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FAMILY COURT APPLIED THE WRONG LAW RE: EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO A NONPARENT; EXTRAORDINARY CIRCUMSTANCES FINDING IS APPEALABLE EVEN THOUGH CUSTODY WAS AWARDED TO MOTHER.

The Third Department reversed Family Court’s finding that extraordinary circumstances justified the award of custody of the child to mother’s cousin. After finding extraordinary circumstances supporting the award of custody to a nonparent had been demonstrated, Family Court went on to find that the best interests of the child required an award of custody to mother. The Third Department noted that a finding of extraordinary circumstances justifying the award of custody to a nonparent is appealable by the mother, even though custody was ultimately awarded to her. In making the “extraordinary circumstances” finding, Family Court had erroneously relied on Domestic Relations Law 72, which applies only to custody awards to grandparents. The court explained the correct applicable law:

 

“[A] parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, disruption of custody over an extended period of time or other extraordinary circumstances” … . “[T]he nonparent bears the heavy burden of proving extraordinary circumstances and the existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances” … . “The extraordinary circumstances analysis must consider ‘the cumulative effect’ of all issues present in a given case” …, including, among others, “the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” … . Since a finding of extraordinary circumstances may have enduring consequences for the parent … , it can be challenged on appeal even if, as here, the parent ultimately obtained custody. Matter of Brown v Comer, 2016 NY Slip Op 01218, 3rd Dept 2-18-16

 

FAMILY LAW (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)/CHILD SUPPORT STANDARDS ACT (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)

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A DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES IS SUFFICIENT TO SUPPORT CIVIL COMMITMENT IN A SECURE FACILITY PURSUANT TO CPL 330.20.

In finding that respondent suffers from a dangerous mental disorder requiring civil commitment in a secure facility, the Third Department first determined a diagnosis of antisocial personality disorder (ASPD) with narcissistic and paranoid features was sufficient to justify civil commitment pursuant to Criminal Procedure Law 330.20:

… [R]espondent contends, among other things, that the fact that ASPD, alone, is a legally insufficient diagnosis for the purposes of civil confinement pursuant to Mental Hygiene Law article 10 (see Matter of State of New York v Donald DD., 24 NY3d 174, 191 [2014]) merits the conclusion that a diagnosis of ASPD with narcissistic and paranoid features is a legally insufficient diagnosis for the purposes CPL 330.20. The Supreme Court of the United States has established that “[s]tates retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for [civil] commitment” … . The constitutional guarantee of due process limits that discretion, however, by ensuring that civil commitment is not used as a mechanism to identify and confine the dangerous but “typical [criminal] recidivist[s]” … . With this in mind, proof sufficient to satisfy due process requires proof of a mental condition that causes a person to have serious difficulty in controlling his or her dangerous behavior … .

* * * CPL 330.20 (1) (c) … does not limit the relevant form of dangerousness in the same manner; it only requires a relationship between respondent’s current mental condition and “a physical danger to himself [or herself] or others.”

Further, the diagnosis of ASPD with narcissistic and paranoid features is more specific than a generic ASPD diagnosis. Accordingly, this case does not force us to confront a generic ASPD diagnosis that, as elucidated by expert evidence, “means little more than a deep-seated tendency to commit crimes” … . Therefore, we turn to the expert evidence further clarifying respondent’s ASPD diagnosis and its attendant narcissistic and paranoid features.

Expert testimony established that ASPD causes individuals to have “distortions related to their thoughts [and] behaviors, and . . . a reckless disregard for societal norms.” Individuals are diagnosed with narcissistic features when they engage in “grandiose” thinking, have a “sense of self-importance” and feel “entitled” and possibly omnipotent. Finally, individuals with paranoid features often have feelings that “people are out to get them.” Considering this evidence, we conclude that a mental condition marked by a disregard for societal norms and specifically amplified by an unreasonably inflated sense of self worth and an irrational attribution of hostile intentions to other people sufficiently distinguishes a respondent from the typical recidivist and has a relationship to the requisite dangerousness pursuant to CPL 330.20. Accordingly, we conclude that the diagnosis of ASPD with narcissistic and paranoid features is not legally insufficient to support civil confinement pursuant to CPL 330.20. Matter of John Z. (Commissioner of Mental Health), 2016 NY Slip Op 01234, 3rd Dept 2-18-16

 

CRIMINAL LAW (CIVIL COMMITMENT JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)/CIVIL COMMITMENT (JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)/DANGEROUS MENTAL DISORDER (CIVIL COMMITMENT JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)

PROSECUTOR’S REFUSAL TO PROVIDE A RACE-NEUTRAL REASON FOR STRIKING A JUROR REQUIRED REVERSAL.

