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JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESERVED THE ISSUE FOR APPEAL.

The Third Department, reversing defendant’s conviction, determined the jury should have been instructed a witness (Perkins) was an accomplice as a matter of law. The defendant was charged and convicted of tampering with evidence (attempting to dispose of a jacket allegedly worn when defendant committed murder). It was alleged defendant instructed Perkins to get rid of his boots. The court noted that defendant’s request for the instruction, made during deliberations in response to a jury note, preserved the issue for appeal:

… [I]t is well settled that, “to be an accomplice for corroboration purposes, the witness must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crime[] for which the defendant is on trial” … . Thus, “a ‘witness is an accomplice as a matter of law only if the jury could reasonably reach no other conclusion but that he [or she] participated in the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged'” … .

Perkins’ testimony established that she picked defendant up at the same location that the jacket was later found and she subsequently disposed of defendant’s boots pursuant to his direction. In addition, she was arrested the same day as defendant, was charged with a felony, entered into a cooperation agreement with the People and, pursuant to that agreement, pleaded guilty to a misdemeanor in exchange for her truthful testimony against defendant. When defendant requested the accomplice charge, he stated that Perkins had pleaded guilty to “obstructing governmental administration . . . in exchange for not being prosecuted for tampering.” In light of this, we find that Perkins was an accomplice as a matter of law “since [s]he could have been (and was) charged with a crime ‘based upon some of the same facts or conduct’ upon which the charge[] against defendant [was] based” … . People v Whyte, 2016 NY Slip Op 07880, 3rd Dept 11-23-16

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED A WITNESS WAS AN ACCOMPLICE AS A MATTER OF LAW (REQUIRING CORROBORATION OF THE WITNESS’ TESTIMONY), REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)/APPEALS (CRIMINAL LAW, REQUEST FOR ACCOMPLICE INSTRUCTION DURING JURY DELIBERATIONS PRESEVED THE ISSUE FOR APPEAL)

DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED.

The Third Department determined the contract between plaintiff contractor and property-owner defendant was a design specification contract, as opposed to a performance specification contract. Therefore plaintiff contractor could not be held responsible for defects in materials, methods or design, which were the responsibility of the property owner:

In contrast to a performance specification contract, which affords a contractor the freedom to choose the materials and methods employed to achieve a specified result, a design specification contract requires a contractor to use the materials, methods and design dictated by the owner, without bearing any “responsibility if the design proves inadequate to achieve the intended result” … . In other words, when there is a design specification contract, a contractor follows the architectural plans and specifications provided by an owner, and the contractor will not be responsible for the consequences of defects in such plans and specifications or be prevented from recovering contractually-agreed upon payments for work completed in compliance with them … . Whether a construction contract is one of performance or design specification turns on the language of the contract as a whole, with consideration given to factors such as “the nature and degree of the contractor’s involvement in the specification process, and the degree to which the contractor is allowed to exercise discretion in carrying out its performance” … . CGM Constr., Inc. v Sydor, 2016 NY Slip Op 07895, 3rd Dept 11-23-16

CONTRACT LAW (DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED)/DESIGN SPECIFICATION CONTRACT (DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED)/PERFORMANCE SPECIFICATION CONTRACT (DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED)/CONSTRUCTION CONTRACTS (DIFFERENCE BETWEEN A DESIGN SPECIFICATION CONSTRUCTION CONTRACT AND A PERFORMANCE SPECIFICATION CONSTRUCTION CONTRACT EXPLAINED)

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FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

The Third Department determined, under the facts, defendant’s counsel was ineffective in failing to move to suppress defendant’s statement, which was made after 26 hours of interrogation:

