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EXOTIC DANCERS WERE EMPLOYEES.

The Third Department determined exotic dancers were employees entitled to unemployment insurance benefits:

The record reflects that the club would evaluate prospective dancers and instruct those who were inexperienced to observe a more experienced dancer. If the club determined that a dancer was “unappealing,” the dancer would not be permitted to continue to perform. Additionally, the dancers were required to present proof of legal age and citizenship or their services would not be engaged. The club charged patrons an admission fee and set the prices that the dancers would charge patrons for private one-on-one dances, with the club retaining a percentage thereof, and patrons would pay the club’s bartender for the private dances. While the dancers could set their own schedules, the club would compile a nightly list of the dancers scheduled to perform and post it on its website. Finally, the club provided the stage, private dance rooms, lighting and sound equipment, while the dancers supplied their own costumes and music. Matter of Greystoke Indus. LLC (Commissioner of Labor), 2016 NY Slip Op 05890, 3rd Dept 8-25-16

 

UNEMPLOYMENT INSURANCE (EXOTIC DANCERS WERE EMPLOYEES)

CLAIMANT DID NOT DEMONSTRATE SUFFICIENT ATTEMPTS TO RETURN TO WORK TO WARRANT BENEFITS; TOTAL INDUSTRIAL DISABILITY CLAIM SENT BACK, JUDGE AND BOARD FAILED TO DISCUSS THE RELEVANT FACTORS IN THE DENIAL OF THAT CLAIM.

The Third Department determined claimant, who was found to have a work-related permanent partial disability, did not demonstrate a sufficient attachment to the labor market to warrant benefits. Claimant’s only attempt to go back to work was enrollment in an unfunded training program. The court sent the “total industrial disability” claim back because the Workers’ Compensation Law Judge and the Board did not cite any medical evidence in support of the denial of the “total industrial disability” claim:

Although the Board has found that a claimant remains attached to the labor market when it is shown that he or she is actively participating in a job location service or a Board-approved vocational rehabilitation … , we find that the Board’s determination here — that by relying solely on an unfunded training program, claimant was not actively participating in vocational rehabilitation and had voluntarily removed himself from the labor market — is supported by substantial evidence and will not be disturbed … .

… [A] “claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment” … . While the Board’s determination regarding a total industrial disability will be upheld if supported by substantial evidence ,,, , “Workers’ Compensation Law § 23 requires the Board to include in its decision a statement of facts which formed the basis of its action on the issues raised” … .

Here, the WCLJ found a lack of total industrial disability based solely upon claimant’s failure to seek employment after his accident, with no discussion of the relevant factors relating to a total industrial disability. Matter of Walker v Darcon Constr. Co., 2016 NY Slip Op 05888, 3rd Dept 8-25-16

 

WORKERS’ COMPENSATION LAW (CLAIMANT DID NOT DEMONSTRATE SUFFICIENT ATTEMPTS TO RETURN TO WORK TO WARRANT BENEFITS; TOTAL INDUSTRIAL DISABILITY CLAIM SENT BACK, JUDGE AND BOARD FAILED TO DISCUSS THE RELEVANT FACTORS IN THE DENIAL OF THAT CLAIM)

POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT.

The Third Department determined the police officer’s slip and fall on a wet stair was not an accident entitling him to accidental disability retirement benefits:

Petitioner’s search of the residence following the burglary was a part of his routine duties as a police officer. He acknowledged that it was lightly raining when he conducted the search and, although he did not see water pooling on the stairs, he believed that they were wet. He stated that he did not realize that the stairs were slippery until his foot slipped on the top stair. Notwithstanding this, petitioner could have reasonably anticipated the slippery condition of the stairs under the circumstances presented … . Matter of Magistro v DiNapoli, 2016 NY Slip Op 05893, 3rd Dept 8-25-16

RETIREMENT AND SOCIAL SECURITY LAW (POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT)/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT)/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICER’S SLIP AND FALL DURING A BURGLARY INVESTIGATION NOT AN ACCIDENT)

HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED.

