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HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY TO DETERMINE WHY AN INMATE WITNESS WHO HAD PREVIOUSLY AGREED TO TESTIFY LATER REFUSED, NEW HEARING ORDERED (THIRD DEPT).

The Third Department determined petitioner was entitled to a new hearing because the hearing officer did not make an adequate inquiry into the reasons an inmate witness who had previously agreed to testify later refused:

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Generally, we have held that, in situations where an inmate witness who had previously agreed to testify but later refuses without giving a reason, “it is incumbent upon the Hearing Officer to conduct a personal inquiry unless a genuine reason for the refusal is apparent from the record and the Hearing Officer makes a sufficient inquiry into the facts surrounding the refusal to ascertain its authenticity” … . While the personal inquiry by a hearing officer may be limited in situations where, as here, the requested witness is housed in a different correctional facility, the record does not reflect that the Hearing Officer made any attempt to personally interview the witness to confirm the reason for the refusal, to obtain a written refusal form from the witness containing such a reason or to call the correction officer who interviewed the witness to testify at the hearing. In our view, petitioner’s regulatory right to call this witness was not adequately protected and that part of the determination finding petitioner guilty of assault, refusing to obey a direct order and possessing a weapon, as charged in the first misbehavior report, must be annulled and remitted for a new hearing on these charges … . Matter of Radcliffe v Annucci, 2018 NY Slip Op 00505, Third Department 1-25-18

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY TO DETERMINE WHY AN INMATE WITNESS WHO HAD PREVIOUSLY AGREED TO TESTIFY LATER REFUSED, NEW HEARING ORDERED (THIRD DEPT))

FINDING THAT PETITIONER POSSESSED A WEAPON FOUND IN A CUBE SHARED WITH OTHER INMATES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED (THIRD DEPT).

The Third Department determined the finding that petitioner possessed a weapon which was found in a cube shared with other inmates was not supported by substantial evidence:

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Petitioner denied any knowledge of the weapon, and the record reflects that he shared the cube with other inmates. The cube was separated by a divider into two living areas, with petitioner and another inmate sharing one side and at least one other inmate housed on the other side. The correction officer who authorized the search, and was present when the weapon was found, testified that the weapon was discovered under the center of the divider. According to the officer, all the inmates housed in the cube had access to that area because the divider was movable and it could be easily lifted. The correction officer who discovered the weapon testified that it was located closer to the side of the divider where petitioner and another inmate were housed and that it would have been more difficult for inmates housed on the other side of the divider to place the weapon there. There is no evidence in the record to support a finding that petitioner possessed the weapon and, in our view, the evidence presented does not eliminate either the inmates housed on the other side of the divider or the inmate who shared petitioner’s side from being responsible for possessing it. Further, under the circumstances presented here, “we do not believe that a reasonable inference can be made that petitioner possessed this contraband simply because he had access to the area where the contraband was found and that it, to some extent, was under his control” … . Matter of Carter v Annucci, 2018 NY Slip Op 00501, Third Dept 1-25-18

DISCIPLINARY HEARINGS (FINDING THAT PETITIONER POSSESSED A WEAPON FOUND IN A CUBE SHARED WITH OTHER INMATES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED (THIRD DEPT))

CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing Family Court, determined: (1) the presumption of legitimacy applies to a child born to a same-gender married couple after artificial insemination; (2) the presumption was not rebutted; (3) ordering a paternity test was not in the best interests of the child; and (4) the doctrine of equitable estoppel required the dismissal of the paternity petition. The mother inseminated herself with sperm with the consent of the donor. The parties had agreed the sperm donor waived any claims of paternity and any right to custody or visitation. The facts that the written agreement was destroyed and did not comply with the requirements of Domestic Relations Law 73 (formalities required for artificial insemination) did not preclude proof of legitimacy by other means. The opinion is comprehensive and too detailed to fairly summarize here:

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While a workable rubric has not yet been developed to afford children the same protection regardless of the gender composition of their parents’ marriage, and the Legislature has not addressed this dilemma, we believe that it must be true that a child born to a same-gender married couple is presumed to be their child and, further, that the presumption of parentage is not defeated solely with proof of the biological fact that, at present, a child cannot be the product of same-gender parents … . If we were to conclude otherwise, children born to same-gender couples would be denied the benefit of this presumption without a compelling justification. * * *