… “[C]ounsel had everything to gain and nothing to lose by moving to suppress the [oral statements]” … . This is not to say that counsel must always seek to suppress evidence, and we reiterate that counsel is not ineffective for failing to make meritless motions … . Under the circumstances of this case, however, had counsel taken steps to suppress statements from the interrogation, the potential upside would have been the exclusion of the inconsistent statements … . Another potential gain would have been a basis to exclude the seized physical evidence obtained by the search warrants inasmuch as these warrants were secured, in part, by information obtained from defendant’s interrogation … . Indeed, with respect to this physical evidence, counsel recognized that, by not seeking to suppress the physical evidence on which blood had been found, he had to explain the blood’s presence to the jury. He further admitted that the People’s case would have been weaker had this physical evidence been excluded. While we do not pass on whether counsel would have been ultimately successful in suppressing either defendant’s oral statements or the seized physical evidence, we do conclude that a colorable basis existed for seeking suppression. Given the potential benefit in doing so, we discern no strategic or legitimate reason to let any of this crucial evidence come in unabated at trial … . People v Zeh, 2016 NY Slip Op 07881, 3rd Dept 11-23-16

CRIMINAL LAW (FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)/ATTORNEYS (CRIMINAL LAW, FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)/INEFFECTIVE ASSISTANCE (FAILURE TO MOVE TO SUPPRESS STATEMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL)

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CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE.

The Third Department, reversing defendant’s conviction, determined the trial judge did not use the right criteria in denying defendant’s request to represent himself:

County Court inquired into defendant’s background, emphasized the importance of having counsel represent him, cautioned against the dangers of representing himself and tested defendant’s skill as an advocate with several evidentiary questions. The issue, however, is not the extent of defendant’s legal knowledge, but his capacity to knowingly waive the right to counsel … . In denying the request, County Court essentially ruled that it was not in defendant’s best interest and that the application was untimely, without expressly addressing defendant’s capacity to waive his right to counsel. Since defendant’s request was made prior to the commencement of trial, it was unquestionably timely … . Moreover, we are satisfied that defendant, who informed the court that he had obtained his GED and engaged in paralegal studies for a year, and was described by the court as “bright” and “articulate,” competently, intelligently and voluntarily waived his right to the counsel. People v Poulos, 2016 NY Slip Op 07879, 3rd Dept 11-23-16

CRIMINAL LAW (CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)/ATTORNEYS (CRIMINAL LAW, CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)/PRO SE CRIMINAL LAW, CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)/RIGHT TO COUNSEL (CRITERIA FOR INQUIRY INTO DEFENDANT’S REQUEST TO REPRESENT HIMSELF EXPLAINED, NOT MET HERE)

CLAIMANT PRECLUDED FROM FURTHER WORKERS’ COMPENSATION BENEFITS FOR FAILURE TO SEEK PERMISSION BEFORE SETTLING A RELATED TORT ACTION, MEANING OF THIRD PARTY ACTION IN THIS CONTEXT EXPLAINED.

The Third Department determined claimant did not seek permission from her Workers’ Compensation carrier before settling another action which arose from the some of the same allegations as her Workers’ Compensation claim. Therefore she was precluded from receiving future Workers’ Compensation benefits. Claimant unsuccessfully argued that the federal court action which settled was not a “third party” action within the meaning of the Workers’ Compensation Law because the action was against claimant’s co-worker and employer, not a “third party:”

“Workers’ Compensation Law § 29 (5) requires either the carrier’s consent or a compromise order from the court in which the third-party action is pending for a claimant to settle a third-party action and continue receiving compensation benefits” … . Claimant urges that her federal lawsuit was not a third-party action since the statute addresses “the negligence or wrong of another not in the same employ” (Workers’ Compensation Law § 29 [1]) and the associate dean who harassed her had the same employer as her. The Court of Appeals, however, has recently reiterated that Workers’ Compensation Law § 29, “‘read in its entirety and in context, clearly reveals a legislative design to provide for reimbursement of the compensation carrier whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits'” … . “The Court reasoned that “‘[i]t would be unreasonable to read the statute as mandating a different result merely because the recovery came out of the pockets of a coemployee [or the employer] and not from the resources of a stranger'” … . Matter of Shiner v SUNY At Buffalo, 2016 NY Slip Op 07738, 3rd Dept 11-17-16

WORKERS’ COMPENSATION LAW (CLAIMANT PRECLUDED FROM FURTHER WORKERS’ COMPENSATION BENEFITS FOR FAILURE TO SEEK PERMISSION BEFORE SETTLING A RELATED TORT ACTION, MEANING OF THIRD PARTY ACTION IN THIS CONTEXT EXPLAINED)

EXCESSIVE ABSENTEEISM JUSTIFIED DENIAL OF BENEFITS.

