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HEARING OFFICER DID NOT PROVIDE PETITIONER WITH WRITTEN NOTICE OF HER DENIAL OF PETITIONER’S REQUEST THAT A WITNESS TESTIFY, PETITIONER ENTITLED TO A NEW HEARING (THIRD DEPT).

Third Department determined petitioner was entitled to a new hearing because the hearing officer failed to provide him with written notice of her denial of the inmate’s request that a witness testify:

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At the start of the hearing, petitioner indicated three times that he wanted to call inmate X as a witness, and also informed the Hearing Officer that he wished to call six inmates who were housed in his dorm. The Hearing Officer adjourned the hearing to interview the inmates requested and, when the hearing resumed, she informed petitioner that the six inmates housed in his dorm had refused to testify, briefly mentioning the various reasons given and that they had signed refusal forms. The Hearing Officer, however, did not mention whether she had also spoken to inmate X and, if so, what he had said regarding his prior agreement to testify. No other reference was made to inmate X at the hearing and the hearing thereafter concluded without inmate X’s testimony.

Despite the fact that the hearing transcript is devoid of any indication of the Hearing Officer’s efforts to obtain inmate X’s testimony, the record contains a refusal form completed by the Hearing Officer indicating that she personally interviewed inmate X during the pendency of the hearing and that he refused to testify because he did not “want to be involved.” This record evidence establishes the Hearing Officer’s personal efforts to secure inmate X’s testimony and ascertain a sufficient reason for his refusal … . It is equally apparent that the Hearing Officer effectively made a determination to deny petitioner’s request to call this witness for this reason. However, we find that her failure to provide any written notice to petitioner concerning her effective denial of his request amounts to a regulatory violation requiring the matter to be remitted for a new hearing … . Matter of Blades v Annucci, 2017 NY Slip Op 06581, Third Dept 9-21-17

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT PROVIDE PETITIONER WITH WRITTEN NOTICE OF HER DENIAL OF PETITIONER’S REQUEST THAT A WITNESS TESTIFY, PETITIONER ENTITLED TO A NEW HEARING (THIRD DEPT))

HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT).

The Third Department noted that habeas corpus is not a vehicle for relief for issues which could have been raised on appeal and is not available until the maximum sentence has been served (must be entitled to immediate release):

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Supreme Court properly dismissed the petition, as “habeas corpus relief is not an appropriate remedy for resolving claims that could have been or that were raised on direct appeal or in a postconviction motion” … . Petitioner’s contentions regarding his sentence were or could have been raised on his direct appeal and in his CPL article 440 motions to vacate the judgment and sentence … . In addition, even if petitioner’s claims were determined to have merit and his sentences were to run concurrently, he would not be entitled to immediate release from prison and, consequently, habeas relief is not appropriate … . To that end, it is the expiration of the maximum sentence, and not the conditional release date, that is required to establish entitlement to release in a habeas corpus proceeding, and petitioner has not yet reached the maximum expiration of his sentences even if they were concurrent … . People v D’Amico, 2017 NY Slip Op 06574, Third Dept 9-21-17

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Similar issue and result in People v Kirkpatrick, 2017 NY Slip Op 06578, Third Dept 9-21-17

 

CRIMINAL LAW (HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT))/HABEAS CORPUS (HABEAS CORPUS IS NOT A VEHICLE FOR RELIEF FOR ISSUES WHICH COULD HAVE BEEN RAISED ON APPEAL AND IS NOT AVAILABLE UNTIL A PRISONER IS ENTITLED TO IMMEDIATE RELEASE (THIRD DEPT))

FINDING THAT CLAIMANT WAS CAPABLE OF PERFORMING LIGHT WORK WAS NOT SUPPORTED BY THE EVIDENCE, MATTER REMITTED (THIRD DEPT).

The Third Department determined the evidence did not support the Workers’ Compensation Law Judge’s (WCLF’s) conclusion that the claimant was capable of performing light work. The matter was remitted:

… [N]one of the physicians who treated claimant’s physical injuries rated him as having the functional ability to perform light work. To the contrary, they rated him as being able to perform less than sedentary work or sedentary work … . The WCLJ, who was not a medical doctor, appears to have undertaken his own independent analysis of the medical evidence in concluding that claimant was capable of performing light work. Inasmuch as this was a significant factor that was considered in determining claimant’s loss of wage-earning capacity, the WCLJ’s finding that claimant sustained a 60% loss of wage-earning capacity, adopted by the Board, is not supported by substantial evidence in the record … . Accordingly, the matter must be remitted for further proceedings to ascertain claimant’s loss of wage-earning capacity in accordance with the 2012 Guidelines. Matter of Golovashchenko v Asar Intl. Corp., 2017 NY Slip Op 06500, Third Dept 9-14-17

WORKERS’ COMPENSATION LAW (FINDING THAT CLAIMANT WAS CAPABLE OF PERFORMING LIGHT WORK WAS NOT SUPPORTED BY THE EVIDENCE, MATTER REMITTED (THIRD DEPT))

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FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT).