The Third Department reversed defendant’s conviction because the prosecutor refused to give a race-neutral reason for striking a nonwhite juror. The prosecutor argued that no reason need be provided for juror no. 2 because juror no. 2 was the first nonwhite juror to be struck. The Third Department noted that the judge asked for race-neutral reasons after defense counsel objected to a pattern of striking four nonwhite jurors. Therefore, the judge had implicitly concluded defense counsel had made a prima facie showing of discrimination. At that point the prosecutor was obligated to provide race-neutral reasons for striking all four nonwhite jurors, including juror no. 2:

 

“The purpose of the Batson rule is to eliminate discrimination, not minimize it” … . Accordingly, because “[t]he exclusion of any [nonwhite prospective jurors] solely because of their race is constitutionally forbidden” … , a defendant asserting a Batson challenge need not show a pattern of discrimination. “Although as part of their prima facie case parties often rely on numbers to show a pattern of strikes against a particular group of jurors, a prima facie case may be made based on the peremptory challenge of a single juror that gives rise to an inference of discrimination” … .

Here, County Court implicitly concluded that defendant had made a prima facie showing of discrimination as to all four of the jurors in question, and the burden then shifted to the People to provide race-neutral explanations for all four — not just three — of the nonwhite prospective jurors against whom the People asserted peremptory challenges. Given the People’s failure to provide — and County Court’s failure to require — such an explanation as to all four prospective jurors, defendant is entitled to a new trial. People v Jones, 2016 NY Slip Op 01212, 3rd Dept 2-18-16

 

CRIMINAL LAW (PROSECUTOR’S REFUSAL TO PROVIDE A RACE-NEUTRAL REASON FOR STRIKING A JUROR REQUIRED REVERSAL)/JURORS (BATSON CHALLENGE, PROSECUTOR’S FAILURE TO PROVIDE A RACE-NEUTRAL REASON REQUIRED REVERSAL)/BATSON CHALLENGE (PROSECUTOR’S REFUSAL TO PROVIDE A RACE-NEUTRAL REASON REQUIRED REVERSAL)

FITNESS INSTRUCTOR NOT AN EMPLOYEE.

The Third Department determined claimant, a fitness instructor at a senior living facility (Classic Riverdale), was not an employee, and was not, therefore, entitled to unemployment insurance benefits:

 

After learning from a client that Classic Riverdale was seeking an exercise instructor, claimant contacted the facility’s executive director and offered his services. Claimant and the director negotiated a flat fee for each class and set a schedule for the classes. Classic Riverdale did not provide any training or require claimant to wear a uniform. He was not required to punch in or out on the employee time clock, did not use the employee facilities, such as the locker room or cafeteria, and was not invited to attend employee meetings. Claimant alone determined the content of the classes and method of instruction … . There was no limitation placed on the amount of time that claimant could miss from work and his attendance was not monitored. He was never given a performance evaluation and was not subject to any form of discipline … . Claimant also maintained his own liability insurance … . Notably, in addition to providing classes at the facility, claimant also provided services to other clients and solicited the facility’s residents for private, one-on-one classes without any objection from Classic Riverdale … . Matter of Cohen (Classic Riverdale, Inc.–Commissioner of Labor), 2016 NY Slip Op 01222, 3rd Dept 2-18-16

 

UNEMPLOYMENT INSURANCE (FITNESS INSTRUCTOR NOT AN EMPLOYEE)

OIL-SPILL DAMAGES INVESTIGATOR WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT BENEFITS.

