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People Did Not Meet Their Burden of Demonstrating Developmentally Disabled Respondent, Who Had Been In the Care and Custody of the OPWDD Since His Acquittal of a Criminal Charge By Reason of Mental Disease or Defect, Was “Mentally Ill”—Respondent’s Release Was Appropriate

Respondent is mildly developmentally disabled and was committed to the care and custody of the Office for People with Developmental Disabilities (OPWDD) after acquittal of a criminal charge by reason of mental disease or defect.  The Third Department determined Supreme Court properly ruled respondent could be released to a supervised intermediate care facility subject compliance with a service plan.  The court determined the People did not meet their burden of proving respondent met the relevant statutory definition of “mentally ill,” i.e., the definition which applies to the developmentally disabled:

If the court finds that a person committed pursuant to CPL 330.20 does not have a dangerous mental disorder but is mentally ill, that person must be confined in a nonsecure facility (see CPL 330.20 [12]…). If the court finds that the person is no longer mentally ill, it must release the person with an order of conditions (see CPL 330.20 [12]…). For purposes of CPL 330.20, a person with a developmental disability is considered “mentally ill” if he or she “is in need of care and treatment as a resident in the in-patient services of a developmental center or other residential facility for the . . . developmentally disabled under the jurisdiction of [OPWDD]” (CPL 330.20 [1] [d]). The DA had the burden to prove by a preponderance of the evidence that respondent met the statutory definition of a “mentally ill” person (see CPL 330.20 [12]…]). * * *

…[T]he statute provides a different definition of “mentally ill” for individuals who have developmental disabilities in addition to one or more diagnosed mental disorders (see CPL 330.20 [1] [d]). For those individuals with developmental disabilities, the statute does not require that their judgment be so impaired by a mental illness that they are “unable to understand the need for such care and treatment” (CPL 330.20 [1] [d]); this makes sense, as such inability could be related to developmental disabilities as opposed to mental illness. Even if that additional factor applied here, however, respondent acknowledged in his testimony that he needed constant supervision, indicating that he understood the need for care and treatment. While the DA’s expert disagreed that respondent had any such understanding, Supreme Court found respondent credible and did not rely on that expert’s testimony. Thus, even under the definition of mentally ill that applies to individuals without developmental disabilities, the DA did not meet his burden. Matter of Arto ZZ, 2014 NY Slip Op 07053, 3rd Dept 10-16-14

 

Conspiracy Indictment Which Does Not Charge an Overt Act is Jurisdictionally Defective

The Third Department reversed defendant’s conviction and dismissed a conspiracy indictment as jurisdictionally defective because the indictment failed to charge the commission of an overt act in furtherance of the conspiracy:

In early October 2010, defendant — then serving a sentence in the Otsego County jail on a contempt conviction stemming from various violations of an order of protection in favor of his ex-girlfriend, Jeanette Hamm — allegedly told a fellow prisoner that he desired to have Hamm murdered. Defendant’s block-mate discussed the matter with prison officials, and the Otsego County Sheriff’s Department began an investigation. As part of the investigation, an undercover police officer posing as a potential assassin talked with defendant on the phone and met with him at the jail. Defendant was arrested shortly thereafter and charged by indictment with the crime of conspiracy in the second degree. * * *

As the People concede, the indictment is jurisdictionally defective and must be dismissed inasmuch as it failed to charge the commission of an overt act in furtherance of the conspiracy as required by Penal Law § 105.20 … . People v Grays, 2014 NY Slip Op 07017, 3rd Dept 10-16-14

 

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Court-Ordered Blood Test Results Should Have Been Suppressed Because the Application Failed to Indicate the Application Was Based Upon Hearsay/Elements of Reckless Driving Explained

The Third Department vacated defendant’s conviction for aggravated driving while intoxicated because the application for a court-ordered blood test did not indicate that it was based on hearsay.  In addition, the court, in affirming the defendant’s conviction for reckless driving, explained the elements of that offense. The defendant, who had stopped drinking a few hours before the accident, moved into the oncoming lane and struck the victim’s car head-on (the victim died):

Although an application for a court-ordered blood test may contain hearsay and double hearsay statements that satisfy the Aguilar-Spinelli test, the application must disclose that it is supported by hearsay and identify the source or sources of the hearsay” … . Here, the investigator based the application on information provided to him from other officers that defendant had made oral admissions at the scene to operating the vehicle and consuming alcohol, had a reading of .12% blood alcohol content on the Alco-Sensor test and refused to take a chemical test. The failure to reveal the hearsay nature of the information improperly deprived County Court of the opportunity to determine the reliability of the information for itself as a neutral, detached arbiter … . Accordingly, the motion to suppress the blood test results should have been granted and, in the absence of those results, the conviction for aggravated driving while intoxicated must be vacated … .