The Third Department determined the failure to file a predicate felony statement required resentencing, despite the failure to preserve the issue by an appropriate motion:

Defendant contends, among other things, that the resentence is invalid because a predicate felony statement was not filed in accordance with CPL 400.21 (2) before he was sentenced as a second felony drug offender … . Although this claim has not been preserved for our review due to defendant’s failure to make an appropriate motion … , under the particular circumstances presented, we exercise our discretion in the interest of justice to take corrective action … . The People concede and the record reveals that a predicate felony statement was never filed as is required by CPL 400.21 (2). In addition, there is no indication that defendant had notice that he would be sentenced as a second felony drug offender when he admitted to the probation violations or at resentencing. Consequently, defendant did not have an opportunity to contest his prior convictions. In view of this, the resentence must be vacated and the matter remitted to County Court for resentencing … . People v Fenner, 2017 NY Slip Op 06483, Third Dept 9-14-17

CRIMINAL LAW (FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, PREDICATE FELONY, SENTENCING, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/APPEALS (CRIMINAL LAW, PREDICATE FELONY STATEMENT, PRESERVATION, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/SENTENCING (PREDICATE FELONY STATEMENT, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/PREDICATE FELONY STATEMENT (FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))

PETITIONERS HAD CAPACITY AND STANDING TO BRING AN ACTION SEEKING A DECLARATION RESPONDENTS VIOLATED THE ELECTION LAW AND COMPELLING REMEDIAL ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined petitioners did not have the authority under the Election Law to force a respondent to refund a $200,000 contribution to an election committee, but did have capacity and standing to bring an action seeking a declaration respondents violated the Election Law and compelling a respondent to amend its registration documents:

Contrary to Supreme Court’s conclusion, petitioners do not wholly lack the authority to commence this proceeding/action. A party lacks the authority to sue where he or she is without both capacity and standing to sue … . “Capacity to sue is a threshold matter allied with, but conceptually distinct from, the question of standing” …  Capacity “concerns a litigant’s power to appear and bring its grievance before the court” …  and may, in some circumstances, be granted by statute … . In contrast, “[s]tanding involves a determination of whether the party seeking relief has a sufficiently cognizable stake in the outcome so as to cast . . . the dispute in a form traditionally capable of judicial resolution” … . The concept of standing “is, at its foundation, aimed at advancing the judiciary’s self-imposed policy of restraint, which precludes the issuance of advisory opinions” … .

… [P]etitioners — five qualified voters who reside within … the 9th Assembly District — have been statutorily afforded a private right of action to seek a declaration that [responent] violated the Election Law and to compel [responents] to comply with the Election Law . Thus, petitioners have both capacity and standing to seek such relief. * * *

… Election Law § 14-126 (2) [does not] completely extinguish[] the private right of action granted in Election Law § 16-114 (3) so as to deprive petitioners of the authority to seek an order declaring that [respondent] violated Election Law § 14-107-a and compelling [respondent] to amend its registration documents. Matter of Lauder v Pellegrino, 2017 NY Slip Op 06337, Third Dept 8-24-17

 

ELECTION LAW (PETITIONERS HAD CAPACITY AND STANDING TO BRING AN ACTION SEEKING A DECLARATION RESPONDENTS’ VIOLATED THE ELECTION LAW AND COMPELLING REMEDIAL ACTION (THIRD DEPT))

PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT).

The Third Department determined the certificates of substitution designating candidates in a primary election were invalid. The problem was with the section which begins “We, the undersigned, hereby affirm that we constituted a majority of the vacancy committee referred to in the above certificate and that the statements in such certificate are true.” “Below this statement, the majority of the Committee members were required to sign their names before a notary public, but their names were instead printed … , followed by the signature and stamp of the notary public next to the jurat:”

