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State Did Not Rebut Statutory Presumption Corrections Officer’s Heart Condition Was Linked to His Work

The Third Department determined petitioner, a corrections officer, should have been awarded performance of duty disability retirement benefits.  The state did not rebut the statutory presumption that petitioner's heart condition was linked to his job:

… Retirement and Social Security Law § 607-d … provides that performance of duty disability retirement benefits shall be awarded to correction officers who become disabled by “any condition of impairment of health caused by diseases of the heart” where such disability occurs while they are employed. Notably, the statute contains a presumption that the impairment “was incurred in the performance and discharge of duty, unless the contrary can be proven by competent evidence” (Retirement and Social Security Law § 607-d). To successfully rebut this statutory presumption, it must be demonstrated through expert proof that the applicant's cardiac condition was caused by cardiac risk factors other than the applicant's employment … . Matter of Park v DiNapoli, 2014 NY Slip Op 098075, 3rd Dept 12-31-14


County Has Power to Amend Tax Maps Without Notice and a Hearing/Tax Maps Merely Identify Property and Do Not Determine Ownership/Any Dispute About Ownership Must Be Remedied by an Action to Quiet Title

The Third Department determined the county had the power to amend tax maps without notice and a hearing.  Here the director of real property tax services amended a tax map to list the Steger Trust as the current owner of a 25 acre lot previously listed as the petitioner's property. The Third Department explained the county's powers in this regard, noted that a tax map merely identifies property, does not determine ownership and an action to quiet title is the appropriate remedy:

The County correctly asserts that the Director of Real Property Tax Services has the statutory authority to amend tax maps and to provide information about such amendments to the Town's assessor. Counties are required to prepare and maintain tax maps for each city and town therein, and it is the duty of the assessors to use such maps in assessment administration (see RPTL 503 [1] [a]; 1532 [1] [a]). As part of this responsibility, county directors of real property tax services are required to make “such changes from year to year upon such tax maps as may be necessary to maintain the maps in current condition” (RPTL 503 [2]; see 20 NYCRR 8189.14 [a] [7]; [c] [8]; 8189.16 [b]), and to advise assessors on the preparation and maintenance of assessment rolls and property record cards, among other things (see RPTL 1532 [1] [c]). Based on this authority, the County properly amended its tax map and provided the updated information to the assessor listing the Steger Trust as the current reputed owner.

Also, contrary to petitioners' claim, the County did not determine that they do not own the parcel. Rather, the listing of the reputed owner on the tax map is only for the purpose of identifying the assessed property … . Likewise, because title to the property is not determined by the tax map, petitioners have failed to identify any protected property interest giving rise to procedural due process protection … . Any ongoing dispute between petitioners and the Steger Trust should be resolved in an action to quiet title pursuant to RPAPL [Real Property Actions and Proceedings Law] article 15… . Matter of Carpentier v County of Sullivan, 2014 NY Slip Op 09083, 3rd Dept 12-31-14


Actual Income Is Best Measure of Value of Income-Producing Property/Amount of Mortgage on Property Does Not Necessarily Fairly Reflect Value/Assessment Awarded Can Not Be Lower than that Requested in Article 7 Petition

The Third Department determined petitioner was entitled to a lower assessment of petitioner's property, which included a hotel. However, the Third Department held that the assessment could not be lower than that requested in the Article 7 petition (Supreme Court had imposed a lower assessment than that requested in the petition based upon the trial evidence). The Third Department noted that actual income is the best indicator of income-producing property and the amount of the mortgage on the property is not necessarily a fair measure of value. The relevant law was explained:

It is undisputed that petitioner met its initial burden to rebut the presumptive validity of the tax assessments and, accordingly, Supreme Court was required to “weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” … . “Where, as here, conflicting expert evidence is presented, we defer to the trial court's resolution of credibility issues, and consider 'whether the court's determination of the fair market value of the subject property is supported by or against the weight of the evidence'” … . Under settled law with respect to income-producing property, “actual income is the best indicator of value” … . * * *

While a court in determining fair market value may consider evidence of loans advanced on property during or near a particular tax status date when reviewing an assessment proceeding, such evidence standing alone is not entitled to [the] 'greatest weight' because the reasons behind the terms and amount of the loan may be uncertain and unrelated to market values” … . The mortgage was collateralized by land, buildings, furniture and equipment, with a limited personal guarantee, and, under the prevailing circumstances, did not necessarily fairly reflect the value of the property.