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… [I]nvocation of the doctrine of equitable estoppel is warranted here “to protect the status interests of [the] child,” who was born to married parents and thereafter lived with them in a family unit … . While the child, now over three years old, was an infant when the paternity proceeding was commenced, we nonetheless find that petitioner’s representations in donating sperm combined with his delay in asserting parental rights compel against ordering a test. While young, the child’s “image of her family” — consisting of two mothers — would be devastated by an outsider, who merely donated sperm, belatedly asserting parental rights … . Matter of Christopher YY. v Jessica ZZ., 2018 NY Slip Op 00495, Third Dept 1-25-18

FAMILY LAW (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/LEGITIMACY, PRESUMPTION OF (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/PATERNITY (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/EQUITABLE ESTOPPEL (FAMILY LAW, PATERNITY, CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/SAME-GENDER MARRIAGE (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/ARTIFICIAL INSEMINATION (FAMILY LAW, PATERNITY, (CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))/PARENTAL RIGHTS (ARTIFICIAL INSEMINATION, CHILD BORN TO SAME-GENDER MARRIED COUPLE AFTER ARTIFICIAL INSEMINATION IS ENTITLED TO THE PRESUMPTION OF LEGITIMACY, DOCTRINE OF EQUITABLE ESTOPPEL REQUIRED DISMISSAL OF THE SPERM DONOR’S PATERNITY PETITION (THIRD DEPT))

THE BOARD’S CONCLUSION, BASED UPON EXPERT TESTIMONY, THAT CLAIMANT’S STROKE WAS CAUSED BY PRE-EXISTING MEDICAL CONDITIONS AND NOT THE WORK CONDITIONS AT THE TIME OF THE STROKE WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND THEREFORE CANNOT BE DISTURBED ON APPEAL (THIRD DEPT).

The Third Department determined there was substantial evidence, in the form of expert testimony, that claimant’s stroke was caused by pre-existing medical conditions and not the particular conditions of work on the day the stroke happened. Because there existed substantial evidence to support the Workers’ Compensation Board’s ruling, the court cannot disturb it:

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Claimant’s medical expert, Lester Ploss, opined that claimant’s stroke was causally-related to his employment given that, on the day of his stroke, claimant had a prolonged lack of sleep, was under time constraints to drive to Pennsylvania and performed very arduous labor while teaching a class. The record, however, establishes that on a regular work day, claimant awoke around 2:00 a.m., drove to work in the Bronx and worked from approximately 4:00 a.m. until 1:30 p.m. cutting meat. Although claimant drove to Pennsylvania on the day in question, the record establishes that he worked substantially the same hours as a normal work day. In addition, the general manager testified that the drive to Pennsylvania was divided and included stops along the way. Furthermore, although claimant did not typically teach, the manner of cutting meat was substantially similar to his regular duties in the Bronx, where he did assist others in their technique of cutting meat. Naunihal Singh, a neurologist who reviewed claimant’s medical records, opined that claimant’s stroke was not related to any aspect of employment but was a direct result of claimant’s preexisting medical conditions, including hypertension, cognitive heart failure, cardiomegaly and an irregular heart. The Board’s decision was based upon the credibility, or lack thereof, of the medical testimony with regard to the events leading to claimant’s stroke. Inasmuch as this Court defers to the credibility determinations of the Board with regard to medical evidence and witness testimony, we find that there is substantial evidence in the record to support the Board’s decision that claimant’s stroke did not arise out of or in the course of his employment … . Matter of Devis v Mountain States Rosen LLC, 2018 NY Slip Op 00370, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW (THE BOARD’S CONCLUSION, BASED UPON EXPERT TESTIMONY, THAT CLAIMANT’S STROKE WAS CAUSED BY PRE-EXISTING MEDICAL CONDITIONS AND NOT THE WORK CONDITIONS AT THE TIME OF THE STROKE WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND THEREFORE CANNOT BE DISTURBED ON APPEAL (THIRD DEPT))

EVEN THOUGH THE INJURED EMPLOYEE WORKED ONLY SPORADICALLY AND AS NEEDED AND WORKED ONLY 16 DAYS IN THE RELEVANT 52 WEEK PERIOD, HIS BENEFITS MUST STILL BE CALCULATED BY MULTIPLYING HIS DAILY WAGE BY 200 (THIRD DEPT).

