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Seasonal Residents Properly Deemed “Residents” of a Town for Election Purposes

The Third Department, in a full-fledged opinion by Justice Peters, determined that seasonal residents of a condominium were properly deemed “residents” of the town where the condominium is located for voting purposes under the Election Law. The court noted that, under the Election Law, a voter may have two residences and choose one of them for election purposes. The Election Law requires only that the voter have legitimate, significant and continuing attachments to the residence and there be no “aura of sham:”

The [County Election] Board’s determination upholding the voter registrations at issue constituted presumptive evidence of the … voters’ residence for voting purposes; thus, petitioner was saddled with the weighty burden of proffering sufficient evidence to overcome that presumption (see Election Law § 5-104 [2]…). The Election Law defines “residence” as “that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return” (Election Law § 1-104 [22]…). As the courts of this state have repeatedly explained, the Election Law “does not preclude a person from having two residences and choosing one for election purposes provided he or she has ‘legitimate, significant and continuing attachments’ to that residence” … . “The crucial [factor in the] determination [of] whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence ‘without any aura of sham'” … . Matter of Maas v Gaebel, 2015 NY Slip Op 04353, 3rd Dept 5-21-15

 

Claimant Did Not Demonstrate a Compelling Reason to Close His Business—Unemployment Insurance Benefits Denied

The Third Department determined a business owner who voluntarily closed his business was not entitled to unemployment insurance benefits because a compelling reason for the closure was not demonstrated:

“When a claimant closes an operating business, the issue of whether he or she is qualified to receive benefits turns upon whether there was a compelling reason to close the business” … . Here, claimant testified that, beginning in 2009, his business began to decline and that, between 2009 and 2012, there was a 50% drop-off of catering contracts. The corporation’s tax returns reflect, however, gross receipts of $297,167 in 2009, with a net income of $2,522, gross receipts of $281,397 in 2010, with a net income of $4,997, and gross receipts of $279,755 in 2011, with a net income of $764. Claimant’s individual tax returns reveal that he was paid a moderate salary in each of these three years. At the time he closed the business at the end of August 2012, claimant estimated corporate gross receipts of $220,970 for the year to date, with a net income of $26,620, after payment of claimant’s salary, in a sum that was lower than the prior years, but was not an extreme departure from his prior earnings. Although the decline in business had required claimant to reduce personnel, there was no proof that the business was otherwise unable to meet its financial obligations. Claimant owned the building where he ran the business, and there was no mortgage; the premises were rented to the business for favorable tax treatment. Although claimant testified that, at the time he closed the business he had no bookings for October 2012 to December 2012, he also testified that his business was seasonal and that this was generally a slow time. In our view, the record thus establishes that this was a viable business, and the Board’s decision is supported by substantial evidence … . Matter of O’Connell (Commissioner of Labor), 2015 NY Slip Op 04176, 3rd Dept 5-14-15

 

Alterations to Easement Okay—They Did Not Interfere With the Easement-Holder’s Right of Passage

The Third Department determined the alterations made to an ingress and egress easement along a private road, including the installation of a gate, were not actionable because they did not interfere with the easement holder’s right of passage:

It is well settled that “[t]he extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties” … . Here, the easement specifically granted plaintiff and defendants the right of “ingress and egress and for electric, gas, water, sewer and similar services over, under and along [the] farm road” on the McLean property. Importantly then, “[a] right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his [or her] right . . . is merely a right to pass with the convenience to which he [or she] has been accustomed” … . In the absence of a demonstrated intent to provide otherwise, an easement of ingress and egress may be narrowed, covered, gated or fenced off, “‘so long as the easement holder’s right of passage is not impaired'”… . Boice v Hirschbihl, 2015 NY Slip Op 04191, 3rd Dept 5-14-15

 

Confinement in Special Housing Unit Was Harsh and Excessive Punishment—No Showing Petitioner Was a Threat to Institutional Safety

The Third Department determined petitioner posed no threat to institutional safety and, therefore, his confinement in a special housing unit constituted harsh and excessive punishment:

… [B]ecause neither the charges of which he is guilty nor the evidence presented at the hearing establishes that petitioner’s conduct was a threat to institutional safety and security, we find that the imposition of confinement in the special housing unit is harsh and excessive … . Matter of Kim v Annucci, 2015 NY Slip Op 04178, 3rd Dept 5-14-15

 

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Village’s Opting to Remove Petitioner’s Land from the Land Available for Purchase by New York City to Maintain the City’s Drinking-Water Watershed Was Not a Regulatory Taking

The Third Department determined the village had acted appropriately when it opted to exclude portions of land within the village from New York City’s watershed acquisition program.  Petitioner was attempting to sell an easement for her land to the City.  When the village opted to exclude petitioner’s land from the City’s acquisition program, the petitioner brought an action claiming the village had exceeded its authority by improperly restricting the ownership and transferability of her property. Petitioner further argued that the village’s action constituted a de facto regulatory taking of her property for which she was entitled to compensation:

Through voluntary agreement and accepting DEC [Department of Environmental Conservation] conditions, the City consented not to be a potential purchaser of some upstate property if the local municipalities opted to exclude the property from land acquisition by the City. This was part of a delicate balance designed to protect the watershed and save the City significant money while safeguarding the economic vitality of upstate communities … . It was not an improper attempt by a local municipality to regulate who owns or occupies property … , but, in essence, the withdrawal of one potential purchaser who received a significant benefit. * * *

Where, as here, “the contested [resolution] falls short of eliminating all economically viable uses of the encumbered property, the Court looks to several factors to determine whether a taking occurred, including ‘the [resolution’s] economic effect on the landowner, the extent to which the [resolution] interferes with reasonable investment-backed expectations, and the character of the government action'” … . The resolution’s result was that one potential purchaser — who had not made any offer during the years when an easement on petitioner’s farm could have been purchased — no longer remained a potential purchaser. Petitioner has since found another willing purchaser. The resolution did not hinder the use that was being made of the property as a farming operation. The purpose of the resolution was to protect the Town’s potential for growth and economic sustainability, which was one of the many goals of the various parties involved … and consistent with an overriding purpose of maintaining a safe, ample and relatively inexpensive drinking water supply for the City. Petitioner “did not meet [her] heavy burden of showing that the [resolution] resulted in a regulatory taking”… .  Matter of Nelson v City of New York, 2014 NY Slip Op 03319, 3rd Dept 5-8-14

 

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Former Parishioners Did Not Have Standing to Challenge Sale of Church Property Which Had Been Authorized by Supreme Court Pursuant to the Religious Corporation Law

The Third Department determined former parishioners of a church should not have brought an action for declaratory judgment contesting the church’s (court-ordered) authorization to sell church property pursuant to the Religious Corporation Law.  The proper procedure would have been to bring a motion to intervene pursuant to CPLR 5015 (a).  The  court went on to determine that the parishioners did not have standing to challenge the sale because they were not members of the religious corporation:

Plaintiffs’ action was an impermissible collateral attack on the authorization order. The proper procedure would have been to move to vacate that order pursuant to CPLR 5015, which permits “any interested person” to move for such relief (CPLR 5015 [a]), rather than commencing a second plenary action collaterally attacking an order in a prior action … . …

Additionally, Supreme Court properly dismissed the complaint because plaintiffs lack standing to challenge the sale of the property. Plaintiffs may have been members of the congregation or “ecclesiastical body” of St. Patrick’s, but that does not make them members of the religious corporation … . “Member” is defined for religious corporation purposes as “one having membership rights in a corporation in accordance with the provisions of its certificate of incorporation or by-laws” (N-PCL 102 [a] [9]; see Religious Corporations Law § 2-b [1]). Pursuant to the incorporation documents and bylaws of St. Patrick’s and the relevant statutes, St. Patrick’s is managed by a five-member board of trustees consisting of the diocesan bishop, the vicar general of the diocese, the rector of the church and two laypersons selected by the other trustees (see Religious Corporations Law §§ 90, 91)[FN3]. Religious Corporations Law § 5 “vests the custody and control of a religious corporation’s [*3]real property in the board of trustees” … . As plaintiffs are not members of the religious corporation, they lack standing to challenge decisions concerning the transfer of the corporation’s property … . Citizens for St Patrick’s v Saint Patrick’s Church of W Troy, 2014 NY Slip Op 03314, 3rd Dept 5-8-14

 

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Judge’s Failure to Apply the “Prejudice versus Probative” Balancing Test to Evidence of Uncharged Bad Acts and Crimes, Combined with the Judge’s Failure to Give the Jury Limiting Instructions About How Such Evidence is to Be Considered by Them, Required Reversal of Defendant’s Conviction

The Third Department reversed defendant’s conviction because the judge never ruled on the admissibility of uncharged prior bad acts and crimes by applying the “prejudicial effect versus probative value” Molineux test, and the judge never gave limiting instructions to the jury about the limited applicability of such evidence.  The charged offense was assault by administering alcohol to the victim (defendant’s wife) without her consent.  The prior bad acts and crimes which were entered into evidence included nonconsensual sex, withholding medication and domestic violence:

To be sure, “[p]rior bad acts in domestic violence situations are more likely to be considered relevant and probative evidence because the aggression and bad acts are focused on one particular person, demonstrating the defendant’s intent, motive, identity and absence of mistake” … and, further, may be “relevant to provide background information concerning the context and history of [the] defendant’s relationship with the victim” … . That said, even assuming that all of the uncharged crimes/prior bad acts at issue here, which, as noted previously, included allegations of nonconsensual sex, domestic violence, bullying and the withholding of certain medications from the victim, fell within one or more of the recognized Molineux exceptions … and indeed constituted relevant and probative evidence, the record fails to reflect that County Court balanced the probative value of such evidence against its prejudicial effect. More to the point, even further assuming that our review of the record disclosed evidence of County Court’s implicit finding in this regard …, the record nonetheless reveals that, despite an appropriate request by defense counsel during the course of the charge conference, no appropriate limiting instructions were provided to the jury … . The absence of such instructions clearly impacted the jury’s deliberations — as evidenced by the jury’s inquiry as to whether the coercion charge “encompass[ed] just the use of alcohol or . . . extend[ed] to unwilling sex. People v Elmy, 2014 NY Slip Op 03300, 3rd Dept 5-8-14