The printed names of the Committee members here were not the equivalent of signatures establishing that they were attesting to the truth of the information contained in the certificates or that they constituted a majority of the Committee. Such deficiency was not a mere error in form … ; indeed, its practical effect was as though the affidavit explicitly required by statute was never filed. Moreover, the deficiency was not cured by the other sections of the certificates because even though the members’ signatures appeared in the first section, their signatures were not notarized and they did not attest to the accuracy of the information contained therein or represent that they constituted a majority of the Committee … . Notwithstanding respondents’ contention that the preprinted form provided by the Board is confusing, this does not relieve the Committee of its obligation to comply with the statutory requirements … . Accordingly, we conclude that Supreme Court properly invalidated the certificates of substitution for failure to comply with the requirements of Election Law § 6-148 (4). Matter of Harder v Kuhn, 2017 NY Slip Op 06338, Third Dept 8-23-17

ELECTION LAW (PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT))/SIGNATURES (ELECTION LAW, PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT))/CERTIFICATES OF SUBSTITUTION (ELECTION LAW, PRINTED NAMES ARE NOT THE EQUIVALENT OF SIGNATURES, CERTIFICATES OF SUBSTITUTION DEEMED INVALID (THIRD DEPT))

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RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, over a two-justice dissent, determined that the record of a retention hearing for an insanity acquittee need not be sealed:

Mental Hygiene Law § 33.13 does not, as respondent contends, require that the record of his retention proceeding be sealed. …

Respondent accepted a plea of not responsible by reason of mental disease or defect and, therefore, “avoid[ed] criminal penalties and . . . [became] subject to the CPL 330.20 scheme” … . As the Court of Appeals has consistently recognized, “[t]his places insanity acquittees in a significantly different posture than involuntarily committed civil patients” and, thus, justifies “rational differences between procedures for commitment and release applicable to defendants found not responsible and persons involuntarily committed under the Mental Hygiene Law” … . The distinction between an insanity acquittee, as we have here, and an involuntarily committed civil patient is apparent by the Legislature’s enactment of a separate statutory scheme — CPL 330.20 — to address the commitment and retention procedures for persons found not responsible for their crimes by reason of mental disease or defect. The detailed statutory framework of CPL 330.20 does not include a provision that requires, or even contemplates, the sealing of these commitment and retention proceedings. Nor does the relevant legislative history indicate that the Legislature intended for these proceedings — which arise only after a criminal defendant affirmatively places his or her mental competency in issue — to be sealed from the public … . Matter of James Q., 2017 NY Slip Op 06222, 3rd Dept 8-17-17

 

MENTAL HYGIENE LAW (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/CRIMINAL LAW (INSANITY ACQUITTEE, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT)/INSANITY ACQUITTEE  (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))/RETENTION HEARING (INSANITY ACQUITTEE, (CRIMINAL LAW, RECORD OF A RETENTION HEARING FOR AN INSANITY ACQUITTEE NEED NOT BE SEALED (THIRD DEPT))

CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT).

The Third Department determined claimant, decedent’s husband, was entitled to Workers’ Compensation death benefits. Decedent was found on the floor after she had complained of job-related stress and chest pains. Decedent’s death certificate indicated that she died from cardiac arrhythmia due to arteriosclerotic heart disease with obesity as a contributing factor:

Here, there is no dispute that claimant was entitled to the statutory presumption in that decedent suffered a cardiac arrest while working in her office and died shortly thereafter as a result, an event with no known witnesses … . The carrier’s cardiologist reviewed decedent’s medical records and concluded that while it was not certain exactly what happened, decedent’s cardiac arrest was most likely due to preexisting coronary artery disease and was not causally related, finding insufficient evidence that it was due to work-related stress … . This evidence was sufficient to rebut the presumption of compensability, shifting the burden to claimant to demonstrate a causal relationship … .​

Claimant presented the report and testimony of an internal medicine physician who reviewed decedent’s medical records and concluded that she had underlying asymptomatic cardiac atherosclerotic disease, and that her work-related stress was a “significant contributing factor” that caused her sudden cardiac death. He relied on the emergency department records and the fact that decedent had no known history of cardiac symptoms or treatment. While claimant’s physician acknowledged that decedent had other cardiac risk factors, such as obesity and a daily smoking habit, decedent’s “work-related illness need not be the sole or even the most direct cause of death, provided that the claimant demonstrates that the compensable illness was a contributing factor in the decedent’s demise”… . Matter of Lavigne v Hannaford Bros. Co., 2017 NY Slip Op 06121, Third Dept 8-10-17

 

WORKERS’ COMPENSATION LAW (DEATH BENEFITS, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))/DEATH BENEFITS (WORKERS’ COMPENSATION LAW, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))/CARDIAC ARREST (WORKERS’ COMPENSATION LAW, CLAIMANT, DECEDENT’S HUSBAND, WAS ENTITLED TO WORKERS’ COMPENSATION DEATH BENEFITS BASED UPON DECEDENT’S UNWITNESSED DEATH DUE TO CARDIAC ARREST (THIRD DEPT))

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FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT).