The Third Department annulled the determination and sent the matter back for a new hearing because the hearing officer applied the wrong legal standard. The matter concerned a police officer seeking accidental disability retirement benefits:

… [T]he Hearing Officer applied the incorrect legal standard in rendering her decision. Specifically, the Hearing Officer confined her analysis to whether the initial determination was supported by substantial evidence, rather than undertaking a “‘redetermination'” and exercising “‘the same powers upon such hearing as upon the original application'” … . As this Court recently noted in Matter of DeMaio v DiNapoli (137 AD3d 1545, 1545-1546 [2016]), such deficiency constitutes an error of law requiring annulment of the determination. Matter of Bodenmiller v DiNapoli, 2016 NY Slip Op 05894, 3rd Dept 8-25-16

RETIREMENT AND SOCIAL SECURITY LAW (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED)/POLICE OFFICERS (ACCIDENTAL DISABILITY RETIREMENT BENEFITS, HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED)/ACCIDENTAL DISABILITY RETIREMENT BENEFITS (POLICE OFFICERS,  HEARING OFFICER APPLIED THE WRONG REVIEW STANDARD, NEW HEARING ORDERED)

DESPITE REGISTERING TO VOTE IN WASHINGTON DC, CANDIDATE FOR STATE SENATE MET NEW YORK’S RESIDENCY REQUIREMENTS.

[REVERSED BY COURT OF APPEALS—SEE AUGUST 29 “JUST RELEASED’ PAGE] The Third Department, over a two-justice dissent, reversing Supreme Court, determined that a candidate for State Senator (Glickman) met the five-year New York residency requirement, despite Glickman’s having registered to vote in Washington D.C. in 2014:

… [T]estimony presented at the hearing, which Supreme Court found credible, established that Glickman left his father’s home in Tonawanda, New York in 2007 in order to attend college and graduate school in Maryland and, eventually, moved to the Washington, D.C. area. During this time, Glickman returned to his father’s home multiple times a year. He kept personal belongings at the Tonawanda home and continued to use that mailing address for his driver’s license, credit card and bank statements, and other bills. Glickman also retained his doctor and dentist in New York during the period in question, as well as maintained his membership in a New York synagogue, where he participated in services, including being the Shofar blower in the Jewish New Year services each year since 2007. Following the purchase of a vehicle in 2013, Glickman stored that vehicle in his father’s garage during the winter months.

From October 2013 until March 2015, Glickman lived in a “community organizer’s house” in Washington, D.C., during which time he was employed on a yearly basis with a consulting firm and as a part-time high school teacher. Glickman testified that, although the better job opportunities remained in Washington, D.C., he was looking to return to New York. In March 2015, Glickman returned to his Tonawanda home and, in May 2015, he re-registered to vote there. In October 2015, Glickman moved and changed his voter registration to 207 Milburn Street in Rochester, New York, where he has signed two consecutive leases. Glickman bought furniture for his home on Milburn Street, paid utilities and had bills sent there, and changed the address on his license to that address.

Under the circumstances here, the evidence adduced regarding compliance with the five-year residency requirement demonstrates Glickman’s “legitimate, significant and continuing attachments” in order to establish New York as his residence for Election Law purposes … . Even if Glickman had registered and voted in Washington, D.C., based on how New York courts have interpreted Election Law § 1-104 (22), that, in and of itself, does not demonstrate as a matter of law that he intended to abandon his New York residence at the precise point of registering … . Because objectors failed to establish by clear and convincing evidence any “aura of sham” in Glickman’s electoral residency for the purpose of obtaining the candidacy … , the petitions should not have been invalidated. Matter of Glickman v Laffin, 2016 NY Slip Op 05841, 3rd Dept 8-18-16

ELECTION LAW (DESPITE REGISTERING TO VOTE IN WASHINGTON DC, CANDIDATE FOR STATE SENATE MET NEW YORK’S RESIDENCY REQUIREMENTS)/RESIDENCY (ELECTION LAW, DESPITE REGISTERING TO VOTE IN WASHINGTON DC, CANDIDATE FOR STATE SENATE MET NEW YORK’S RESIDENCY REQUIREMENTS)

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GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA.