The Third Department determined the mandated technique for computing lost wages applied even though the employee worked only sporadically as needed. The employee had worked only 16 days during the 52-week period but was entitled to benefits calculated at 200 times his daily wage:

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Where, as here, Workers’ Compensation Law § 14 (3) applies, an employee’s annual average earnings must be computed based on “such sum as . . . shall reasonably represent the annual earning capacity of the injured [claimant] in the employment in which he [or she] was working at the time of [his or her] accident [and] consist of not less than two hundred times the average daily wage or salary which he [or she] shall have earned in such employment during the days when so employed.” That total is then divided by 52 weeks to reach the average weekly wage … . “However, the 200 multiple method is properly used to compute the average weekly wage of a part-time or intermittent [claimant] only where there has been a finding that the [claimant] was fully available for the employment at issue, and should not be applied if a claimant has voluntarily limited his or her availability for work”… .

Here, the record establishes that claimant worked for the employer sporadically and on an as-needed basis in the 52-week period before the accident. Although the employer submitted checks that related to additional earnings by claimant during the 52-week period, no evidence was presented to demonstrate that claimant voluntarily limited his availability for work with the employer. Absent such evidence, the Board’s use of the 200 multiplier in determining claimant’s average weekly wage is supported by substantial evidence and will not be disturbed … . “While the result [herein] appears to be contrary to [Workers’ Compensation Law § 15 (6) (a),] which provides that compensation when combined with decreased earnings or earning capacity shall not exceed the wages the employee was receiving at the time of the accident, it is the result reached by using the formula set forth in [Workers’ Compensation Law § 14 (3)] which has been considered a legislative mandate” … . Matter of Bain v New Caps, LLC, 2018 NY Slip Op 00369, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW EVEN THOUGH EMPLOYEE WORKED ONLY SPORADICALLY AND AS NEEDED AND WORKED ONLY 16 DAYS IN THE RELEVANT 52 WEEK PERIOD, HIS BENEFITS MUST STILL BE CALCULATED BY MULTIPLYING HIS DAILY WAGE BY 200 (THIRD DEPT))

ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK IN THE FUTURE SHE IS ENTITLED TO 375 WEEKS OF BENEFITS FOR PERMANENT PARTIAL DISABILITY WHICH RESULTED IN A 70% LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT).

The Third Department determined claimant was entitled to 375 weeks of benefits for a permanent partial disability which resulted in a 70% loss of wage-earning capacity (should she stop working), even though she returned to work at full pay:

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Following a hearing, a Workers’ Compensation Law Judge (hereinafter WCLJ) classified claimant with a permanent partial disability and found that she had a 70% loss of wage-earning capacity and would be entitled to wage loss benefits for 375 weeks should she stop working … .The employer appealed from the decision and argued that claimant could not be found to have a loss of wage-earning capacity given that she had returned to work and was earning her preaccident wages. The Workers’ Compensation Board disagreed and affirmed, prompting this appeal.

We affirm. Loss of wage-earning capacity is set at the time of classification and refers to “the maximum number of weeks over which a claimant with a permanent partial disability is entitled to receive benefits” … .. As such, “despite the fact that [a] claimant [is] working at full wages, the Board [is] entitled to establish . . . loss of wage-earning capacity, which sets a fixed durational limit on potential benefits in the event that [a] claimant incurs a subsequent reduction of wages as the result of his [or her] work-related injuries” … . The Board’s decision falls squarely within this rule, and the employer’s argument that this Court has left any ambiguity on the issue is without merit … . Matter of Oyola v New York City Dept. of Sch. Food & Nutrition Servs., 2018 NY Slip Op 00368, Third Dept 1-18-18

WORKERS’ COMPENSATION LAW (ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK SHE WAS ENTITLED TO 375 WEEKS OF BENEFITS FOR PERMANENT PARTIAL DISABILITY WHICH RESULTED IN A 70% LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))/WAGE-EARNING CAPACITY (WORKERS’ COMPENSATION LAW, (ALTHOUGH CLAIMANT RETURNED TO WORK AT FULL PAY, SHOULD SHE STOP WORK SHE WAS ENTITLED TO 375 WEEKS OF BENEFITS FOR PERMANENT PARTIAL DISABILITY WHICH RESULTED IN A 70% LOSS OF WAGE-EARNING CAPACITY (THIRD DEPT))