The Third Department determined claimant’s excessive absenteeism justified the denial of unemployment insurance benefits. The fact claimant didn’t realize the last warning was a final warning did not excuse the behavior:

Excessive absenteeism, which continues despite repeated warnings, has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits … . Here, it is undisputed that claimant was continually absent from work even after she was warned that further absences would result in disciplinary action, including discharge. Although claimant maintains that she did not realize that the last warning was her final one, this does not excuse her behavior under the circumstances presented. Matter of Mead (Commissioner of Labor), 2016 NY Slip Op 07374, 3rd Dept 11-10-16

UNEMPLOYMENT INSURANCE (EXCESSIVE ABSENTEEISM JUSTIFIED DENIAL OF BENEFITS)/ABSENTEEISM (EXCESSIVE ABSENTEEISM JUSTIFIED DENIAL OF BENEFITS)

DISSATISFACTION WITH JOB ASSIGNMENTS NOT GOOD CAUSE FOR RESIGNING.

The Third Department upheld the board’s finding claimant did not demonstrate good cause to leave her job and therefore was ineligible for unemployment insurance benefits:

… [D]issatisfaction with job assignments or responsibilities has been held to not constitute good cause for resigning … . The Board credited the testimony of claimant’s supervisor regarding the reorganization and its effect upon claimant. Claimant’s title, grade, salary, work schedule and location were not being changed and, while there were changes in her job duties, her precise duties had not been finally determined due to the ongoing and preliminary nature of the reorganization.

Significantly, claimant did not attempt to speak with any of her supervisors before resigning to raise concerns or clarify the new job duties. The Board was free to reject claimant’s disputed testimony that she resigned as a result of ongoing retaliation … . Matter of Flint-Jones (Federal Reserve Bank of N.Y.–Commissioner of Labor), 2016 NY Slip Op 07368, 3rd Dept 11-10-16

 

UNEMPLOYMENT INSURANCE (DISSATISFACTION WITH JOB ASSIGNMENTS NOT GOOD CAUSE FOR RESIGNING)

CLAIMANT’S CONNECTION TO A CORPORATION WAS NOT SUFFICIENT TO WARRANT FINDING HE WAS NOT TOTALLY UNEMPLOYED.

The Third Department determined claimant, who was listed as a principal of a corporation (Reel One), did not have a sufficient connection to the corporation to warrant the board’s decision claimant was not totally unemployed:

It is well settled that “[a] claimant who is a principal of an ongoing corporation will not be considered totally unemployed if he or she stands to benefit financially from its continued operation, no matter how minimal the activities performed on its behalf” … .

Here, there is no evidence that claimant performed any activities, however trivial, on behalf of Reel One in 2010 during the time period at issue. In addition, there is no evidence that claimant’s name appeared on any bank accounts or corporate documents. Claimant testified that his wife created Reel One as a nonprofit corporation in the 1990s before they were married and that she was the sole shareholder. Although claimant and his wife, who both had extensive journalism experience, were listed as principals of Reel One on its website, claimant testified that his wife provided this information for marketing purposes only and that the website functioned as a type of advertisement. There is no evidence that the website was actively used to transact business. Matter of Petrick (Commissioner of Labor), 2016 NY Slip Op 07363, 3rd Dept. 11-10-16

 

UNEMPLOYMENT INSURANCE (CLAIMANT’S CONNECTION TO A CORPORATION WAS NOT SUFFICIENT TO WARRANT FINDING HE WAS NOT TOTALLY UNEMPLOYED)

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ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED.