… We have previously stated that, “in areas outside New York City, RPTL 720 (1) (b) prohibits tax reductions beyond those requested in the petitions” … . * * * We are unpersuaded by petitioner's argument that it should be permitted to essentially eviscerate this statutory provision via a motion to amend its pleadings made after there has been a trial and decision on the merits of the petitions. Matter of Village Sq of Penna Inc v Board of Assessment Review of the Town of Colonie, 2014 NY Slip OP 09080, 3rd Dept 12-31-14

 

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At Least Some of the Information In a Report Prepared for the Town by Outside Counsel May Be Subject to Disclosure Because the Attorney-Client Privilege Was Waived to the Extent the Contents of the Report Were Described at a Public Hearing

The Third Department determined that a report prepared for the town by outside counsel was protected from disclosure by the attorney-client privilege.  However that privilege may have been waived to the extent the contents of the report were described at a public hearing:

“Under FOIL, an agency need not disclose documents 'specifically exempted from disclosure by state or federal statute,'” such as those protected by attorney-client privilege (…Public Officers Law § 87 [2] [a]; see CPLR 3101 [b], [c]; 4503 [a] [1]…). Petitioners do not, in fact, dispute that the report was privileged when it was prepared. They instead contend that the privilege was waived when the contents of the report were later disclosed at various Town Board meetings. Accordingly, it was incumbent upon respondents to demonstrate that the privilege had not been waived and that the report remained exempt from disclosure … .

…”[A] client who voluntarily testifies to a privileged matter, who publicly discloses such matter or who permits his [or her] attorney to testify regarding the matter is deemed to have impliedly waived the attorney-client privilege” … . In that regard, outside counsel appeared at a … public meeting and made an extensive oral presentation — apparently at the Town Board's behest — in which counsel set forth his legal analysis of the zoning issues involved. To the extent that the oral presentation parrots the analysis set forth in the report, it may well constitute a waiver of the privilege protecting the contents of the report. … Matter of Loudon House LLC v Town of Colonie, 2014 NY Slip OP 09082, 3rd Dept 12-31-14


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Robbery Petition Jurisdictionally Defective—No Nonhearsay Identification of Respondent As the Perpetrator

The Third Department determined the petition charging respondent with the equivalent of robbery in the second degree and petit larceny was jurisdictionally defective and must be dismissed, even though respondent admitted to the charged acts and did not seek dismissal of the petition.  Although the petition was supplemented by a video showing the person alleged to have committed the robbery and a letter identifying the respondent as that person, the letter was unsworn and unsigned:

A juvenile delinquency petition must contain “a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the crime charged and the respondent's commission thereof” (Family Ct Act § 311.1 [3] [h]…). “A juvenile delinquency petition that fails to contain non-hearsay allegations . . . establish[ing] . . . every element of each crime charged and the respondent's commission thereof is both legally insufficient and jurisdictionally defective” … . Finally, notwithstanding respondent's admission to the charged acts in Family Court and his failure to seek the dismissal of the petition, his assertion that the petition is facially insufficient can be considered for the first time on appeal as such claim regards a nonwaiveable jurisdictional defect … .

Although the statements in the victim's deposition constitute nonhearsay allegations establishing that property was forcibly stolen from him, the deposition does not establish that respondent was the individual who committed such acts. Nor do the video image and … letter identifying respondent as the individual wearing the blue jacket depicted therein cure the evidentiary deficiencies that render the petition invalid. In particular, the video image shows, among other things, a male wearing a blue jacket with a white-striped sleeve that matches the description provided in the victim's report; however, the image itself does nothing to connect respondent to the robbery. Moreover, as [the] letter to the investigating police officer identifying respondent as the person wearing a blue jacket with white stripes on the sleeve was unsigned and unsworn, it does not constitute a nonhearsay identification of respondent as the person who committed the charged acts, thereby rendering the petition facially invalid … . Matter of Jayquan Vv, 2014 NY Slip Op 09086, 3rd Dept 12-31-14


 

Grandmother’s Pro Se Petition to Modify Visitation Is To Be Construed Liberally and Should Not Have Been Dismissed Without a Hearing

The Third Department determined Family Court should not have dismissed grandmother's petition to increase her visitation with the child without a hearing.  The court noted that because the grandmother filed her petition pro se, it should be construed liberally:

“A party seeking to modify a visitation order must show a change in circumstances resulting in a need for the modification to ensure the best interests of the child” … . Inasmuch as the grandmother filed her petition pro se, it should be construed liberally when considering whether she sufficiently alleged a change in circumstances (…see also CPLR 3026). Here, the grandmother alleged that an increase in visitation was warranted given that the child was older, the grandmother and child had developed a close bond, overnight visitation had never been addressed, and an overnight would permit the grandmother and the child to do more together, including spending time with family members who live farther away. While the mere passage of time and the child getting older do not constitute unanticipated changes in circumstances …, more was alleged here. Liberally construed, the grandmother's allegations in the petition adequately asserted that a sufficient change in circumstances has occurred. Matter of Ford v Baldi, 2014 NY Slip Op 09078, 3rd Dept 12-31-14


