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RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY.

The Third Department, reversing defendant’s conviction, determined the facts presented the rare scenario that required the court’s inquiry into whether defendant waived his right to testify. After proof had closed, the defendant made it clear that he wanted to testify and that he and his attorney did not agree on the question:

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Defendant’s request to testify, coupled with his statements that he and defense counsel had disagreed on the issue, gave rise to one of those rare circumstances in which County Court was required to engage in a direct colloquy with defendant so as to discern whether he had been advised that the decision to testify ultimately belonged to him and whether, at the time that the defense rested, defendant’s failure to testify had been a knowing, voluntary and intelligent waiver of that right … . However, County Court failed to engage in the required inquiry so as to ensure that defendant’s constitutional right to testify was protected. While County Court asked whether there was an application to reopen the proof and indicated that it would consider such a request, it directed that question only to defense counsel, even in the face of defendant’s repeated statements that he and defense counsel had differing opinions on the matter. By directing its question solely to defense counsel, County Court demonstrated an apparent misapprehension of longstanding precedent holding that a represented defendant has final decision-making authority over the decision to testify … . People v Morgan, 2017 NY Slip Op 02692, 3rd Dept 4-6-17

CRIMINAL LAW (RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY)/TESTIFY, RIGHT TO (CRIMINAL LAW, RARE CIRCUMSTANCE WHERE COURT SHOULD HAVE DIRECTLY QUESTIONED DEFENDANT ABOUT WHETHER HE KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO TESTIFY)

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AFTER TERMINATION OF BANKRUPTCY PROCEEDINGS PLAINTIFF CANNOT SUE ON INVOICES NOT INCLUDED IN THE SCHEDULE OF ASSETS.

The Third Department determined plaintiff could not sue on invoices submitted for payment (which was refused) while plaintiff was in bankruptcy proceedings. Causes of action not listed in the bankruptcy proceedings cannot be sued upon after termination of the bankruptcy proceedings:

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“Upon the filing of a voluntary bankruptcy petition, all property which a debtor owns, including a cause of action, vests in the bankruptcy estate” … . As such, a debtor’s failure to list a legal claim as an asset in its bankruptcy proceeding precludes the debtor from pursuing such claim on its own behalf inasmuch as the claim remains the property of the bankruptcy estate … . “The only property that may revest in the debtor in its individual capacity at the conclusion of the proceeding is property that was dealt with in the bankruptcy or abandoned” … . …

… [T]he claims asserted by plaintiff … accrued prior to the termination of the bankruptcy proceeding … . [T]he omission of these claims from the … schedule of assets in the bankruptcy proceeding precludes plaintiff from pursuing them on its own behalf because they were not “dealt with” in such proceeding … . Lightning Capital Holdings LLC v Erie Painting & Maintenance, Inc., 2017 NY Slip Op 02716, 3rd Dept 4-6-17

 

CONTRACT LAW (AFTER TERMINATION OF BANKRUPTCY PROCEEDINGS PLAINTIFF CANNOT SUE ON INVOICES NOT INCLUDED IN THE SCHEDULE OF ASSETS)/BANKRUPTCY (AFTER TERMINATION OF BANKRUPTCY PROCEEDINGS PLAINTIFF CANNOT SUE ON INVOICES NOT INCLUDED IN THE SCHEDULE OF ASSETS)

EXERTIONAL ABILITY OF LESS THAN SEDENTARY WORK DOES NOT EQUATE TO A FINDING OF PERMANENT TOTAL DISABILITY, PERMANENT PARTIAL DISABILTIY FINDING AFFIRMED.

The Third Department, over a two-justice dissent, determined the evidence supported the Workers’ Compensation Board’s permanent partial disability finding. Claimant argued she was totally disabled and contended the Board’s finding she has an exertional ability of “less than sedentary work” equated to a finding of permanent total disability. On that issue, the Third Department wrote:

Under the Board guidelines, physicians are required to perform an evaluation of a claimant’s functional capabilities, including his or her exertional abilities (see New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity at 44-46 [2012]). The finding of a claimant’s exertional ability is a factor to be considered by the Board in determining the claimant’s loss of wage-earning capacity … . The loss of wage-earning capacity is used to establish the duration of benefits for claimants that have sustained a permanent partial disability … . “In contrast, a permanent total disability is established where the medical proof shows a claimant is totally disabled and unable to engage in any gainful employment. The duration of benefits is not an issue in the permanent total disability context for the simple reason that there is no expectation that a claimant found to have such a disability will rejoin the work force” … . Accordingly, a finding that a claimant has an exertional ability of performing less than sedentary work, while a factor to consider in setting the duration of a permanently partially disabled claimant’s benefits, is not dispositive in the context of establishing the claimant’s overall disability. Rather, the exertional ability to work is applicable only to those claimants already found to have sustained a permanent partial disability and, therefore, are expected to rejoin the work force. Matter of Burgos v Citywide Cent. Ins. Program, 2017 NY Slip Op 02489, 3rd Dept 3-30-17

 

BUILDING AND HOME INSPECTORS WERE EMPLOYEES OF ENGINEERING FIRM.

The Third Department determined architects and engineers hired by Tauscher to conduct building and home inspections were employees entitled to unemployment insurance benefits:

Here, although the inspectors signed a standard agreement identifying them as independent contractors, the agreement contained a noncompete clause prohibiting the inspectors from working directly or indirectly with competing engineering firms within Tauscher’s geographic region, including 100 miles from the Empire State Building in New York City. The agreement further provided that the inspectors perform their inspections in accordance with industry and professional standards and that their post-inspection reports be drafted on forms provided by Tauscher and submitted to Tauscher within a limited time frame. The inspectors were also required to participate in Tauscher’s self-insurance fund, as well as pay for professional liability insurance obtained by Tauscher, and to share in the costs of any litigation arising out of the inspections. Tauscher scheduled the time of the inspections, which were not subject to modification by the inspectors, and would seek a replacement inspector if the original inspector was unavailable. Tauscher also provided the inspectors with business cards bearing Tauscher’s name to provide to its clients.

With regard to compensation, Tauscher established the fees that clients were required to pay for the inspections and also unilaterally set the percentage of the fees that constituted payment for the inspectors. In order for the inspectors to receive payment, they were required to submit invoices to Tauscher, which in turn would pay the inspectors directly. In addition, Tauscher managed the billing of, and collection from, clients. Notwithstanding the proof in the record that could support a contrary result, the foregoing evidence demonstrates that Tauscher retained overall control over important aspects of the services performed by the inspectors, and we therefore find that substantial evidence supports the determination of the Board assessing Tauscher additional unemployment insurance contributions for remuneration paid to the inspectors … . Matter of Tauscher Cronacher PE PC (Commissioner of Labor). 2017 NY Slip Op 02488. 3rd Dept 3-30-17

 

INSUFFICIENT SHOWING BY THE STATE POLICE TO JUSTIFY DENIAL OF REQUEST FOR RECORDS PERTAINING TO A VICTIM OF CRIMES COMMITTED BY PETITIONER, MATTER REMITTED.

The Third Department determined the state police did not make sufficient assertions to justify the denial of petitioner’s request for records concerning a victim of crimes committed by petitioner (an inmate). The state police did not provide factual information to support the claims that the records would disclose non-routine investigatory techniques and would violate privacy. The state police further failed to show that redaction could address those concerns. The matter was remitted to Supreme Court:

The State Police merely paraphrased the statutory language of the exemptions without describing the records withheld or providing any factual basis for its conclusory assertions that disclosure would constitute an unwarranted invasion of personal privacy and would reveal nonroutine criminal investigative techniques and procedures … . Further, with respect to the personal privacy exemption, the State Police offered no proof that the requested records fell into any enumerated categories and failed to specify the implicated privacy interests, if any, against which the public interest in disclosing the records were to be balanced … .

Moreover, Public Officers Law § 89 (2) (a) expressly permits an agency to delete “identifying details” from records that it makes available to the public in order to prevent unwarranted invasions of personal privacy … , and the State Police failed to make any showing as to whether the requested documents could be redacted in such a manner as to protect personal privacy … . Nor did it submit the documents to Supreme Court for an in camera review to allow an “informed determination” by the court on that issue … . Matter of McFadden v Fonda, 2017 NY Slip Op 02101, 3rd Dept 3-23-17

 

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY.

