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Statutory Provision that the Gaming Commission “Shall” Render a Determination Within 30 Days After a Hearing Is “Directory” Not “Mandatory”—A Late Determination Will Not Be Annulled Absent Prejudice

The Third Department determined Supreme Court erred when it annulled the suspension of petitioner’s license to train and own horses because the NYS Gaming Commission did not render a determination within 30 days of the hearing as required by Racing, Pari-Mutuel Wagering and Breeding Law 321.  The Third Department determined the 30-day time-limit was not mandatory and petitioner could only seek relief for a violation of section 321 if he could show prejudice related to the delay:

Racing, Pari-Mutuel Wagering and Breeding Law § 321 provides that, when respondent suspends a harness racing participant’s license, the licensee may demand a hearing and, “[w]ithin thirty days after the conclusion of such hearing, [respondent] shall make a final order in writing.” The use of “shall” is not conclusive, however, inasmuch as the statute does not impose any limitation on respondent’s power to act or provide for any consequences for the failure to comply with the time limit … . Nor has petitioner cited any legislative history, and we are not aware of any, suggesting that the 30-day provision in the statute was intended to be mandatory. Rather, at the time this provision was enacted, similar language in the Alcoholic Beverage Control Law had been judicially determined to be directory … , yet the Legislature imposed no additional language limiting respondent’s power to act when it later enacted Racing, Pari-Mutuel Wagering and Breeding Law § 321.

Where, as here, an agency fails to follow a procedural provision that is merely directory, the subsequent determination should only be judicially annulled when the challenger can “show that substantial prejudice resulted from the agency’s noncompliance” … . Matter of Pena v New York State Gaming Commn., 2015 NY Slip Op 02821, 3rd Dept 4-2-15

 

Jury Instruction Reversed Burden of Proof—New Trial Ordered

The Third Department determined defendant’s conviction must be reversed because the trial court’s instruction to the jury reversed the burden of proof.  The defendant was accused of killing a pit bull in violation of Agriculture and Markets Law  353(a)(1):

….[D]efendant contends that County Court erred in rendering a supplemental jury instruction that effectively shifted the burden of proof to defendant to prove his own innocence. While defendant failed to preserve this issue through an appropriate objection, given the nature of the challenged instruction, we exercise our interest of justice jurisdiction to take corrective action … . Without question, the People bear the burden of proving a defendant’s guilt beyond a reasonable doubt, and County Court so charged the jury twice before giving the instruction at issue. After receiving a further note from the jury requesting definitions for certain terms, including “depraved” and “sadistic,” the court determined that it would “be beneficial . . . to once again go over the definition of aggravated cruelty.” In doing so, however, the court advised the jury: “Thus, if you find beyond a reasonable doubt that the defendant did not engage in conduct which caused the animal extreme pain or which was not done or carried out in an especially depraved or sadistic manner, you must find the defendant not guilty.” This charge impermissibly shifted the burden of proof by suggesting that defendant needed to prove his innocence beyond a reasonable doubt. Compounding the problem, the charge was rendered shortly before the jury rendered the guilty verdict. In our view, this was a fundamental error, requiring the reversal of the judgment and a new trial … . People v Facey, 2015 NY Slip Op 02810, 3rd Dept 4-2-15

 

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Forcing Defendant to Go to Trial When His Expert on the Intoxication Defense Was Not Available Rendered Defendant’s Guilty Plea Involuntary and Coerced

The Third Department vacated defendant’s plea, finding that it was involuntary and coerced.  Defendant admitted shooting and killing his brother, but it was clear that defendant was highly intoxicated at the time of the offense.  County Court set the matter down for trial at a time the defendant’s expert on the intoxication defense was not available, after the court concluded there was no merit to the defense. During the plea colloquy the defendant answered “to the best of my recollection” when asked whether he had caused the death of his brother. Under these circumstances the waiver of appeal and the failure to preserve the error did not preclude review:

…[D]efendant’s challenge to the voluntariness of his plea survives his uncontested waiver of the right to appeal but is unpreserved for our review in the absence of a motion to withdraw his plea … . That said, we nonetheless are persuaded that the narrow exception to the preservation requirement was triggered here, as defendant’s qualified response — “[t]o the best of my recollection” — to County Court’s key question during the course of the plea allocution cast doubt upon his guilt and/or otherwise called into question the voluntariness of his plea, thereby obligating County Court to undertake further inquiry prior to accepting defendant’s plea … — particularly in view of the transcripts of the 911 call, wherein defendant clearly indicated that he had been drinking on the day of the shooting, and defendant’s Town Court arraignment, wherein the Town Judge expressed concerns regarding defendant’s ability to understand the charges against him due to his apparent level of intoxication. We also find merit to defendant’s claim that his plea was coerced. As noted previously, defendant entered his plea of guilty in response to the prospect of proceeding to trial within a matter of days and without an expert witness, and such plea was entered on the heels of County Court’s questionable, pretrial analysis as to the viability of defendant’s asserted intoxication defense. Under these circumstances, we are unable to conclude that defendant’s guilty plea was knowing, intelligent and voluntary. People v Lang, 2015 NY Slip Op 02809, 3rd Dept 4-2-15

