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EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL.

The Third Department, in a full-fledged opinion by Justice Devine, over a partial dissent, determined the Education Law statute which requires a 60% majority vote to increase property taxes beyond the statutory cap (to fund local school districts) is constitutional.  The Election Article of the New York Constitution, the due process clause, the right to equal protection under the law, and the fundamental right to vote were deemed not to have been violated by the statute. With regard to the equal protection argument, the court wrote:

Defendants suggest, and plaintiffs do not dispute, that Education Law § 2023-a ,,, [was] designed with the legitimate goal in mind of restraining onerous property tax increases that were believed to be depressing economic activity in the State … . Plaintiffs suggest that it is irrational to achieve this legitimate aim in a manner that impairs local control of schools and deters poorer school districts that would otherwise seek a property tax increase over the tax cap to keep pace with educational needs. It suffices to say that, while Education Law § 2023-a … incentivize[s] districts and their residents to avoid property tax increases over the tax cap, neither prevents such increases if sufficient community support exists for them (see Education Law § 2023-a [6]). The differences in the services offered by various school districts accordingly result from a permissible consequence of local control over schools, namely, the variable “willingness of the taxpayers of [different] districts to pay for and to provide enriched educational services and facilities beyond what the basic per pupil expenditure figures will permit” … . Inasmuch as there is nothing irrational in this, plaintiffs' equal protection claims fail … . New York State United Teachers v State of New York, 2016 NY Slip Op 03572, 3rd Dept 5-5-16

EDUCATION-SCHOOL LAW (EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL)/TAX LAW (EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL)/CONSITUTIONAL LAW  (EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL)

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AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED.

The Third Department reversed defendant's conviction of the statutory sale of more than one-half ounce of heroin and the related conspiracy conviction (the remaining 15 counts were not reversed). The court determined the evidence of the amount of heroin sold was equivocal:

A statutory sale may be proven by evidence of an offer or agreement to sell drugs, but “the weight of the material must be independently shown” … . Here, no narcotics were recovered by the police, and the proof of the weight of heroin that defendant agreed to procure for [codefendant] Cochran was equivocal; while the amount of 16 grams was discussed, Cochran also stated that he might purchase “something like that” or, because he had limited funds and other expenses, might “get something lower.” As the People correctly argue, the full amount of transferred narcotics need not always be recovered to satisfy the weight requirement when a sale is based upon an offer or an agreement; nevertheless, there must be some form of independent evidence from which the total weight can be extrapolated … . As there was none here, defendant's conviction for criminal sale of a controlled substance in the second degree is reversed and the corresponding count of the indictment dismissed … . People v Wright, 2016 NY Slip Op 03550, 3rd Dept 5-5-15

CRIMINAL LAW (AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED)/STATUTORY SALE (CRIMINAL LAW, AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED)/WEIGHT OF DRUGS (AMOUNT OF HEROIN ALLEGED TO HAVE BEEN SOLD NOT PROVEN, STATUTORY SALE AND RELATED CONSPIRACY COUNTS DISMISSED)

FAILURE TO READ JURY NOTE VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL.

The Third Department determined the trial judge made a mode of proceedings error by failing to read to the parties, verbatim, a note from the jury:

… [W]e conclude that County Court committed a mode of proceedings error for which no objection was necessary … . The court had an affirmative obligation to read exhibit No. 5 verbatim so that the parties had the opportunity to accurately analyze the jury's question and frame intelligent suggestions for the court's response … . The record is devoid of any information as to whether defendant knew about the portion of exhibit No. 5 stating “# 8G 4NG.” The ambiguity of the notation is also of concern to this Court.

Although the parties requested that the court inquire as to whether the jury had reached a verdict and whether it was “complete,” we cannot speculate as to what defendant knew about exhibit No. 5 … . Furthermore, “we cannot assume that the omission was remedied at an off-the-record conference” … . Accordingly, as County Court committed a mode of proceedings error as to exhibit No. 5, we must remit for a new trial on counts 1 through 9 of the consolidated indictment. People v Victor, 2016 NY Slip Op 03551, 3rd Dept 5-5-16

CRIMINAL LAW (FAILURE TO READ JURY NOTE VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL)/JURIES (CRIMINAL LAW, FAILURE TO READ JURY NOTE VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL)

MECHANIC WAS AN EMPLOYEE OF USED CAR SELLER.