The Third Department determined defendant was entitled to a hearing on his motion to vacate his conviction. Defendant alleged he was not informed of the intoxication defense prior to pleading guilty:

… [R]egarding defendant’s claim in his CPL 440.10 motion that counsel’s representation was ineffective for failing to inform him that the required element of criminal intent for burglary in the second degree (see Penal Law § 140.25) could be negated by the defense of intoxication[:] The victims’ statements to police include the observations that defendant “looked high and his speech was slow” and that defendant appeared “either drunk or stoned.” Additionally, his criminal record reflects a history of alcohol-related arrests and convictions. Insofar as a defendant’s knowledge that the element of intent may be negated by the potential defense of intoxication is essential to a knowing and voluntary plea … and there is no indication that defendant was aware of the intoxication defense and knowingly waived his right to present such evidence, we are persuaded that defendant has raised an issue sufficient to require a hearing … . People v Perry, 2017 NY Slip Op 02095, 3rd Dept 3-23-17

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/ATTORNEYS (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/INEFFECTIVE ASSISTANCE (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/VACATE CONVICTION, MOTION TO DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)/INTOXICATION DEFENSE (MOTION TO VACATE CONVICTION, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE INTOXICATION DEFENSE PRIOR TO PLEADING GUILTY)

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AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE.

The Third Department, in a full-fledged opinion by Justice Garry, determined the Department of Corrections and Community Services (DOCCS) did not give the petitioner, an indigent sex offender who had completed his sentence, adequate assistance in finding housing in a residential treatment facility (RTF) upon release. Although petitioner had been provided RTF housing by the time the matter was heard, the Third Department reached the issue as an exception to the mootness doctrine. DOCCS’s insufficient assistance in finding RTF housing for released sex offenders was deemed a recurring problem that needed to be addressed:

We agree with petitioner that, due to the “recognized difficulty in securing acceptable housing” for persons subject to sex offender residency restrictions, there is a likelihood of repetition regarding individuals being placed in RTFs due to the failure to secure suitable housing … . Given the transitory purpose of RTFs and considering the lack of appellate precedent regarding challenges to RTF placements and programing, we further recognize that the phenomenon typically evades review … . Finally, we find the issues novel and substantial given that petitioner’s challenges concern whether RTFs are serving their distinct purpose, as contrasted with confinement facilities generally … . * * *

The feasibility and appropriateness of the specific means by which DOCCS may choose to provide affirmative assistance in locating housing to petitioner are, of course, discretionary and beyond the reach of judicial review unless they are shown to be irrational, arbitrary and capricious. Accordingly, we may not specify the particular actions that DOCCS should have taken. Nevertheless, its passive approach of leaving the primary obligation to locate housing to an individual confined in a medium security prison facility 100 miles from his family and community, without access to information or communication resources beyond that afforded to other prison inmates, falls far short of the spirit and purpose of the legislative obligation imposed upon DOCCS to assist in this process. Matter of Gonzalez v Annucci, 2017 NY Slip Op 02099, 3rd Dept 3-23-17

CRIMINAL LAW (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/SEX OFFENDERS (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/RESIDENTIAL TREATMENT FACILITY (SEX OFFENDERS, AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)/APPEALS (AFTER FINDING THE ISSUE PRESENTED AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE COURT DETERMINED THE STATE DID NOT ADEQUATELY ASSIST A SEX OFFENDER IS FINDING SUITABLE HOUSING UPON RELEASE)

INSURANCE BROKER ENGAGED IN UNTRUSTWORTHY CONDUCT STEMMING FROM A MISLEADING AD FOR VIATICAL SETTLEMENT AGREEMENTS AND WAS PROPERLY FINED.

The Third Department determined petitioner, a licensed insurance agent/broker, had engaged in untrustworthy conduct and was properly fined. Petitioner sold so-called viatical settlement agreements involving the purchase of interests in life insurance policies of elderly and terminally ill persons. Whether the purchased interests would return a profit depended on whether the amounts paid for the policies and premiums was less than the amount the policies paid out upon death. Petitioner took out an ad which was deemed misleading and there was evidence petitioner did not inform purchasers of the risks:

Insurance Law article 21 tasks respondent’s superintendent with, among other things, the dual responsibility of “ensuring that licenses are issued only to trustworthy and competent [insurance] producers” … and disciplining any insurance producer who demonstrates untrustworthiness or incompetence … . These statutory mandates are designed “to protect the public by requiring and maintaining professional standards of conduct on the part of all insurance brokers acting as such within this state” … . * * *