The Third Department, reversing defendant’s conviction, over a dissent, determined that defendant’s for cause challenge to a sworn juror should have been granted. Defendant was accused of killing his ex-wife, Powell. The juror was a partner in a law firm which represented Powell’s parents in their action to gain custody of Powell’s (and defendant’s) child.

… [W]here the challenging party acquires new information that had not been previously available after a juror has already been sworn, the trial court may entertain a challenge made for cause made before the first trial witness is sworn … . …

The governing law dictates that a juror should be discharged for cause where the juror is shown to have an implied bias; that is, if the juror shares a relationship with any person involved in the trial the nature of which is likely to preclude him or her from rendering an impartial verdict … .

… It bears noting that the juror did not personally represent Powell’s parents, and that the relationship shared by her firm and Powell’s family was purely of a professional nature. Nonetheless, the law firm owed Powell’s family a clear and paramount duty to represent their interests. As the juror recognized and stated in response to the court’s inquiry, the conflicts that arise therefrom — under the particular circumstances presented here — are imputed to her by law … . Further, the effect of the juror’s involvement cannot be said to be remote, as the verdict reached by this jury would inevitably affect the custody proceedings; indeed, by direct application of statutory law, a guilty verdict in this criminal action necessarily precluded an award of custody or visitation to defendant in that matter … .

As a matter of well-established law, a juror’s assurances of impartiality are inadequate to cure an implied bias … . People v Powell, 2017 NY Slip Op 06104, Third Dept 8-10-17

CRIMINAL LAW (JURORS, IMPLIED BIAS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AND ATTORNEY,  WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/JURORS (CRIMINAL LAW, FOR CAUSE CHALLENGE TO A SWORN JUROR , AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/ATTORNEYS (IMPLIED BIAS, CRIMINAL LAW, JURORS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))/IMPLIED BIAS (ATTORNEYS, CRIMINAL LAW, JURORS, FOR CAUSE CHALLENGE TO A SWORN JUROR, AN ATTORNEY, WHOSE FIRM REPRESENTED THE MURDER VICTIM’S PARENTS IN AN ACTION TO GAIN CUSTODY OF THE DEFENDANT’S AND VICTIM’S CHILD SHOULD HAVE BEEN GRANTED ON IMPLIED BIAS GROUNDS (THIRD DEPT))

MASSACHUSETTS ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT).

The Third Department denied the applications of two Massachusetts attorneys (Fee and Lawless) for a waiver of the Judiciary Law requirement that they maintain a physical office in New York in order to practice in New York. The Third Department, following the 2nd Department and disagreeing with the 1st Department, determined the legal work performed by the attorneys to date was not null and void:

Upon our review of Judiciary Law § 470, we find that it unambiguously provides, without exception, that a prerequisite for a nonresident attorney to practice law in this state is that he or she maintain a physical law office here. In our view, Fee’s and Lawless’ requests for a waiver of the clear mandate of Judiciary Law § 470 “finds no support in the wording of the provision and would require us to take the impermissible step of rewriting the statute” … . In addition to holding that no statutory authority exists for granting the waivers, we also find that creating an avenue for nonresident attorneys to obtain a waiver of the law office requirement would amount to the type of rulemaking reserved for the Ct. of Appeals (see generally Judiciary Law § 53). Accordingly, Fee’s and Lawless’ applications are denied.

Finally, we reject plaintiff’s contention that all of the work performed by Fee and Lawless in this action should be declared void from the beginning. In reaching this conclusion, we adopt the 2nd Department’s reasoning in Elm Mgt. Corp. v Sprung (33 AD3d 753 [2006]) that “the fact that a party has been represented by a person who was not authorized or admitted to practice law under the Judiciary Law . . . does not create a ‘nullity’ or render all prior proceedings void per se” … , and we note our disagreement with the 1st Department’s cases holding to the contrary … . Stegemann v Rensselaer County Sheriff’s Off., 2017 NY Slip Op 06114, Third Dept 8-10-17

ATTORNEYS (OUT-OF-STATE ATTORNEYS, MASSACHUSETTS’ ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT))/JUDICIARY LAW (OUT-OF-STATE ATTORNEYS, MASSACHUSETTS’ ATTORNEYS’ REQUEST FOR A WAIVER OF THE JUDICIARY LAW REQUIREMENT THAT THEY MAINTAIN A PHYSICAL OFFICE IN NEW YORK IN ORDER TO PRACTICE IN NEW YORK DENIED (THIRD DEPT))

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