The Third Department determined a mechanic was an employee of Guardi, who bought used cars, repaired and sold them:

… [A]lthough Guardi did not advertise for claimant's services, claimant filled out paperwork that he characterized as an application for employment prior to working for Guardi. Upon being hired, Guardi offered and established claimant's rate of pay at $10 an hour. Claimant testified that after pricing the cost of repairs for a used vehicle and discussing those repairs with Guardi, Guardi would instruct him whether to make the repairs and, at times, would also make repair suggestions to claimant. Guardi provided claimant with a garage to perform the repairs that included certain equipment, such as a vehicle lift, tire-changing machine and a compressor … . Guardi also disposed of old motor oil and used tires and maintained the equipment located in the garage. While claimant owned his own tools, he kept those tools at the garage, and he did not maintain his own auto-repair business or repair vehicles for any other employer. Aside from repairing vehicles, claimant also assisted Guardi with customer service and, on occasion, sold a used vehicle, for which he would receive a commission of $50. In addition to issuing claimant a weekly paycheck, claimant was expected to work the same hours as other employees at Used Auto and report for work on time each day. Claimant was required to contact Guardi if he was sick or unable to report to work on a given day, was required to obtain permission to take time off from work and record the start and end of his shifts and meals on a timeclock … . Matter of DeVaul (Guardi — Commissioner of Labor), 2016 NY Slip Op 03233, 3rd Dept 4-28-16


SECURITY CONSULTANT WAS EMPLOYEE OF OFF-TRACK BETTING FACILITY DESPITE INDEPENDENT CONTRACTOR DESIGNATION IN AGREEMENT.

The Third Department determined a security consultant who worked undercover at an Off-Track Betting (OTB) facility (Race Palace) was an employee despite the “independent contractor” designation in the written agreement:

… Claimant and the other security consultants provided services exclusively at the location of the Race Palace and claimant's work schedule was established through consultation with another security consultant. He was compensated at a negotiated hourly rate of pay that was set forth in an independent contractor agreement and was required to submit claim forms and activity reports detailing his services within established time frames in order to receive payment from OTB. In addition, he was reimbursed by OTB for certain preapproved expenses and was required to keep all information regarding his services strictly confidential. In view of the foregoing, substantial evidence supports the Board's finding that OTB retained the requisite control necessary to establish the existence of an employment relationship … . Although the written agreement designated claimant as an independent contractor, it is not dispositive of claimant's employment status … . Matter of Dwyer (Nassau Regional Off-Track Corp. — Commissioner of Labor), 2016 NY Slip Op 03232, 3rd Dept 4-28-16


NURSE WAS AN EMPLOYEE OF COMPANY WHICH DOES HEALTH SCREENING OF EMPLOYEES OF CORPORATE CLIENTS.

The Third Department determined a nurse who worked for Summit Health, which screens employees of corporate clients, was an employee entitled to unemployment insurance benefits:

Summit posted openings for medical examiners on its website, interviewed applicants and screened their education, license credentials and experience to ensure their qualifications and ability to perform the required medical services. Summit scheduled the clinics with its clients, who determined what services were needed; Summit then posted the clinic dates, enabling examiners to sign up to work based upon their availability, and they were paid a set hourly rate. Summit provided all of the equipment and supplies for the clinics and reimbursed the examiners for certain travel and other expenses. If examiners could not work as scheduled, they reported to Summit, which looked for a replacement. Summit solicited claimant to work for it after reviewing her credentials posted on a job website. Claimant worked as a health examiner and a registrar as well as a lead examiner responsible for oversight of the clinic, bringing and returning supplies and equipment provided by Summit, submitting patient consent forms to Summit, resolving problems and reporting back to Summit after the clinic was completed. Examiners were required to sign contracts designating them as independent contractors, which obligated them to comply with industry best practices and provided training available for that purpose; they were required to wear a Summit identification badge and to abide by a dress code at clinics, among other provisions.

Given the foregoing, we find that there was substantial evidence to support the Board's determination that Summit retained sufficient overall control over the work performed by claimant to establish that she was an employee of Summit … . Matter of Armbruster (Summit Health, Inc. — Commissioner of Labor), 2016 NY Slip Op 03231, 3rd Dept 4-28-16


PART-TIME ATTORNEY WAS AN EMPLOYEE OF SOLO PRACTITIONER.

The Third Department determined a part-time attorney was an employee of a solo practitioner, Charleston, who worked out of an office in the basement of his house:

Here, the record reflects that Charleston assigned specific legal work to the attorney, advised him of the general deadline associated with each assignment and paid him a set hourly rate for his services, which he received once the relevant clients paid their bills. While the attorney was free to accept or reject assignments, work from home and dictate his own schedule, the nature and frequency of the assignments were controlled by Charleston, and Charleston retained ultimate responsibility to the clients for the quality of the work performed. In addition, Charleston negotiated all retainer agreements, co-billed for his and the attorney's services, reimbursed the attorney for parking expenses, regardless of whether the clients paid that portion of their bills, and, at all times, remained the attorney of record. Furthermore, Charleston and the attorney did not have a written contract and the attorney was permitted to, and often did, use Charleston's office and equipment to carry out his assignments. Thus, despite evidence in the record that could support a contrary result, the Board's finding of an employment relationship is supported by substantial evidence… . Matter of Charleston (Commissioner of Labor), 2016 NY Slip Op 03230, 3rd Dept 4-28-16


PRISONER CONVICTED OF A CRIME COMMITTED WHEN HE WAS SIXTEEN AND SUBJECT TO A LIFE SENTENCE IS CONSTITUTIONALLY ENTITLED TO A PAROLE HEARING WHICH TAKES HIS YOUTH AT THE TIME OF THE OFFENSE INTO ACCOUNT.