The Third Department determined all “rezoned” property-owners, deemed “necessary parties” by Supreme Court in this action to annul a local law rezoning property for industrial use. were, in fact, not “necessary parties.” The petition, which had been dismissed for failure to timely serve the newly-added “necessary parties,” was reinstated. The local law, which would allow a recycling center in a previously residential-agricultural zone, was challenged based upon an alleged failure to comply with the State Environment Quality Review Act:

The newly-added respondents were not necessary parties merely because the ordinance at issue affected their property rights. “‘[T]he absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion'” (Bayview Loan Servicing, LLC v Sulyman, 130 AD3d 1197, 1198 [2015], quoting Matter of Estate of Prospect v New York State Teachers’ Retirement Sys., 13 AD3d 699, 700 [2004]). Given a court’s power to raise the issue, it is notable that the Court of Appeals and this state’s appellate courts, including this Court, have long entertained challenges to municipalities’ legislative actions in regard to zoning ordinances without requiring the joinder of every property owner whose rights are affected by the ordinance at issue … . ]). This has been true even when the ordinance at issue is one that, on its face, is likely to dramatically affect the property rights held by real property owners (see e.g. Matter of Wallach v Town of Dryden, 23 NY3d 728, 740 [2014]). Although this Court has, in limited cases, found property owners to be necessary parties in regard to legal challenges to municipal ordinances that affect the property owners’ rights, it has only done so in cases where the owners had obtained an actual approval pursuant to the challenged zoning ordinance that would be adversely impacted by a judgment annulling that ordinance … . Matter of Hudson Riv. Sloop Clearwater, Inc. v Town Bd. of The Town of Coeymans, 2016 NY Slip Op 07358, 3rd Dept 11-10-16

MUNICIPAL LAW (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)/ZONING (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)/ENVIRONMENTAL LAW (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)/CIVIL PROCEDURE (ALL PROPERTY OWNERS AFFECTED BY A CHALLENGED ZONING ORDINANCE ARE NOT NECESSARY PARTIES IN THE ACTION, ORIGINAL PETITION, WHICH DID NOT NAME ALL AFFECTED PARTIES, ALLOWED TO PROCEED)

HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY INTO THE NATURE AND RELIABILITY OF CONFIDENTIAL INFORMATION, DETERMINATION ANNULLED.

The Third Department concluded the nature of the confidential information provided to the hearing officer and the hearing officer’s failure to adequately inquire into the reliability of the information required annulment of the determination:

Here, the confidential information considered by the Hearing Officer consisted of, among other things, memoranda prepared by correction officials that briefly summarized their interviews with three confidential sources who stated, in conclusory fashion, that petitioner was the individual who broke the window. In addition, a memorandum and photo array identification were provided by one of the confidential sources, but were similarly lacking in detail. The Hearing Officer also considered the confidential testimony of the two correction officials who spoke directly with the confidential sources. The officials related that the sources identified petitioner as the individual who broke the window, but did not reveal any specific information regarding the basis of their knowledge. Significantly, there is no indication that the sources actually witnessed petitioner break the window nor any explanation as to how they acquired this information. In addition, the correction officials who interviewed them did not provide any endorsement of their reliability other than to state that they freely provided the information and were not coerced. Under these circumstances, we conclude that the Hearing Officer failed to undertake the requisite independent assessment of the confidential information to establish its reliability … . Matter of Belliard v New York State Dept. of Corr., 2016 NY Slip Op 07382, 3rd Dept 11-10-16

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY INTO THE NATURE AND RELIABILITY OF CONFIDENTIAL INFORMATION, DETERMINATION ANNULLED)/EVIDENCE (INMATE DISCIPLINARY HEARINGS, HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY INTO THE NATURE AND RELIABILITY OF CONFIDENTIAL INFORMATION, DETERMINATION ANNULLED)

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