 

Cell Phone In Possession of Inmate Met the Definition of “Dangerous Contraband” in the Context of a “Promoting Prison Contraband” Charge

The Third Department, in a full-fledged opinion by Justice Egan, determined that a cell phone constituted “dangerous contraband” within the meaning of “promoting prison contraband in the first degree.”  The testimony of the supervising superintendent about the protections put in place concerning the recording and restrictions on inmate phone calls were sufficient to demonstrate the cell phone met the definition of “dangerous contraband:”

In this regard, the Court of Appeals has instructed that “the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” … . Notably, “the distinction between contraband and dangerous contraband” does not turn upon “whether an item is legal or illegal outside of prison . . . [as] [i]t is obvious that an item, such as a razor, may be perfectly legal outside prison and yet constitute dangerous contraband when introduced into that unpredictable environment” … . Similarly, as our case law makes clear, the item in question need not be inherently dangerous in order to qualify as dangerous contraband. Indeed, although weapons are perhaps the most commonly recognized source of dangerous contraband in a prison setting … , courts have — applying the Finley test — reached the very same conclusion with respect to other items made, obtained or possessed by prison inmates, including illegal quantities of drugs …, a disposable Bic lighter …  and hand-drawn maps or knotted links of wire that could be used to facilitate an escape …. Although the majority in Finley did not expressly address this issue, Judge Pigott opined in his concurrence/dissent that, “[i]f the contraband at issue is not inherently dangerous . . . , the People must present specific, competent proof from which the trier of fact may infer that use of the contraband could potentially create a dangerous situation inside the facility” … . As a cell phone admittedly is not an inherently dangerous item, the question is whether the People adduced sufficient proof to establish the cell phone’s potential to be used in such a pernicious manner as to elevate it to the level of dangerous contraband. People v Green, 2014 NY Slip Op 03303, 3rd Dept 5-8-14

 

Police Officer’s Convictions for “Criminal Diversion” (Obtaining Another’s Prescription Medication), and “Official Misconduct” Not Supported by Legally Sufficient Evidence

The Third Department reversed defendant’s convictions for criminal diversion and official misconduct because the offenses were not supported by legally sufficient evidence.  The defendant, a police officer, was accused of obtaining someone’s prescription drugs in exchange for something of pecuniary value (criminal diversion).  She was also accused of flashing her badge to a pharmacist and asking the pharmacist to hurry up with a prescription drug (official misconduct).  The Third Department determined the “criminal diversion” charge was not supported by evidence the drug involved (a muscle relaxant) was a “prescription medication.”  And, in the absence of evidence the defendant knew that flashing her badge constituted an unauthorized exercise of her official functions, there was not sufficient evidence to support the “official misconduct” charge. People v Barnes, 2014 NY Slip Op 03310, 3rd Dept 5-8-14

 

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Division of Parole’s Mistake Which Resulted in the Incarceration of the Claimant Was Privileged—Claimant’s Action for False Imprisonment Properly Dismissed

The Third Department, in a full-fledged opinion by Justice Peters, determined a mistake made by the Division of Parole, which resulted in claimant’s prosecution and imprisonment for a violation of parole at a time when his parole had been terminated, was privileged.  Therefore, the claimant’s action for false imprisonment was properly dismissed:

To establish a claim of false imprisonment, claimant must demonstrate, among other things, that the confinement was not privileged … . “To that end, it is settled that ‘[a]n otherwise unlawful detention is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction or parole authorities'” … . Here, there is no dispute that claimant’s confinement was pursuant to parole violation warrants that were valid on their face. Yet, according to claimant, because his sentence should have terminated by law on March 10, 2005, the Division acted without jurisdiction when it commenced the April 2005 parole revocation proceeding, revoked his parole and thereafter subjected him to various periods of incarceration.

“‘There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter. The former is privileged, the latter is not'” … .

While the [Division of Parole’s] ….interpretation of Executive Law former § 259-j (3-a) may well have been mistaken, any such “error in judgment neither negates nor defeats defendant’s claim of privilege” … . The statute vested the Division with the authority to grant a termination of sentence under certain described circumstances, and interpreting the provisions that implement such power is a legitimate part of the Division’s function .. . The Division made a reasoned judgment …[which] was neither inconsistent with nor contrary to extant judicial authority … . Thus, at most, the Division “acted in excess of its jurisdiction, not in the complete absence [thereof], and its conduct therefore was privileged”… . Marsh v State of New York, 2014 NY Slip Op 03320, 3rd Dept 5-8-14

 

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