The Third Department, in a full-fledged opinion by Justice McCarthy, over a concurrence and a two-justice partial dissent, determined petitioner was entitled to a de novo parole hearing in which his age at the time of the offense (16) is taken into account. Claimant was convicted of strangling his 14-year-old girlfriend and was sentenced to 22 years to life. Since serving 22 years in 2000, claimant, now 54, has been denied parole nine times. The Third Department ruled that the Eighth Amendment protection against cruel and unusual punishment required that the parole board consider petitioner's youth at the time of the offense, noting that claimant has a right not to be punished with a life sentence if the crime reflects transient immaturity:

The [Parole] Board, as the entity charged with determining whether petitioner will serve a life sentence, was required to consider the significance of petitioner's youth and its attendant circumstances at the time of the commission of the crime before making a parole determination. That consideration is the minimal procedural requirement necessary to ensure the substantive Eighth Amendment protections set forth in Graham v Florida (560 US 48 [2010]), Miller v Alabama (___ US ___, 132 S Ct 2455 [2012]) and Montgomery v Louisiana (___ US ___, 136 S Ct 718 [2016]). * * *

… [T]he Supreme Court of the United States held in Miller v Alabama (supra) that mandatory sentences of life without the possibility of parole for juvenile homicide offenders violate the Eighth Amendment's prohibition on cruel and unusual punishment (id. at 2460). As that Court has since clarified, a substantive rule announced in Miller is “that life without parole is an excessive sentence for children whose crimes reflect transient immaturity” (Montgomery v Louisiana, 136 S Ct at 735). The Court considered this guarantee in the context of the sentencing stage, and it found that the “procedural requirement necessary to implement [this] substantive guarantee” is “a hearing where youth and its attendant characteristics are considered” for the purpose of “separat[ing] those juveniles who may be sentenced to life without parole from those who may not” … . * * *

A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court. Matter of Hawkins v New York State Dept. of Corr. & Community Supervision, 2016 NY Slip Op 03236, 3rd Dept 4-28-16


HEART ATTACK DEEMED WORK-RELATED.

The Third Department determined substantial evidence supported the conclusion decedent-worker's heart attack was employment-related. Decedent suffered the heart attack while walking to a storage structure in freezing temperatures:

[T]he testimony and evidence in the record demonstrates that shortly before decedent collapsed, he was instructed to add insulation in an attempt to fix the frozen valve and, to do so, traveled outside at night across snow-covered ground in freezing temperatures to locate and retrieve additional insulation from a storage structure located at least 500 feet away. In addition, Thomas Martin, the lead process operator, explained in his testimony that if decedent and his colleague were unable to quickly fix the frozen valve that evening, the glycol treatment facility at the airport would have “shut[] down.” Based upon the foregoing, Raymond Basri, a doctor specializing in internal medicine with 25 years of experience in diagnostic cardiology who reviewed decedent's medical records, opined that decedent's work activities immediately prior to his collapse, in combination with the environmental conditions at that time and the physical and emotional stress associated with having to assist with the timely repair of the frozen valve, were significant contributing factors to decedent's acute myocardial infarction and resulting death. Matter of Kilcullen v AfFCO/Avports Mgt. LLC, 2016 NY Slip Op 03033, 3rd Dept 4-21-16


RADIATION THERAPIST WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, DESPITE INDEPENDENT-CONTRACTOR DESIGNATION IN THE AGREEMENT.

The Third Department determined a licensed radiation therapist (RT) was an employee of La Cruz Radiation Consultants and was therefore entitled to unemployment insurance benefits, despite the use of the term “independent contractor” in the relevant agreement:

La Cruz screened the RTs' credentials and assigned them to its clients to provide radiation therapy services, directing them where and when to report. La Cruz paid the RTs a set rate of $50 per hour, did not take payroll deductions from their salary and issued 1099 tax forms; La Cruz required that the RTs submit to it biweekly time sheets signed by the client's supervisor, and La Cruz, in turn, billed the clients an increased price for the RTs' services and collected all payments from the client. Once assigned, the client determined the RTs' schedule to meet their staffing needs and whether to continue to use their services or seek a different referral from La Cruz, and the client's chief radiology therapist or physician oversaw their work. Under the agreement that designated the RTs as independent contractors, claimant was required to call La Cruz and the client if she could not be at work at the scheduled time, questions regarding payment for services were directed to La Cruz and the RTs were prohibited from working directly for the assigned clients or La Cruz competitors. La Cruz would find replacements for the RTs if they could not work the schedule set by the client for any reason. Claimant testified that, on the day that the client informed her that her services no longer were needed, she was under consideration to be hired as an employee of the client and, because the client had not given advance notice of her discharge, La Cruz reimbursed her for expenses for her travel to the client. Notwithstanding proof in the record that might support a contrary conclusion, we find that the foregoing constitutes substantial evidence to support the Board's decisions that La Cruz, while not directly supervising claimant's daily RT activities for the client, retained sufficient overall control over the work performed by claimant and those similarly situated to establish an employer-employee relationship… . Matter of Ryan (La Cruz Radiation Consultants, Inc.–Commissioner of Labor), 2016 NY Slip Op 03038, 3rd Dept 4-21-16


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