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Hearsay Alone Will Not Support Revocation of Probation/Failure to Pay Restitution Will Not Support Revocation of Probation If Due to an Inability to Pay

In reversing the judgment revoking defendant’s probation, the Third Department noted that hearsay alone cannot be the basis for revocation and failure to pay restitution will only support revocation if defendant has the ability to pay:

It is settled that, “in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay” … . “If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority” … . If, on the other hand, “the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment” … .

Here, there was neither an adequate inquiry into defendant’s ability to pay nor a determination that his failure to pay was willful … . Accordingly, the matter must be remitted for further proceedings to determine whether defendant’s failure to make the required monthly restitution payments was willful and, if so, whether such failure, standing alone, serves as a valid basis for revocation of his probation and the imposition of a sentence of incarceration … . People v Songa, 2015 NY Slip Op 07704, 3rd Dept 10-22-15

 

Broken Sentence Promise Required Vacatur of the Guilty Plea

The Third Department determined defendant’s guilty plea was induced by County Court’s promise to impose a sentence of shock incarceration. At sentencing, County Court refused to order shock incarceration. Because the plea was induced by the broken promise, the plea was not knowing and voluntary. The fact that neither the People nor County Court could guarantee defendant’s participation in the shock incarceration program was deemed irrelevant:

We start with the principle that a trial court always “retains discretion in fixing an appropriate sentence up until the time of sentencing” … . However, when the court wishes to depart from a promised sentence, it must either honor the promise or give the defendant the opportunity to withdraw the guilty plea … . Accordingly, “[a] guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … .

Here, prior to defendant’s guilty plea, County Court indicated its belief that defendant was eligible for shock incarceration and then unequivocally promised that it “would order him into it.” When defendant specifically asked if shock incarceration was guaranteed, the court stated that it “would order it absolutely” and that a failure on the part of prison authorities to admit him would “defy an order of the [c]ourt.” Furthermore, defense counsel stated that he was recommending that defendant accept the plea agreement “especially with a shock commitment.” Thus, regardless of the fact that “neither County Court nor the People possessed the authority to guarantee [defendant’s] participation” in the shock incarceration program … , the record reflects that defendant, in accepting the plea, relied upon County Court’s promise to do exactly that. Consequently, we find that defendant’s plea was not knowing, voluntary and intelligent, and that, because County Court’s promise to defendant cannot be honored as a matter of law, he is entitled to vacatur of his guilty plea … . People v Muhammad, 2015 NY Slip Op 07702, 3rd Dept 10-22-15

 

Where There Is Permanent Partial Disability, the Benefits Are Calculated Based Upon the Difference Between the Pre-Disability Earnings and the Actual Earnings During the Period of Disability

The Third Department determined the Board correctly calculated the benefits for a nurse who could no longer work as a nurse due to an allergic reaction to hand sanitizer (permanent partial disability). She found work as a part-time cashier at $8 an hour. She had earned over $2000 per week as a nurse. The Board awarded her benefits of $600 per week for 500 weeks. The Third Department held the Board correctly used the difference between her nursing salary and her earnings as a cashier earnings during the period of disability as the basis for the award. The court explained the analytical criteria:

Workers’ Compensation Law § 15 (3) (w) provides that the compensation rate for injured employees who have permanent partial disabilities that are not subject to schedule awards is based upon “the difference between the injured employee’s average weekly wages and his or her wage-earning capacity thereafter in the same employment or otherwise” … . Workers’ Compensation Law § 15 (5-a) further provides that the wage- earning capacity of an injured employee with a partial disability “shall be determined by his [or her] actual earnings” while disabled … . Notably, the Court of Appeals has recognized that “where actual earnings during the period of the disability are established, wage[-]earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period” … .