The Third Department determined claimant, who was hired by Guidepost to investigate damages claims relating to an oil spill, was an employee entitled to unemployment insurance benefits:

 

… [T]he record contains substantial evidence that Guidepost exercised the requisite control to establish an employer-employee relationship. Claimant received three days of training on how the written reports of his investigations were to be drafted and was reimbursed for the related travel expenses. Guidepost provided the claims to be investigated to claimant, who worked from home in New York. Claimant used reports filed by Guidepost’s field investigators in Louisiana in evaluating the veracity of the damage claims. Claimant submitted his final written reports to Guidepost, which forwarded them on to its client. Guidepost handled all of the client’s complaints, and the client was not aware of who had actually prepared the report. Claimant and Guidepost entered into a written agreement, pursuant to which claimant was paid a set hourly rate and was required to submit monthly invoices to Guidepost containing a log of times and dates and a detailed description of the work performed. Guidepost agreed to pay all approved business expenses. Guidepost also placed restrictions on claimant’s solicitation of or provision of services to Guidepost’s clients during his employment and for a year following separation and required him to adhere to a code of conduct.  Matter of Zaharuk (Guidepost Solutions LLC–Commissioner of Labor), 2016 NY Slip Op 01028, 3rd Dept 2-11-16

 

UNEMPLOYMENT INSURANCE (OIL-SPILL DAMAGES INVESTIGATOR WAS AN EMPLOYEE)

MUSIC TEACHERS ARE EMPLOYEES, NOT INDEPENDENT CONTRACTORS.

The Third Department determined a business, Eray Inc., which matched students with music teachers, was required to pay unemployment insurance contributions. The court affirmed the Unemployment Insurance Appeal Board’s finding that the musicians were employees, not independent contractors:

 

… [W]here the provision of professional services is involved, the relevant inquiry becomes “whether the purported employer retains overall control of important aspects of the services performed” … . The “overall control” test “has been applied to musicians who ‘do not easily lend themselves to direct supervision or control'” … .

During the period in question, Eray matched students with music instructors based upon its assessment of the students’ needs and the instructors’ qualifications, scheduled the lessons and followed up with both the instructors and the students to ensure that they were matched appropriately. While Eray did not dictate the curriculum or the method of instruction, it rented and provided the space in which the teachers almost exclusively conducted their lessons, equipped the space with chairs, music stands, a piano, a drum set and a collection of music books that could be used during those lessons, billed the students, paid the teachers an agreed-upon portion of the fee collected from each student and fielded student complaints. In addition, Eray required the teachers to submit any scheduling changes to it for its approval and notify it if they were going to be late to a lesson or send a substitute in their stead and, when requested, Eray would arrange for substitute instructors. Furthermore, although Eray maintained that the agreements were not enforced, several of the instructors signed agreements that, among other things, prohibited them from contacting students directly or providing private lessons to their students in the two years following their resignation. Matter of Eray Inc. (Commissioner of Labor), 2016 NY Slip Op 01024, 3rd Dept 2-11-16

 

UNEMPLOYMENT INSURANCE (MUSICIAN/MUSIC TEACHERS ARE EMPLOYEES)

JUDGE IMPOSED RESTITUTION AT SENTENCING WHICH WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE VACATED.

The Third Department vacated defendant’s sentence because restitution was imposed but was not part of the plea agreement. Defendant should have been given the opportunity to withdraw his plea:

 

Inasmuch as the record fails to establish that payment of restitution was part of defendant’s plea agreement, we must agree that County Court erred in imposing the enhanced sentence without giving defendant an opportunity to withdraw his plea … . Accordingly, defendant’s sentence must be vacated and the matter remitted to County Court to either impose the agreed-upon sentence or give defendant the option of withdrawing his plea before imposing the enhanced sentence … . People v Brasmeister, 2016 NY Slip Op 01019, 3rd Dept 2-11-16

 

CRIMINAL LAW (IMPOSING RESTITUTION AT SENTENCING WHICH WAS NOT PART OF THE PLEA AGREEMENT REQUIRED VACATION OF THE SENTENCE)/RESTITUTION (IMPOSING RESTITUTION AT SENTENCING WHICH WAS NOT PART OF THE PLEA AGREEMENT REQUIRED VACATION OF THE SENTENCE)/SENTENCING  (IMPOSING RESTITUTION AT SENTENCING WHICH WAS NOT PART OF THE PLEA AGREEMENT REQUIRED VACATION OF THE SENTENCE)

DEFENDANT ENTITLED TO BE HEARD ON APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT, DENIAL OF APPLICATION ON THE PAPERS REVERSED.