… [W]e agree with respondent’s determination that the subject advertisement was misleading. As a starting point, the language at issue indeed could be read as suggesting that an investor would receive a fixed rate of return at the end of a predetermined period of time — a representation that was not universally true, as the timing of the payout was entirely dependent upon when the viator died; more to the point, the promised fixed rate of return could effectively be diminished if the viator exceeded his or her life expectancy, i.e., did not die within the “plan” period, and the investor’s profit might be eliminated altogether if he or she was required to assume responsibility for paying the premiums due.  * * *

We reach a similar conclusion with respect to the finding that respondent failed to fully disclose the risks of viatical settlements to some of his clients. … [R]espondent’s finding that petitioner acted in an untrustworthy manner in this regard stems from petitioner’s failure to “sufficiently disclose the risks in his oral presentations to some of his clients.” Without recounting the extensive testimony adduced on this point, suffice it to say that the record contains conflicting evidence as to what petitioner did or did not say to investors regarding the nature and risks of viatical settlements. Matter of Nichols v New York State Dept. of Fin. Servs., 2017 NY Slip Op 01944m 3rd Dept 3-16-17

INSURANCE LAW (INSURANCE BROKER ENGAGED IN UNTRUSTWORTHY CONDUCT STEMMING FROM A MISLEADING AD AND WAS PROPERLY FINED)/UNTRUSTWORTHY CONDUCT (INSURANCE LAW, INSURANCE BROKER ENGAGED IN UNTRUSTWORTHY CONDUCT STEMMING FROM A MISLEADING AD AND WAS PROPERLY FINED)/VIATICAL SETTLEMENT AGREEMENTS (INSURANCE LAW, INSURANCE BROKER ENGAGED IN UNTRUSTWORTHY CONDUCT STEMMING FROM A MISLEADING AD AND WAS PROPERLY FINED)

FAILURE TO PRODUCE A COPY OF THE MAIL WATCH AUTHORIZATION REQUIRED THAT THE DETERMINATION BE ANNULLED AND EXPUNGED.

The Third Department determined the respondent did not demonstrate the mail watch which led to the charges against petitioner was properly authorized. The related evidence could not be the basis for the determination, which was annulled and expunged:

… [P]etitioner requested a copy of the mail watch authorization four times during the course of the hearing, but it was never produced and is not part of the record. Although the senior investigator testified that the mail watch was authorized by the Superintendent of the facility, the reason for its issuance and the specific facts underlying it were never disclosed and are not apparent from the record. Under these circumstances, we find that authorization for the mail watch was not established in accordance with the requirements of 7 NYCRR 720.3 (e) (1) … . Inasmuch as correspondence obtained through the unlawful mail watch was instrumental in finding petitioner guilty of solicitation and violating facility correspondence procedures, that part of the determination must ,,, be annulled … . Matter of Wilson v Commissioner of N.Y. State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 01921, 3rd Dept 3-16-17

DISCIPLINARY HEARINGS (INMATES) (FAILURE TO PRODUCE A COPY OF THE MAIL WATCH AUTHORIZATION REQUIRED THAT THE DETERMINATION BE ANNULLED AND EXPUNGED)/MAIL WATCH AUTHORIZATION (INMATE DISCIPLINARY HEARINGS, FAILURE TO PRODUCE A COPY OF THE MAIL WATCH AUTHORIZATION REQUIRED THAT THE DETERMINATION BE ANNULLED AND EXPUNGED)

DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF.

The Third Department, over a two-justice dissent, determined the motion to suppress cocaine discovered using a canine sniff after a traffic stop for tinted windows was properly denied. Enough information and inconsistencies came to the officers’ attention after the stop to warrant the dog sniff. Defendant was on parole but initially did not inform the officer of that fact, the stop was outside the county in which defendant was paroled, defendant lied about his cell phone being broken, etc.:

The prolonged diet of inconsistencies and lies provided by defendant about his travels, when coupled with his parole situation and his nervous demeanor throughout the encounter, combined to give the officers a “founded suspicion of criminality” … . This founded suspicion justified both the extension of the stop after its initial justification had been exhausted and the exterior canine sniff that followed … . … The alert gave the troopers probable cause to search the vehicle and recover the bookbag from the back seat that contained cocaine … . People v Banks, 2017 NY Slip Op 01916, 3rd Dept 3-16-17

CRIMINAL LAW (DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF)/SUPPRESSION (DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF)/TRAFFIC STOP (DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF)/CANINE SNIFF (DEFENDANT’S OMISSIONS, INCONSISTENT STATEMENTS AND LIES AFTER A ROUTINE TRAFFIC STOP JUSTIFIED THE CANINE SNIFF)

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