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FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, in a full-fledged opinion by Justice Lynch, determined the child was entitled to findings which would enable him to apply for special immigrant juvenile status. The court explained the relevant steps in the immigration process:

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In November 2015, Family Court granted the petition of Ericza K. and appointed her as the permanent guardian of her brother, Jose YY., born in 2000 (hereinafter the child). In April 2016, the child moved for a threshold order that would enable him to petition the United States Citizenship and Immigration Services (hereinafter USCIS) for special immigrant juvenile status (hereinafter SIJS) which, in turn, would enable him to obtain lawful permanent residency in the United States … . A child seeking SIJS from USCIS must first obtain a special findings order from a state court with jurisdiction over the juvenile, which must determine that (1) the child is under 21 years of age, (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 be returned to his or her native country … . Upon such an application, the role of Family Court is to render specific findings as to the above criteria, with the ultimate determination as to whether to grant SIJS to a child to be made by USCIS and its parent agency, the Department of Homeland Security … . Correspondingly, it is not Family Court’s role to render an immigration determination … . * * *

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.. .[W]e conclude, upon our independent review of the record, that returning the child to Honduras would not be in his best interests … . The child testified that his father died in 2003 and his mother in 2012, and their death certificates are consistent with such testimony. After his mother’s death, he lived with an older sister who operated a billiards business, where the child was fearful and exposed to people smoking, drinking and using cocaine in his presence. That sister has since relocated to Virginia, and the child no longer has family residing in Honduras. In sharp contrast, his guardian has provided a stable home for the child where he feels safe and is attending school … . Matter of Jose YY. (Ericza K.), 2018 NY Slip Op 00375, Third Dept 1-18-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY LAW, FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), STATUTORY PROCESS LEADING TO IMMIGRATION DETERMINATION BY DEPARTMENT OF HOMELAND SECURITY EXPLAINED (THIRD DEPT))

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FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT).

The Third Department noted that a federal drug conspiracy conviction cannot be used as a predicate felony for a second felony offender adjudication and remitted for resentencing. The defendant had pled guilty to attempted criminal sale of a controlled substance and was sentenced to probation. When he violated the terms of probation he was sentenced to prison as a second felony offender. The Third Department noted that an illegal sentence issue need not be preserved for appeal by objection:

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Defendant … contends that his federal drug conspiracy conviction does not qualify as a predicate New York felony and, therefore, it cannot serve as a basis for his second felony drug offender adjudication. Although this claim is being raised for the first time on appeal, we find that the claim “falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the . . . record”… . In the special information charging a predicate offense, the People alleged that defendant was previously convicted in the US District Court for the Northern District of New York of conspiracy to distribute marihuana (21 USC §§ 841, 846). However, the Court of Appeals has determined that, “under New York’s ‘strict equivalency’ standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as a predicate felony for sentencing purposes” … . We therefore vacate the sentence and remit the matter to County Court for resentencing … . People v Sumter, 2018 NY Slip Op 00354, Third Dept 1-18-17

 

CRIMINAL LAW (PREDICATE FELONY, SENTENCING, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION (THIRD DEPT))/SENTENCING (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/PREDICATE FELONY (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/SECOND FELONY OFFENDER (FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/FEDERAL DRUG CONSPIRACY (PREDICATE FELONY, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, ILLEGAL SENTENCE, (PREDICATE FELONY, FEDERAL DRUG CONSPIRACY CONVICTION CANNOT BE USED AS A PREDICATE FELONY FOR SECOND FELONY OFFENDER ADJUDICATION, ILLEGAL SENTENCE NEED NOT BE PRESERVED FOR APPEAL BY OBJECTION (THIRD DEPT))

LEAVING A 16 MONTH OLD CHILD UNATTENDED IN A BATHTUB WITH FOUR INCHES OF WATER CONSTITUTED NEGLECT, FAMILY COURT REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s leaving unattended for several minutes a 16-month-old child in a bathtub with four inches of water constituted neglect. The child drowned:

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In our view, this evidence was more than sufficient to establish a prima facie case of neglect. Fundamentally, a reasonably prudent person would not leave a 16-month-old child unattended in a bathtub filled with four inches of water for any appreciable amount of time … . Through her own statement, respondent estimated that she was absent for 1 to 10 minutes. Doing so was “intrinsically dangerous” and has resulted in a heartbreaking tragedy for this family … . Where, as here, a prima facie case has been established, it became respondent’s obligation to offer “a reasonable and adequate explanation for how the child sustained the injury”… . Respondent opted not to testify and did not call any witnesses. Consequently, we conclude on the record before us that the petition should have been granted. Matter of Leah VV. (Theresa WW.), 2018 NY Slip Op 00201, Third Dept 1-11-18