Only the Board of Parole Has the Authority to Impose Conditions On Postrelease Supervision/Fine or Restitution Imposed Without Having Been Discussed at Sentencing Must Be Stricken—Case Remitted

The Third Department noted that County Court should not have imposed conditions upon defendant's postrelease supervision because only the Board of Parole has that power.  The Third Department also noted that County Court should not have imposed a fine or restitution which were not mentioned during the plea proceedings, but the order of protection, which was discussed, should stand:

because only the Board of Parole is authorized to impose the conditions of a term of postrelease supervision (…Penal Law § 70.45 [3]; Executive Law §§ 259-c [2]; 259-i [3], [4]), County Court erred to the extent that it imposed certain conditions of defendant's postrelease supervision at sentencing and the conditions should be stricken. Similarly, inasmuch as neither a fine nor restitution was mentioned at the plea proceedings, the matter must be remitted to allow County Court to either impose the sentence that was negotiated or to give defendant an opportunity to withdraw his plea before imposing the enhanced sentence … .

In contrast, while only an order of protection against the victim was discussed during the plea agreement, “[o]rders of protection are not punitive in nature and are not necessarily dependent on, or the result of, a plea agreement” … . Accordingly, County Court did not err when it imposed an order of protection in favor of the victim and her family at sentencing and, notwithstanding this Court's determination to remit this matter, the order of protection remains in place. People v Curry, 2014 NY Slip Op 09069, 3rd Dept 12-31-14

 

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Failure to Move to Withdraw Plea, and Thereby Preserve the Issue for Appeal, Did Not Prohibit Appeal Here—Defendant Was Wrongly Informed by the Court and Counsel that the Denial of His Speedy Trial Motion Would Be Appealable After the Plea

The Third Department reversed Supreme Court and vacated defendant's guilty plea because defendant was wrongly informed by the court and counsel that his statutory speedy trial issue would survive the guilty plea (for appeal).  Under the circumstances, the court determined the failure to preserve the error by moving to withdraw the plea did not prohibit the appeal:

The People concede that an essential term of the plea bargain was the parties' understanding that defendant would retain the right to appeal the denial of his motion to dismiss on speedy trial grounds. Defendant was thereafter sentenced … . Defendant now appeals, arguing that his plea was involuntarily entered because his counsel and County Court erroneously informed him that a statutory CPL 30.30 claim would survive a plea of guilty.

Initially, we consider whether defendant was required to preserve this claim by appropriate postallocution motion (see CPL 220.60 [3]; 440.10). While a challenge to the validity of a guilty plea is generally not preserved for appellate review unless it was first raised in the trial court …, the Court of Appeals has recognized that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” … . Here a CPL 440.10 motion was unavailable because the error is clear from the face of the record; similarly a CPL 220.60 (3) motion was practically unavailable because “'defendant [could] hardly be expected to move to withdraw his plea on a ground of which he ha[d] no knowledge'” … . Inasmuch as defendant–due to the inaccurate advice of his counsel and the trial court–did not know during the plea and sentencing proceedings that his statutory speedy trial claim would be forfeited as a direct consequence of his plea …, preservation was not required … . Moreover, under these circumstances, we agree with defendant that his guilty plea was not knowing, intelligent and voluntary and, accordingly, we reverse and vacate the plea … . People v Williams, 2014 NY Slip Op 09067, 3rd Dept 12-31-14


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Trial Testimony Rendered an Indictment Count Duplicitous Requiring Dismissal/Sexual Abuse First Degree Is Not a Lesser Included Offense Re: a Course of Sexual Conduct Against a Child First Degree

The Third Department determined that an indictment-count rendered duplicitous by the trial testimony should have been dismissed, and an indictment-count was wrongly amended because the new charge was not a lesser included offense re: the original charge:

As pertinent here, the crime of criminal sexual act in the first degree requires proof that the defendant engaged in oral sexual conduct with another person who is less than 11 years old, and oral sexual conduct includes “contact between . . . the mouth and the vulva or vagina” (Penal Law § 130.00 [2] [a]; see Penal Law § 130.50 [3]). The challenged count charged defendant with this crime based upon the victim's grand jury testimony that defendant had caused the victim to use her mouth to make contact with defendant's vaginal area on a single occasion in 2004. At trial, however, the victim testified that defendant caused her to engage in this conduct multiple times during the pertinent time period, and that she did not remember any specific time when it had happened. … Unfortunately, the … testimony regarding multiple acts made it impossible to ascertain the particular act upon which the jury verdict was based. We are therefore required, despite the utterly heinous nature of the acts the victim described, to reverse defendant's conviction on this charge; further, the challenged count must be dismissed… . …