The Third Department, over an extensive dissent, determined: (1) a claim of grand juror bias is forfeited by a guilty plea; and (2) erroneous advice from defense counsel indicating the issue was appealable the guilty plea provided defendant with a ground for moving to withdraw his plea:

Inasmuch as defendant’s misunderstanding as to his ability to appeal the juror bias issue was brought to County Court’s attention at sentencing, we find that defendant’s challenge to the voluntariness of his plea has been sufficiently preserved for our review … , notwithstanding the absence of an appropriate postallocution motion. Once County Court learned that defendant had been given erroneous advice by counsel, the court should have conducted a further inquiry to ascertain whether defendant wished to go forward with the plea … . Absent such inquiry by County Court, and in light of the fact that the record otherwise presents “a genuine issue of fact as to the knowing, intelligent and voluntary nature of defendant’s guilty plea” … , this matter must be remitted to County Court to afford defendant an opportunity to either accept the plea that was offered or move to withdraw his plea … . People v Clark, 2016 NY Slip Op 05831, 3rd Dept 8-18-16

CRIMINAL LAW (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/APPEALS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)/ATTORNEYS (CRIMINAL LAW, (GRAND-JUROR BIAS ISSUE IS FORFEITED BY A GUILTY PLEA; ERRONEOUS ADVICE RE APPEALABILITY OF THE ISSUE REQUIRED REMITTAL TO GIVE DEFENDANT OPPORTUNITY TO MOVE TO WITHDRAW HIS PLEA)

LICENSED CREATIVE ARTS THERAPIST WAS AN EMPLOYEE ENTITLED TO BENEFITS.

The Third Department determined that claimant, a licensed creative arts therapist, was an employee of CompassionNet, which provides home care to sick and terminally ill children:

… [T]he record evidence demonstrates, that while claimant was not required to undergo any training, she submitted a résumé and went through an interview process that was several hours in duration. Upon being selected for placement on a panel of therapists, claimant signed an agreement identifying her as an independent contractor; however, that agreement required claimant to adhere to policies established by CompassionNet and prohibited her from employing or subcontracting another therapist in her place without the prior written consent of CompassionNet. A schedule attached to the agreement unilaterally established the fees that clients would be charged for claimant’s services and the amounts that she would be reimbursed for her travel expenses, including parking and tolls. Although claimant could decline a particular assignment, the agreement provided that, upon being assigned, a case manager would establish the visit frequency and the duration and time of day that claimant would provide her services, and required claimant to submit documentation to CompassionNet within 72 hours of providing services and invoices in a predetermined format at least monthly. To that end, claimant was paid for her services regardless of whether CompassionNet received payment from, or on behalf of, the client. While CompassionNet required claimant to maintain her own professional liability insurance, claimant explained that she was never self-employed as a creative arts therapist and that she did not provide her services for any other entity during the time period in question. Matter of Kliman (Genesee Region Home Care Assn., Inc. — Commissioner of Labor), 2016 NY Slip Op 05680, 3rd Dept 7-28-16

UNEMPLOYMENT INSURANCE (LICENSED CREATIVE ARTS THERAPIST WAS AN EMPLOYEE ENTITLED TO BENEFITS)

HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED.

The Third Department determined petitioner was entitled to a new hearing. An inmate petitioner wished to call as a witness refused to testify, giving a reason which was on its face untrue. In that circumstance, the hearing officer was obligated to inquire further into the reason for the inmate’s refusal:

During the disciplinary hearing, petitioner requested the testimony of the other inmate who was present in the room at the time of the incident. The Hearing Officer contacted that inmate, who refused to testify and executed a refusal form stating, “I know nothing.” This statement, however, is belied by evidence in the record. According to the unusual incident report, the potential inmate witness informed correction officers that petitioner “stabbed [the victim] with the weapon that was found in the garbage can.” Notably, the Hearing Officer specifically referenced the witness’s account of the incident in his statement of the evidence that he relied on in making the determination of guilt. Inasmuch as evidence in the record “casts doubt on the authenticity of the reason[] given” for the witness’s refusal … , and there is nothing in the record indicating that the Hearing Officer made any further inquiry, we find that petitioner’s right to call witnesses was violated … . Insofar as the Hearing Officer articulated a good-faith reason for the denial of the witness, “this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” … . Matter of Peterson v Annucci, 2016 NY Slip Op 05681, 3rd Dept 7-28-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S HEARING, NEW HEARING ORDERED)/INMATES (HEARING OFFICER SHOULD HAVE INQUIRED FURTHER INTO INMATE’S REFUSAL TO TESTIFY IN PETITIONER’S DISCIPLINARY HEARING, NEW HEARING ORDERED)

PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED.

The Third Department determined meth-lab evidence and defendant’s Mirandized statements should have been suppressed. The police were called to an apartment and heard the sounds of a physical altercation inside. The police opened the unlocked door and separated the two men who were fighting. Defendant then came out the bathroom and was asked to sit down. The officers heard someone in the back bedroom which defendant rented. Defendant told the police his wife was in the back bedroom. The officers knocked on the locked bedroom door and defendant’s wife said she had to get dressed. She then came out of the bedroom into the living room. One of officers smelled a chemical odor in the back bedroom, went in, lifted up a shirt and found the meth lab equipment. The Third Department held that a protective sweep of the back bedroom was not justified (the concurrence disagreed). In addition the Third Department determined the People did not demonstrate defendant’s Mirandized statements were sufficiently attenuated from the improper questioning of the defendant at the apartment. With regard to the protective sweep, the court wrote:

… [T]he question is whether, on these facts, the officers were entitled to enter and look under clothing in defendant’s bedroom as part of a protective sweep, which “is a quick and limited search of premises . . . conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding” … . Recognizing the dangers faced by police officers who enter homes, the Supreme Court of the United States has held that officers may, “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” … . Beyond that precautionary measure, the Court held that, to conduct a further protective sweep, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene” … . People v Harris, 2016 NY Slip Op 05670, 3rd Dept 7-28-16

 

CRIMINAL LAW (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/SUPPRESSION (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (PROTECTIVE SWEEP WHICH UNCOVERED METH LAB NOT JUSTIFIED; MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/STATEMENTS (CRIMINAL LAW, MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENTUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)/ATTENUATION (CRIMINAL LAW, MIRANDIZED STATEMENTS NOT SUFFICIENTLY ATTENUATED FROM IMPROPER QUESTIONING; SUPPRESSION SHOULD HAVE BEEN GRANTED)

OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK.

The Third Department determined the Oklahoma statute prohibiting possession of a firearm could not be used as a predicate felony in New York. The Oklahoma statute does not have an operability element. In New York operability is a required element:

County Court erred in sentencing defendant as a second felony offender, as the elements of his predicate Oklahoma felony were not “equivalent to those of a New York felony” … . As relevant here, the inquiry regarding equivalency is “limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes” … . Defendant was previously convicted under an Oklahoma statute prohibiting possession of a firearm by a felon; however, operability is not a required element of the Oklahoma statute … . In New York “[o]perability is a required element of the crime of criminal possession of a handgun, rifle or shotgun” … . Thus, as the comparable New York statute requires an element that the Oklahoma crime does not, defendant’s Oklahoma conviction cannot support a finding that he was a second felony offender … . People v Gibson, 2016 NY Slip Op 05668, 3rd Dept 7-28-16

CRIMINAL LAW (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/PREDICATE FELONY (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/SECOND FELONY OFFENDER (OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)/SENTENCING (SECOND FELONY OFFENDER, OKLAHOMA FIREARM STATUTE DOES NOT HAVE AN OPERABILITY ELEMENT AND CANNOT THEREFORE SERVE AS A PREDICATE FELONY IN NEW YORK)

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