Vocational and functional considerations, such as a claimant’s age, education, training, experience, restrictions and related factors, are appropriately taken into account with respect to loss of wage-earning capacity only as they are relevant to the duration of a claimant’s permanent partial disability benefits … . Matter of Baczuk v Good Samaritan Hosp., 2015 NY Slip Op 07313, 3rd Dept 10-8-15

 

Sales Rep Who Worked from Home Was an Employee

The Third Department upheld the board’s determination that claimant, who worked from home as a sales representative for DaVinci, was an employee entitled to benefits:

Here, claimant knew DaVinci’s principal through prior business dealings and obtained the job after submitting a resume, but did not go through a formal hiring procedure. Through negotiation, the principal agreed to pay her $4,000 per month, plus health insurance, and to reimburse her for business-related expenses. Her compensation was initially supposed to be a draw on commission, but turned out to be a salary that she was paid every other week regardless of sales. Although claimant worked from home, she provided the principal with weekly activity reports, maintained regular contact by phone and email, and received specific instructions on products, pricing, delivery and clients. In addition, claimant contacted clients who she had dealings with in the past, but also claimant followed up on leads directed to her by the principal and met with him at conventions and product demonstrations. Notably, the principal provided claimant with a three dimensional television and other equipment needed to conduct her sales activities, as well as training on how to operate the equipment. In view of the foregoing, and notwithstanding the evidence that would support a contrary conclusion, substantial evidence supports the Board’s finding that an employment relationship existed between claimant and DaVinci… . Matter of Gluck (Davinci 3D Corp.–Commissioner of Labor), 2015 NY Slip Op 07320, 3rd Dept 10-8-15

 

Slip and Fall on Ice Not an “Accident” Within Meaning of Retirement and Social Security Law

The Third Department confirmed the comptroller’s finding that petitioner, who worked for a town public safety department, was not entitled to enhanced disability benefits based upon a slip and fall on ice.  The incident did not constitute an “accident” within the meaning of the Retirement and Social Security Law:

As defined for purposes of the Retirement and Social Security Law, an unexpected and unfortunate incident does not constitute an accident, so as to support an award of benefits, “where the injury results from an expected or foreseeable event arising during the performance of routine employment duties'” … . Significantly, the burden is on the party seeking benefits to establish that the incident causing his or her injury was an accident … .

Here, petitioner testified that the night before the incident there was an ice storm, and he left for work early the following morning to allow him time to navigate the icy road conditions. He stated that he spoke to his supervisor while en route and arrived in the parking lot about 10 minutes prior to his regularly scheduled shift. As he exited his vehicle, he took a few steps and then slipped and fell in the parking lot. While he was on the ground, he saw that he was lying on ice, and water was running down the middle. Based upon petitioner’s testimony describing the occurrence and his awareness of the hazardous conditions created by the ice storm, he should have reasonably anticipated that the parking lot would be slippery when he exited his vehicle. Accordingly, as the precipitating event was entirely foreseeable, substantial evidence supports the Comptroller’s finding that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law and, thus, that petitioner was not entitled to enhanced benefits… . Matter of Begley v DiNapoli, 2015 NY Slip Op 07323, 3rd Dept 10-8-15

 

Corrections Officer Not Entitled to Performance of Duty Disability Benefits Based Upon Injury Stemming from Aiding an Inmate Who Was Having a Seizure

The Third Department determined a corrections officer was not entitled to “performance of duty” disability benefits based upon injury aiding an inmate who had a seizure. The court found that the “performance of duty” disability provision pertained only to injury caused by a violent inmate:

Retirement and Social Security Law § 507-b (a) provides for performance of duty disability retirement benefits to correction officers employed by the Department of Corrections and Community Supervision who are unable to perform their job duties “as the natural and proximate result of an injury, sustained in the performance or discharge of [their] duties by, or as a natural and proximate result of, an act of an inmate.” The statute does not specifically define an “act of an inmate.” The legislative history, however, reveals that “the statute was clearly intended to compensate correction officers who, because of the risks created by their ‘daily contact with certain persons who are dangerous [and] profoundly antisocial’ . . . become permanently disabled” … . In accordance with this intent, courts have construed the language to require that the injuries be caused by direct interaction with an inmate in order to qualify for benefits under the statute … .