While the People may seek to amend an indictment at any time during trial to correct “matters of form, time, place, names of persons and the like,” such an amendment may not alter the theory of prosecution reflected in the evidence before the grand jury (CPL 200.70 [1]; see CPL 200.70 [2]…). Further, a court may submit to a jury a lesser included offense of a crime charged in an indictment provided that the elements of the two crimes are such that “it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct [and] there [is] a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” … . * * *

A crime is a lesser included offense of a charge of a higher degree only when in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the very same conduct, committing the lesser offense … . It is possible for a defendant to engage in an act of sexual conduct within the scope of the crime of course of sexual conduct against a child through an act of sexual contact, defined in pertinent part as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3]). However, a defendant could also commit an act of sexual conduct within the scope of the originally-charged offense by an act of “sexual intercourse, oral sexual conduct, anal sexual conduct, [or] aggravated sexual contact” (Penal Law § 130.00 [10]). The definitions of these acts do not include any element of intent; thus, it is possible for a defendant to commit an act that constitutes sexual conduct without the purpose of gratifying anyone's sexual desire that is a required element of sexual contact (see Penal Law § 130.00 [1], [2] [a], [b]; [11]…). Therefore, as it is possible to commit course of sexual conduct against a child in the first degree without also committing sexual abuse in the first degree by the same conduct, defendant's conviction on that charge must be reversed, and the amended indictment count must be dismissed … . People v Baker, 2014 NY Slip Op 09068, 3rd Dept 12-31-14


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Regulation Prohibiting/Restricting Smoking in New York Parks Properly Promulgated by Office of Parks, Recreation and Historic Preservation—“Boreali” Criteria Explained and Applied to the Facts in Some Depth

Reversing Supreme Court, the Third Department, in a full-fledged opinion by Justice Peters, determined that a regulation prohibiting/restricting smoking in New York parks was properly promulgated by the Office of Parks, Recreation and Historic Preservation (OPRHP).  Petitioner, an organization promoting the interests of smokers, argued the agency did not have the authority to regulate smoking in parks absent legislation on the issue and, therefore, the promulgation of the rule violated the principle of separation of powers.  The court explained the “Boreali” criteria under which the regulation was analyzed and applied the criteria to the facts (the interesting, detailed, fact-specific analysis is not summarized here):

Respondents, the Office of Parks, Recreation and Historic Preservation (hereinafter OPRHP) and its Commissioner, are empowered by statute to “[o]perate and maintain . . . historic sites and objects, parks, parkways and recreational facilities”(PRHPL 3.09 [2]) and to “[p]rovide for the health, safety and welfare of the public using facilities under its jurisdiction” (PRHPL 3.09 [5]). In February 2013, pursuant to this statutory authority, OPRHP adopted a rule establishing smoke-free areas in certain limited outdoor locations under its jurisdiction (see 9 NYCRR 386.1). Such regulation, among other things, also prohibits smoking in each state park located in New York City, with limited exceptions (see 9 NYCRR 386.1 [a] [2])… . OPRHP announced that this rule was needed in order to allow “patrons to enjoy the outdoors, breathe fresh air, walk, swim, exercise and experience [s]tate [p]arks' amenities and programs without being exposed to secondhand tobacco smoke and tobacco litter” (NY Reg Dec. 5, 2012 at 11). * * *

“The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” (…see NY Const, art III, § 1). As the Court of Appeals has recently reaffirmed, when determining whether an administrative agency has violated the constitutional principle of separation of powers, we must consider the “coalescing circumstances” set forth in Boreali v Axelrod (71 NY2d 1, 11 [1987]), namely, (1) whether the respondents improperly engaged in the balancing of their stated goal with competing social concerns and acted “solely on [their] own ideas of sound public policy”; (2) whether the respondents engaged in the “interstitial” rulemaking typical of administrative agencies or instead “wrote on a clean slate, creating [their] own comprehensive set of rules without benefit of legislative guidance”; (3) whether the challenged regulation concerns “an area in which the Legislature ha[s] repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions”; and (4) whether the respondents overstepped their bounds because the development of the regulation did not require the exercise of expertise or technical competence by the administrative agency (id. at 12-14 …). In determining whether “the difficult-to-define line between administrative rule-making and legislative policy-making has been transgressed,” this Court should view these circumstances “in combination” (Boreali v Axelrod, 71 NY2d at 11), while ever mindful that “'it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends'” … .

Applying the four Boreali considerations, we find no usurpation of the Legislature's prerogative by respondents' promulgation of 9 NYCRR 386.1. Matter of NYC C.L.A.S.H. Inc v New York State Off of Parks, Recreation & Historic Preserv, 2014 NY Slip Op 09085, 3rd Dept 12-31-14


 

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