As for the charge of reckless driving, it is defined as driving “in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway” … . “More than mere negligence is required, and the term has been held to mean ‘the running or operation of an automobile under such circumstances as to show a reckless disregard of the consequences'” … . “Determining whether conduct rises to the level of unreasonable interference or endangerment such that it constitutes the requisite recklessness involves the presence of additional aggravating acts or circumstances beyond a single violation of a rule of the road” … .

Here, the investigator who reconstructed the accident testified that defendant crossed the center line and collided driver-side “headlight to [driver-side] headlight” with the oncoming vehicle. The passenger in the other vehicle testified that the victim observed defendant in their lane and, although the victim attempted to move over as far as possible to avoid the accident, defendant was almost entirely in their lane at the time of the collision. Defendant admitted that she had been drinking, and the arresting officer testified that she had glassy eyes, slurred speech and the odor of alcohol. The officer concluded, based on his experience and observations, that defendant was intoxicated. People v Earley, 2014 NY Slip Op 07022, 3rd Dept 10-16-14

 

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Notice of Increases in Water and Sewer Charges Was Sufficient If Not Ideal/Discrepancies in Water and Sewer Charges Did Not Violate Equal Protection Clause

The Third Department determined that the hearing and notice requirements for increased water and sewer charges had been met by the village, and any discrepancies among the water and sewer charges did not violate the equal protection clause because they were not the result of conscious, intentional discrimination:

… [W]e agree with plaintiff that, inasmuch as Local Law Nos. 4 and 5 (re: modification of water and sewer charges) appear on their face to be self-executing, hearing and notice requirements nonetheless apply. This is so because the local laws at issue neither substantially adhere to state law (see Village Law § 20-2000; General Municipal Law § 452) nor specify an intent to change or supercede the requirements of said laws … . As such, they remain subject to the notice requirements of state law.

…Supreme Court properly determined that adequate notice had been provided. In determining the adequacy of public notice required for the enactment of a local law, a court may look at whether or not such notice is “deceptive, misleading [or] framed to give a false concept of the text or intent of the local law” … . “Although technical compliance with the [notice requirements of Municipal Home Rule Law § 20] is not essential to the validity of a municipal enactment[, where] the noncompliance . . . goes to the substance of those provisions and thwarts their legislative purpose,” the resulting law may be invalid … .

Defendant historically modifies its water and sewer rates as part of its annual budget review process … . In this regard, each spring, defendant publishes a notice in the Gouverneur Tribune stating that a budget hearing will be held … . While the published notice only sets forth the details of the hearing, attendees are given copies of the budget which, if applicable, indicates any increases. Moreover, copies of defendant’s tentative budget are made available for public inspection in advance of the hearing. While the better practice may be for defendant to specifically include proposed water and sewer rate changes in its published notice, under these circumstances, we agree with Supreme Court that the lack of specificity does not render the notice provided insufficient. * * *

When setting sewer or water rates based on a user unit system where a municipality can only approximate customer usage, the municipality is not required to establish “‘exact congruence between the cost of the services provided and the rates charged'” … . Rather, while such rates must be rational, discrepancies and disproportionate costs to certain properties are permitted in the interest of administrative flexibility … . YNGH LLC v Village of Gouverneur, 2014 NY Slip Op 07051, 3rd Dept 10-16-14

 

Elements of Florida “Theft” Statute and New York Larceny Statutes Are Different—Florida Conviction Cannot Serve as a Predicate Felony in New York

The Third Department, using its “interest of justice” review power, determined defendant’s Florida conviction could not serve as a predicate felony in New York because the relevant Florida statute included an element not included in the relevant New York statute:

Here, the information contained with the second felony offender notice indicates that, in 2001, defendant was convicted in Florida of a felony “theft” in the third degree (see Fla Stat Ann § 812.014). Under the applicable Florida penal statute, it is a crime to “knowingly obtain[] or use[], or endeavor[] to obtain or to use, the property of another with intent to, either temporarily or permanently . . . [d]eprive the other person of a right to the property or a benefit from the property . . . [or a]ppropriate the property to his or her own use or to the use of any person not entitled to the use of the property” (Fla Stat Ann § 812.014 [1] [a], [b] [emphasis added]). In comparison, New York’s larceny statutes do not contain analogous language with regard to mere temporary deprivations or appropriations (see Penal Law §§ 155.00 [3], [4]; 155.05 [1]…). Thus, the Florida crime undoubtedly contains an element that is not included in New York’s larceny offenses and, as a result, the Florida conviction is not sufficiently analogous to a New York felony to serve as a predicate felony for purposes of Penal Law § 70.06 … . People v Parker, 2014 NY Slip Op 07021, 3rd Dept 10-16-14