 

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Conditions of Probation Which Allowed Release of Defendant’s Pre-Sentence Investigation Report Illegal

The Third Department, in a full-fledged opinion by Justice Devine, determined two provisions of defendant’s sentence to probation which purported to allow release of defendant’s Pre-Sentence Investigation report (PSI) were illegal and must be vacated.  The court noted that the illegality of a sentence which is apparent from the record survives a waiver of appeal and the absence of an objection:

CPL 390.50 (1) provides that a PSI “is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court” (emphasis added). The court that is referenced in CPL 390.50 (1) is the sentencing court … . While the People argue that the challenged conditions constitute specific authorization of disclosure by the sentencing court, condition 17, on its face, is a blanket delegation to the Probation Department to authorize disclosure of the PSI to treatment providers if the department deems the request appropriate. In our view, such a general authorization of disclosure by the Probation Department is contrary to both the statutory mandate of specific authorization and this Court’s direction that only the sentencing court can grant that authorization.

Moreover, the requirement in condition 32 that defendant consent to disclosure of the PSI is similarly contrary to law. Under CPL 390.50, criminal defendants themselves are not entitled to their PSI in collateral proceedings, absent statutory authority, except under limited conditions, i.e., upon a proper factual showing of need … . Even when a defendant has demonstrated a need for disclosure, he or she is never “automatically entitled to an unredacted copy of [the PSI]” … . Rather, in light of the requirement of specific authorization and given the sentencing court’s discretion to except portions of a PSI from disclosure, the court must make a determination whether redaction is appropriate … . That is, under the statute, a defendant cannot demand or “consent” to release of the entire, unredacted PSI — only the sentencing court can permit the release of the PSI after the party requesting it has shown that the information cannot be obtained in any other way, and only after the court has considered whether redaction is necessary. People v Fishel, 2015 NY Slip Op 02808, 3rd Dept 4-2-15

 

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Elements of Intentional Infliction of Emotional Distress and Prima Facie Tort Described

In finding the counterclaims for intentional infliction of emotional distress and prima facie tort were properly dismissed, the Third Department described the elements of those causes of action:

…[W]ith respect to the counterclaim for intentional infliction of emotional distress [,] … [defendant] was required to plead “extreme and outrageous conduct, the intentional or reckless nature of such conduct, a causal relationship between the conduct and the resulting injury, and severe emotional distress” … . Notably, the alleged conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and [be] utterly intolerable in a civilized community” … . Here, [defendant] alleged that, during the course of their professional relationship, plaintiff sent unwanted gifts and letters, engaged in suggestive conversations and made threats of future conduct toward him. Even reading the allegations liberally and accepting them as true, we find that the alleged conduct, while undeniably inappropriate, did not rise to the level of being “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” … . …

As for [defendant’s] counterclaim for prima facie tort, there can be no recovery under this theory “unless malevolence is the sole motive for [plaintiff’s] otherwise lawful act or, in [other words], unless [plaintiff] acts from disinterested malevolence” … . Stated another way, the act “must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” … . Hyman v Schwartz, 2015 NY Slip Op 02819, 3rd Dept 4-2-15

 

Graphic Designer Properly Found to Be an Employee

The Third Department affirmed the Unemployment Insurance Appeal Board’s conclusion that a graphic designer was an employee, not an independent contractor:

…[I]t is well settled that the existence of an employment relationship is a factual issue for the Board to resolve and its determination will not be disturbed if supported by substantial evidence … . “The determination rests not on one single factor, but consideration is given to whether control was exercised over the results or the means used to achieve those results, with the latter factor deemed more important” … .

Here, claimant responded to a website posting and, after being interviewed, was selected by Propoint to work on client projects at a mutually agreed pay rate of $28 per hour. He was paid every two weeks regardless of whether Propoint received payment from the client. Although there were no set working hours, claimant performed most of his work at the employer’s premises, where he was provided with a computer, software and related items, and he was required to turn in daily time cards. Propoint did not provide claimant with any leave time or other benefits, withhold taxes from his paychecks or prohibit him from working for others, and it required him to sign an independent contractor agreement. Propoint, however, retained the right to review claimant’s work product and direct him to make changes. Moreover, the confidentiality provisions of the independent contractor agreement precluded claimant from including client projects in his personal portfolio. Inasmuch as the foregoing demonstrates that Propoint retained control over both the means and the results of claimant’s work, substantial evidence supports the Board’s finding of an employment relationship… . Matter of Ramirez (Propoint Graphics LLC–Commissioner of Labor), 2015 NY Slip Op 02825, 3rd Dept 4-2-15

 

Failure to Comply With Terms of Suspended Judgment Justified Termination of Parental Rights

The Third Department determined mother’s failure to comply with the terms of a suspended judgment (permanent neglect) justified termination of her parental rights.  There was evidence the child was thriving in foster care:

It is well settled that a suspended judgment gives a parent who is found to have permanently neglected his or her child “a brief grace period within which to become a fit parent with whom the child can be safely reunited” … . Where the parent’s failure to comply with the terms and conditions of a suspended judgment is established by a preponderance of the evidence, such judgment may be revoked and parental rights may be terminated … . * * *