The Third Department determined denial of defendant’s application for resentencing under the Drug Law Reform Act without allowing defendant to be heard was error:

 

The Drug Law Reform Act of 2009 requires that, upon receipt of an application for resentencing, “the court shall offer an opportunity for a hearing and bring the applicant before it” (L 2004, ch 73, § 23; see CPL 440.46 [3]…). Inasmuch as the record does not reflect that defendant was afforded “an opportunity to be heard on the merits of [his] application,” the order appealed from must be reversed and the matter remitted to County Court so that a new determination can be made on defendant’s application after the proper procedure has been followed … . People v Davis, 2016 NY Slip Op 01006, 3rd Dept 2-11-16

 

CRIMINAL LAW (DENIAL OF APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT REVERSED, DEFENDANT ENTITLED TO BE HEARD)/DRUG LAW REFORM ACT (DENIAL OF APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT REVERSED, DEFENDANT ENTITLED TO BE HEARD)/SENTENCING (DENIAL OF APPLICATION FOR RESENTENCING UNDER DRUG LAW REFORM ACT REVERSED, DEFENDANT ENTITLED TO BE HEARD)

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POLICE DISCIPLINE PROPERLY CONTROLLED BY COLLECTIVE BARGAINING AGREEMENT, DESPITE STATUTORY PROVISION PLACING DISCIPLINE IN THE HANDS OF THE COMMISSIONER.

The Third Department determined that a provision of the Second Class Cities Law specifically allowed the statute to be superseded by subsequent statutes. The Second Class City Law placed police discipline in the hands of the commissioner.  However a subsequently enacted provision of the Civil Services Law (called the Taylor Law) required police discipline to be the subject of a collective bargaining agreement, absent conflicting legislation. The Taylor Law prevailed because of the “planned obsolescence” of the Second Class City Law statute:

 

… [T]he Taylor Law mandates that disciplinary procedures for all public employees be the subject of good faith collective bargaining … . “[Courts] have long recognized the ‘strong and sweeping policy of the State to support collective bargaining under the Taylor Law'” … . Indeed, “the presumption is that all terms and conditions of employment are subject to mandatory bargaining” … . However, because of the “competing policy . . . favoring strong disciplinary authority for those in charge of police forces[, w]here legislation specifically commits police discipline to the discretion of local officials,” the policy favoring collective bargaining will give way to the legislatively established disciplinary procedures … . * * *

… [T]he clear and unambiguous language of Second Class Cities Law § 4 provides the best evidence that the Legislature intended to allow any or all of the provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter … . Accordingly, we conclude that Second Class Cities Law article 9 does not require “that the policy favoring collective bargaining should give way” … . Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 2016 NY Slip Op 00729, 3rd Dept 2-4-16

 

MUNICIPAL LAW (POLICE DISCIPLINE CONTROLLED BY COLLECTIVE BARGAINING, NOT CONFLICTING STATUTE)/UNIONS (POLICE DISCIPLINE CONTROLLED BY COLLECTIVE BARGAINING, NOT CONFLICTING STATUTE)/STATUTES (PLANNED OBSOLESCENCE OF STATUTE ALLOWED IT TO BE SUPERSEDED BY SUBSEQUENT STATUTE)

CLAIMANT PROPERLY COMPENSATED FOR WORK-RELATED STRESS.

The Third Department determined claimant was properly awarded workers’ compensation benefits for work-related stress. The employer argued the stress was related to warning letters about claimant’s performance, which would not be compensable. One of the warning letters was deemed not to have been issued in good faith. And claimant submitted proof her stress-related symptoms appeared before the warning letters were issued. Claimant was a licensed clinical social worker who had been attacked by a client:

 

Workers’ Compensation Law § 2 (7) precludes claims for mental injuries based upon work-related stress “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.” “Whether the employer’s actions constituted a lawful personnel decision undertaken in good faith is a factual issue to be resolved by the Board”  … . * * *

“According deference to the Board’s resolution of witness credibility issues” … , and in light of the evidence that claimant suffers from a mental injury stemming from work-related stress and that she was being treated for the condition prior to the issuance of the warning letters, the Board’s determination that the claim was not barred by Workers’ Compensation Law § 2 (7) is supported by substantial evidence and will not be disturbed … . Further, based upon the foregoing, we find that the Board’s determination that the stress that caused claimant’s injury was greater than that of other similarly situated workers also is supported by substantial evidence … . Matter of Haynes (Catholic Charities), 2016 NY Slip Op 00560, 3rd Dept 1-28-16

WORKERS’ COMPENSATION LAW (AWARD FOR WORK-RELATED STRESS PROPER)/STRESS, WORK-RELATED (WORKERS’ COMPENSATION BENEFITS PROPERLY AWARDED)

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