FAMILY LAW (NEGLECT, LEAVING A 16 MONTH OLD CHILD UNATTENDED IN A BATHTUB WITH FOUR INCHES OF WATER CONSTITUTED NEGLECT, FAMILY COURT REVERSED (THIRD DEPT))/NEGLECT (FAMILY LAW, LEAVING A 16 MONTH OLD CHILD UNATTENDED IN A BATHTUB WITH FOUR INCHES OF WATER CONSTITUTED NEGLECT, FAMILY COURT REVERSED (THIRD DEPT))

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PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT).

The Third Department, reversing SUNY Plattsburgh’s dismissal of petitioner-student, over a two-justice partial dissent, determined that a new disciplinary hearing was required because the Title IX Coordinator’s (Butterfly Blaise’s) testimony at the hearing reflected a misunderstanding of how consent to sex can be communicated. The facts of the sexual encounter between petitioner and the “reporting individual,” another student, were presented at the hearing by Blaise because, by statute, the reporting individual can decide whether or not to participate in the hearing.  The dissenting justices argued that the petitioner was denied his due process right to cross-examine the reporting individual and the determination should be annulled and expunged.  The majority found that the procedure employed by the college, including notice of the charges, comported with the controlling “Enough is Enough Law” and due process. The decision goes through all the arguments made by petitioner, which are substantive and well worth reading, but which cannot be fairly summarized here. With respect to the evidence of consent, the court wrote:

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During the hearing, petitioner asked Blaise to define affirmative consent and she read the statutory definition, including that “consent can be given by words or actions as long as those words or actions create clear permission regarding willingness to engage in sexual activity.” Petitioner then asked, “So affirmative consent can be implied or referred [sic] from conduct?”, and Blaise responded, “[O]nly if the direct question is: Can I have sex with you? So you must ask directly what it is that you want to do to that person. . . . And the answer affirmatively must be yes.” This explanation was incorrect. The error was compounded when petitioner next inquired whether the consent standard applied to both parties, and Blaise explained that the obligation applied to the person initiating the sexual activity. When petitioner asked, “How do you define initiation?”, Blaise explained “that you initiated sexual intercourse by penetrating her.” This, too, was erroneous for the concepts of consent and initiation pertain to either verbal communication or the conduct between the participants, not simply the physical act of penetration.

Blaise’s mistakes raise a concern with regard to the Board’s determination, which was, simply, that petitioner was responsible for violating the Student Conduct Manual because he “initiated sexual intercourse with another student three different times without establishing affirmative consent.” By this determination, the Board failed to provide the requisite “findings of fact . . . [and] rationale for the decision and the sanction” (Education Law § 6444 [5] [b]). As a consequence of Blaise’s erroneous interpretations, we, like petitioner, are unable to discern whether the Board properly determined that petitioner initiated the sexual activity or even considered whether affirmative consent was given based on the reporting individual’s conduct. Matter of Jacobson v Blaise, 2018 NY Slip Op 00205, Third Dept 1-11-18

EDUCATION-SCHOOL LAW (COLLEGES, DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/ADMINISTRATIVE LAW (COLLEGES, DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/CONSTITUTIONAL LAW (COLLEGES, DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/COLLEGES AND UNIVERSITIES ( DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/ENOUGH IS ENOUGH LAW (COLLEGES, DISCIPLINARY HEARINGS, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))/DISCIPLINARY HEARINGS (COLLEGES, PETITIONER COLLEGE STUDENT IS ENTITLED TO A NEW DISCIPLINARY HEARING, THE TESTIMONY AT THE HEARING BY THE COLLEGE’S TITLE IX COORDINATOR INCORRECTLY EXPLAINED THE MANNER IN WHICH CONSENT TO SEX CAN BE COMMUNICATED, DISSENTING JUSTICES ARGUED THE STUDENT WAS DENIED HIS RIGHT TO CROSS-EXAMINE THE REPORTING INDIVIDUAL AND THE DETERMINATION SHOULD BE ANNULLED AND EXPUNGED (THIRD DEPT))

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