…”[W]hile respondent’s ‘failure to comply with the terms and conditions of the suspended judgment does not compel the termination of her parental rights, [it] is strong evidence that termination is, in fact, in the best interests of the [child]'”… . Matter of Cody D. (Brittiany F.), 2015 NY Slip Op 02811, 3rd Dept 4-2-15

 

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Father, Who Had Not Been Informed of the Birth of His Child Until After the Child Was Adopted, Was Properly Awarded Custody of the Child

The Third Department affirmed Family Court’s rulings that: the father’s consent to the adoption of his child was required; the father had preserved his right to contest the adoption of his child; and custody of the child is awarded to the father.  Mother put the child up for adoption and the child was adopted before mother informed father she had given birth to his child.  The Third Department heard the appeal despite problems with the notice of appeal and the absence of the Family Court hearing transcript. No one contested the factual findings made by Family Court:

“The father of a child born out-of-wedlock is entitled to full protection of his relationship with the child, including the right to deny consent to an adoption at birth by strangers, only if he ‘assert[s] his interest promptly . . . [and] manifest[s] his ability and willingness to assume custody of the child'” … . Evaluation of the father’s conduct includes, among other things, factors such as “his public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child” … . Family Court’s many factual findings included that: the father had paid up to 90% of the household expenses when the mother resided with him; the mother was not visibly pregnant while living with him; the mother did not know she was pregnant until she had moved to New York City; FIA [the adoption agency] made no reasonable effort to notify the father; the father was first notified about the pregnancy and child on May 6, 2014; he was unable to contribute to pregnancy expenses through no fault of his own because he had no knowledge thereof; the mother was urged by FIA to decline to identify the father of her child; and, once the father became aware of the child, he filed a paternity petition within about 10 weeks and then a custody petition and he did so despite difficult logistics regarding filing (he lived in South Carolina, the child had been born in New York City, the adoption was pending in Albany County), as well as a lack of legal representation by counsel. The father submitted an affidavit stating that, after learning of some uncovered costs of the birth, he was making arrangements to pay those costs. He had a job and residence, and was able to take immediate custody of the child. In light of the uncontested facts found by Family Court, as well as the other relevant proof in the record, we are unpersuaded that Family Court erred in determining that the father adequately preserved his right to contest the adoption of his child … . Matter of Isabella TT. (Dalton C.), 2015 NY Slip Op 02838, 3rd Dept 4-2-15

 

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Summary Judgment Properly Granted to Hospital—Criteria for Hospital Liability for Treatment by a Non-Employee Explained

The Third Department determined summary judgment was properly granted to the hospital (AOMC) because plaintiff (Hoad) was treated by her private physician (Dolkart) and there was no indication hospital staff was negligent in following the doctor’s orders:

…[G]enerally, a hospital is not liable for the negligence of independent physicians except on a theory of ostensible or apparent agency … . Put differently, a hospital may be liable “where the hospital’s words or conduct communicated to a third-party patient give rise to the appearance and belief that the agent-independent physician possesses authority to act on behalf of the hospital” … . As the proponent of summary judgment, AOMC “bore the initial burden of establishing that [Hoad] sought care from a specific physician rather than from [AOMC] generally” … . Here, AOMC’s Vice President of Medical Affairs submitted an affidavit wherein he explained that Dolkart was not an employee, but a tenant with admitting privileges at AOMC. The record confirms that when Hoad was transferred from the emergency room, she consented to a transfer into Dolkart’s care at AOMC, not to AOMC generally. In response, no facts or admissible evidence were presented to establish that Hoad reasonably believed that Dolkart was AOMC’s employee. We therefore discern no basis for imposing liability based upon a theory of ostensible agency … .

We further find no basis for the infant’s claims against AOMC based on the actions of its professional staff. Generally, a hospital is insulated from liability “when its professional staff follows the orders of private physicians selected by the patient” … . An exception to this general rule exists “where the hospital staff knows that the doctor’s orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders” … . Here, AOMC met its burden through the submission of an affirmation by … an obstetrician. Hoad v Dolkart, 2015 NY Slip Op 02831, 3rd Dept 4-2-15

 

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Defense Counsel Took a Position Adverse to the Defendant’s—Sentence Vacated

The Third Department determined the defendant’s sentence must be vacated because defense counsel took a position adverse to the defendant re: the defendant’s motion to withdraw his plea:

“It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea”… . While defense counsel need not support a pro se motion to withdraw a plea, counsel may not become a witness against his or her client …, make remarks that “affirmatively undermine” a defendant’s arguments …, or otherwise “take a position that is adverse to the defendant” … . Here, when asked to respond to defendant’s pro se motion, counsel advised that, in his opinion, “[County] Court thoroughly explained everything to him . . ., [defendant had] no questions concerning the plea” and that there was no way that he could see that defendant “pleaded without knowing what he was pleading to.” In our view, because counsel’s opinion was adverse to defendant, a conflict of interest arose and County Court should have assigned a new attorney to represent defendant … . People v Prater,2015 NY Slip Op 02806, 3rd Dept 4-2-15

 

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