 

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Out-of-Possession Landlord Not Liable Based Upon Right to Enter Premises to Make Repairs But May Be Liable as the Creator of the Dangerous Condition

In a case stemming from a fall from an allegedly defective ladder that was installed to gain access to a loft, the Third Department determined that an out-of-possession landlord was not liable based on a contractual reservation of the right to enter the premises to make repairs, but a question of fact had been raised about whether the out-of-possession landlord created the dangerous condition:

…[D]efendants were entitled to summary judgment as to the question of whether they were liable for plaintiff’s injuries based upon the provision in the lease retaining their right to enter the premises to make repairs. While a landlord who retains the right to enter the leased property to make repairs may be liable to injuries to third parties …, “only a significant structural or design defect that is contrary to a specific statutory safety provision will support imposition of liability against the landlord” … . Here, plaintiff’s expert opined that the condition of the ladder violated regulations found in the New York State Uniform Fire Prevention and Building Code (see 19 NYCRR 1219.1), the New York State Building Code and the Property Maintenance Code of New York. However, inasmuch as a violation of a regulation is insufficient to impose liability on an out-of-possession landlord pursuant to a reserved right to enter the premises …, plaintiff failed to raise a triable issue of fact.

We reach a different conclusion, however, as to whether defendants created the dangerous condition. Liability to a lessee’s employee for personal injuries may attach if the out-of-possession landlord affirmatively created the dangerous condition … . Although the former tenant hired an architect to design the plans for the premises, including the loft area and access ladder, defendants contracted and paid for the construction. Further, the record reflects that defendants took an active role in the construction project. Defendants and the tenant agreed to make changes to the architectural plans in order to cut costs, including changes to the design of the loft. While the architectural plan called for the ladder to be “mechanically fasten[ed] to surface of floor slab and at top edge to wood platform,” plaintiff’s expert opined, based upon his inspection of the site of the alleged accident, that the right stringer of the ladder was secured by three screws to an adjacent wall, not to the wood platform, and that the left stringer was not secured to the upper landing at all. Further, there was no evidence that the ladder was secured to the floor slab. Inasmuch as plaintiff contends that her fall was caused by the ladder shifting away from the loft, causing her to lose her balance, and viewing the evidence in the light most favorable to her, we find a triable issue of fact exists as to whether the ladder was constructed negligently and as to whether defendants created the dangerous condition … . Boice v PCK Dev Co LLC, 2014 NY Slip Op 07042, 3rd Dept 10-16-14

 

Election Law Which Restricts Where Certain Candidates’ Names May Appear on the Ballot (Election Law 7-104 (4) (c)) Declared Constitutional

The Third Department determined that Election Law 7-104 (4) (c) was not unconstitutional as applied to petitioners, candidates for state office nominated by the Stop Common Core Party:

Petitioners commenced this proceeding seeking a declaration that Election Law § 7-104 (4) (c) is unconstitutional as applied to them because it violates their rights to freedom of speech and association guaranteed by the 1st and 14th Amendments of the US Constitution. Although petitioners did not dispute that respondents complied with section 7-104 (4) (c), they asserted that strict enforcement of that provision creates a patch-worked and illogical ballot that promotes voter confusion, makes it more difficult for Stop Common Core Party supporters to locate petitioners, and impinges upon petitioners’ right to associate and express themselves as a party slate of candidates who share common ideals. Petitioners further sought to compel respondents to place their names on the Stop Common Core Party line … . * * *

[In overruling the line of cases relied upon by the petitioners, the] Court [of Appeals] …  stated that the prior version of the statute — which is not meaningfully distinct from the present version before us (see Election Law former § 248) — “is clear and constitutional” … . Addressing its prior cases … which found a strict application of the statute to be unfair and prejudicial in cases similar to this one, the Court stated that “‘[u]nfair and prejudicial’ must mean something beyond detriment or inconvenience since the Legislature itself has said that fairness calls for the prohibition of a third column” to candidates nominated by independent bodies when those candidates already appear on the ballot as the nominees of two or more major parties (Matter of Battista v Power, 16 NY2d at 201). The Court clarified that “[t]he kind of unfairness and prejudice which would make the section unconstitutional as to a particular group must be of such character as to deprive that group of proper representation on the voting machine or otherwise make it practically impossible for the members of that group to vote as such” (id.).