Petitioner contends that she had direct interaction with the inmate while she was lowering him to the floor during his seizure. However, in analogous circumstances where a correction officer was injured while assisting an incapacitated inmate during a medical emergency, we held that the “inmate was not engaged in any act that was a proximate cause of petitioner’s. . . injury” (Matter of Esposito v Hevesi, 30 AD3d 667, 668 [2006]). Given the absence of any affirmative act on the part of the inmate here, we perceive no meaningful distinction to be drawn between this case and Matter of Esposito v Hevesi (supra) … . Matter of Laurino v DiNapoli, 2015 NY Slip Op 07327, 3rd Dept 10-8-15

 

Hearing Officer’s Failure to Ascertain Why a Witness Called by the Inmate Refused to Testify Required Annulment of the Disciplinary Determination

The Third Department determined the inmate-petitioner’s disciplinary determination must be annulled because the inmate was effectively denied his right to call a witness:

… [T]he determination must be annulled because petitioner was denied his right to call a witness … . After petitioner requested that his cellmate at the time of the cell search be called to testify, the Hearing Officer sent two correction officers to retrieve him; the officers returned and merely reported that the prospective witness had refused to testify because “he didn’t want to come out.” One of the officers signed a witness refusal to testify form that provided no reason for the refusal and indicated that the prospective witness had refused to sign the form. As the Hearing Officer made no attempt to verify the witness’s refusal or ascertain his reasons for refusing to testify, despite petitioner’s repeated requests, petitioner’s right to call witnesses was violated … . Matter of Figueroa v Prack, 2015 NY Slip Op 06846, 3rd Dept 9-17-15

 

Claimant, Who Worked from Her Home Pursuant to a Consulting Agreement, Was an Employee, Not an Independent Contractor

The Third Department determined claimant, who worked from her whom pursuant to a consulting agreement with Source Interlink Media (SIM), was an employee entitled to unemployment insurance benefits:

“Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . “While no single factor is determinative, control over the results produced or the means used to achieve those results are pertinent considerations, with the latter being more important” … .

Here, the consulting agreement indicates that SIM retained the services of claimant and set her hourly rate of pay. Further, claimant’s wages were reported on an IRS 1099 tax form with SIM identified as the wage payer. Although claimant generally worked from home, she was required to work at [the] office every Friday from 9:00 a.m. to 5:00 p.m. On Fridays, she was provided a work space, computer, telephone and office supplies. If claimant was going to be late or absent, she was expected to inform an executive assistant at the office. She planned annual meetings, parties and boat shows and was reimbursed for her travel expenses. Her other duties included writing press releases, but she could not distribute the releases until her supervisor had reviewed and edited them. If claimant missed a deadline to complete an assignment, her supervisor could terminate the consulting agreement. Matter of Morris (Commissioner of Labor), 2015 NY Slip Op 06741, 2nd Dept 9-3-15

 

Claimant Was an Employee of an Outfit Which Advertises for Security Guards on Craigslist

The Third Department determined claimant was an employee of Precinct, which advertises for security guards on Craigslist:

Precinct places advertisements on Craigslist seeking security guards, although we note that claimant was referred to Precinct by another security guard. Precinct interviews applicants about their experience and verifies that the applicants are licensed as security guards in New York. As to claimant, he was assigned by Precinct to a hotel. Precinct negotiated with the hotel in setting claimant’s rate of pay. Precinct billed the hotel based upon the negotiated hourly rate and paid claimant after subtracting one third of claimant’s pay as a commission. If claimant could not report to work on a certain day, he was required to inform Precinct, and claimant could not find his own replacement. Matter of Lobban (Commissioner of Labor), 2015 NY Slip Op 06746, 2nd Dept 9-3-15

 

Claimant, Who Worked Pursuant to a Consulting Agreement, Was Not an Employee

The Third Department determined claimant, who worked pursuant to a consulting agreement with two companies, was not an employee:

Tomen America Inc. was eliminated when Toyota negotiated to purchase assets of Tomen and acquire many of its employees. Claimant negotiated and drafted an agreement with both Tomen and Toyota whereby he served as a consultant for both companies, during set periods, to provide post-integration support in human resource matters with regard to the Tomen employees being assimilated by Toyota. As a consultant with Toyota, claimant worked three to five days a month and set his own schedule. He was not required to report to any supervisor, was not given any direction by anyone, did not submit his work for review, did not participate in regular human resource meetings and was issued an identification badge indicating that he was a contractor. Claimant submitted a monthly invoice for an agreed-upon payment, which, pursuant to the agreement drafted by claimant, withheld no taxes. Matter of Farley (Commissioner of Labor), 2015 NY Slip Op 06747, 2nd Dept. 9-3-15

 

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