company retained numerous rights under the distribution agreement, including the right to set the price of the products sold to claimant and the right to negotiate with chain outlets to determine price and terms of sale, and it retained the authority to sell distribution rights purchased by claimant or perform his delivery obligations under certain circumstances. Claimant was further required to deliver fresh products and remove stale products in a defined area, sell any additional products provided by the company, cooperate with its marketing programs, remit settlement information to it each week, maintain certain chain outlet customers even if not profitable to him and not engage in any business activity that directly competed with the company or interfered with his obligations under the distribution agreement. In addition, claimant was interviewed by the company, relied on certain equipment and supplies provided by it, was paid on a weekly basis and was trained, instructed, supervised and monitored by a company manager regarding his deliveries. Matter of Cowan (Bimbo Foods Bakeries Distrib., Inc.–Commissioner of Labor), 2018 NY Slip Op 02229, Third Dept 3-29-18

UNEMPLOYMENT INSURANCE (CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/DISTRIBUTION CONTRACT (UNEMPLOYMENT INSURANCE, CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/LABOR LAW (LABOR LAW 511, UNEMPLOYMENT INSURANCE, CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/DELIVERIES  (UNEMPLOYMENT INSURANCE, CLAIMANT, WHO DISTRIBUTED BAKED GOODS UNDER A DISTRIBUTION CONTRACT, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

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THIRD DEPT OFFERS AN IN DEPTH EXPLANATION OF THE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) CRITERIA AND, REVERSING FAMILY COURT, FINDS THE CHILD MET THE FIVE CRITERIA (THIRD DEPT).

The Third Department, reversing Family Court, in a comprehensive decision explaining in depth the relevant law, made findings allowing the child to apply for special immigrant juvenile status (SJIS):

Before a child may seek SIJS from USCIS, a state court with jurisdiction over the juvenile must first issue a special findings order determining that (1) the child is under the age of 21, (2) the child is unmarried, (3) the child is dependent upon a juvenile court or legally committed to an individual appointed by that court, (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis under state law and (5) it would not be in the child’s best interests to return to his or her native country … . By issuing a special findings order, Family Court is not rendering an immigration determination … ; such order is merely a step in the process to assist USCIS and its parent agency, the Department of Homeland Security, in making the ultimate immigration determination … . Matter of Keilyn GG. (Marlene HH.), 2018 NY Slip Op 02226, Third Dept 3-29-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, THIRD DEPARTMENT OFFERS AN IN DEPTH EXPLANATION OF THE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) CRITERIA AND, REVERSING FAMILY COURT, FINDS THE CHILD MET THE FIVE CRITERIA (THIRD DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, THIRD DEPARTMENT OFFERS AN IN DEPTH EXPLANATION OF THE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) CRITERIA AND, REVERSING FAMILY COURT, FINDS THE CHILD MET THE FIVE CRITERIA (THIRD DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (THIRD DEPARTMENT OFFERS AN IN DEPTH EXPLANATION OF THE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) CRITERIA AND, REVERSING FAMILY COURT, FINDS THE CHILD MET THE FIVE CRITERIA (THIRD DEPT))

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WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT).

The Third Department, over a concurring opinion, determined the wife in this divorce proceeding raised a question of fact about the validity of the prenuptial agreement:

Viewing the evidence in a light most favorable to the wife, we find that the wife carried her burden of raising a material issue of fact. In opposition to the husband’s motion, the wife submitted an affidavit in which she provided a contrasting version of events surrounding the execution of the prenuptial agreement. She stated therein that shortly before the wedding day, the husband presented her with a prenuptial agreement. The wife, on the advice of her counsel, told the husband that she could not sign it or marry him unless he made some changes — namely, that she would get half the value of the land and house where they resided and 50% of everything they acquired during the marriage. The wife further averred that, on “the very day before the wedding” and as she was making final preparations for the wedding, the husband presented her with a revised prenuptial agreement, told her that he had made the requested changes and assured her that she would be taken care of for the rest of her life.

Moreover, the wife stated that she was given this new prenuptial agreement while standing outside the County Clerk’s office and that the husband “didn’t really give [her] time to even read the document, let alone take it back to the lawyer to look at it again.” She stated that she was feeling stressed and pressured with the wedding planning and “just signed the document.” These facts, if credited, give rise to the inference of overreaching … . Carter v Fairchild-Carter, 2018 NY Slip Op 02230, Third Dept 3-29-18

FAMILY LAW (PRENUPTIAL AGREEMENT, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, PRENUPTIAL AGREEMENT, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))/PRENUPTIAL AGREEMENT (FAMILY LAW, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))/OVERREACHING (FAMILY LAW, CONTRACT LAW, PRENUPTIAL AGREEMENT, WIFE RAISED A QUESTION OF FACT WHETHER PRENUPTIAL AGREEMENT WAS THE PRODUCT OF OVERREACHING (THIRD DEPT))

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ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT).

The Third Department, over a concurring opinion and an extensive dissenting opinion, determined that the petitioners’ attempt to contest the NYS Board of Elections’ failure to plug the LLC loophole was properly dismissed because the petitioners did not have standing and because the petition did not present a justiciable controversy. The LLC loophole treats limited liability companies as individuals for campaign contribution purposes. LLC’s therefore can contribute more than corporations and partnerships:

Essentially, petitioners ask this Court to direct respondent to rescind its 1996 opinion on the LLC Loophole and replace it with one that would provide what they assert to be a superior application of public policy. We may not grant this request without violating the vital principle of the separation of powers. That principle dictates that each branch of government “should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other branches” … . Here, the Legislature has conferred the authority to make directions pertaining to campaign financing practices upon respondent … . This Court cannot disturb respondent’s lawful directions with regard to LLCs without interfering with “policy-making and discretionary decisions that are reserved to the legislative and executive branches” … . The important issues raised here involve matters of discretion and policy that have been expressly entrusted to another branch of government and are “beyond the scope of judicial correction” … .

The nonjusticiable nature of this controversy is closely interconnected with the question of petitioners’ standing to pursue this matter — “an aspect of justiciability which, when challenged, must be considered at the outset of any litigation” … . To establish standing, petitioners must show that they have suffered an injury-in-fact and that the injury is within the zone of interests protected by the statute at issue .. Here, the dispute focuses upon the injury-in-fact element, which requires petitioners to establish that they have suffered or will suffer concrete harm that is “distinct from that of the general public” … . Matter of Brennan Ctr. for Justice At NYU Sch. of Law v New York State Bd. of Elections, 2018 NY Slip Op 02228, Second Dept 3-29-18

ELECTION LAW (LLC LOOPHOLE, ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT))/LIMITED LIABILITY COMPANY LAW (ELECTION LAW,  ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT))/CAMPAIGN CONTRIBUTIONS (ELECTION LAW, LLC LOOPHOLE, ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT))

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