In our view, Matter of Battista v Power (supra) is controlling, particularly after the Court of Appeals expressly indicated that it had overruled the last of the prior, inconsistent line of cases …. Under Battista, Election Law § 7-104 (4) (c) is not unconstitutional as applied to petitioners—their names appear twice on the ballot in separate major party lines and the ballot further designates them as candidates of the Stop Common Core Party, albeit in a less prominent fashion than they seek … . Matter of Cahill v Kellner, 2014 NY Slip Op 06886, 3rd Dept 10-10-14

 

Court Indicates a Certification Claimant Is Not Working Can Be a “Willful Misrepresentation” Even If “Unintentional”

The Third Department determined claimant was properly denied benefits because of his self-employment activities which he did not report.  The court noted that the certification that claimant was not working supports the finding that he made a “willful misrepresentation even if it was unintentional:”

Whether a claimant is totally unemployed is a factual issue for the Board to decide, and its determination will be upheld if supported by substantial evidence … . A claimant who performs activities on behalf of an ongoing business may not be considered totally unemployed, even if such activities are minimal or the business is not profitable, if he or she stands to benefit financially from its continued operation … . Here, claimant incorporated the business, opened a business checking account, created a business logo, started developing a business website, distributed business cards, attended seminars and trade shows and had apparel samples made by overseas manufacturers, all in furtherance of establishing a lucrative business. Notwithstanding the fact that claimant was not receiving income from the business, substantial evidence supports the Board’s decision that he was not totally unemployed … . Furthermore, given that claimant read the provisions of the unemployment insurance handbook relating to self-employment, but represented that he was not working when certifying for benefits, we find no reason to disturb the Board’s finding that he made a willful misrepresentation — even if it was unintentional … . Matter of Romero…, 2014 NY Slip Op 06634, 3rd Dept 10-2-14

 

Posttraumatic Stress Disorder Deemed a Compensable Consequential Injury Stemming from a Prior Physical Injury

The Third Department affirmed the board’s finding that claimant was entitled to workers’ compensation benefits based in part upon posttraumatic stress disorder.  Claimant worked in a facility which housed juveniles who had committed the equivalent of felonies. Claimant was injured trying to control an unruly resident.  Thereafter, claimant, as part of his job, monitored video feeds from the facility and he often observed unruly behavior which reminded him of the incident in which he was injured:

Whether a subsequent disability arose consequentially from an existing compensable injury is a factual question for resolution by the Board, and its determination will not be disturbed when supported by substantial evidence” … . A consequential injury, in turn, is one that “result[s] directly and naturally from claimant’s prior injuries and the disability thereby produced” … . Claimant here testified that he was assigned to monitor video feeds of the facility upon his return to work from his back injury, work that required him to constantly observe the unruly behavior of the residents and reminded him of the initial incident and his injuries. His injuries left him feeling helpless to assist the coworkers he observed dealing with the residents, and he ultimately sought medical assistance after he became enraged and blacked out due to watching numerous incidents where other employees required aid. Claimant was thereafter diagnosed with posttraumatic stress disorder, accompanied by anxiety and depression, and his treating psychologist stated in no uncertain terms that those conditions flowed from the May 2010 incident and the injuries he sustained therein. The Board credited the psychologist’s factually specific opinion … , and the employer submitted no medical evidence to rebut it. Under these circumstances, we find substantial evidence in the record to support the Board’s determination … . Matter of Dowdell v Office of Family & Children Servs., 2014 NY Slip Op 06626, 3rd Dept 10-2-14

 

Substantial Evidence Supported Finding Claimant Was an Employee, Not an Independent Contractor

The Third Department determined the board’s finding that claimant was an employee of ASISS was supported by substantial evidence, despite evidence suggesting an independent contractor relationship:

Whether there exists an employment relationship is a factual issue for resolution by the Board and its decision will not be disturbed when supported by substantial evidence … . In making such a determination, the Board considers whether the putative employer exercised control over the results produced or the means used to achieve those results, with the means being the more important consideration … . Here, the testimony of both claimant and Anthony Stone, the principal of ASISS, established that claimant completed an application for employment and was hired at a rate of pay established exclusively by Stone. ASISS assigned claimant to a specific location, established his hours of work and covered him under its workers’ compensation insurance. Furthermore, it provided him with an employee code of conduct and required him to call in to an automated system at the beginning and end of each shift, to sign a time sheet and to submit incident reports. The client was not informed that claimant was an independent contractor, claimant was required to request time off two weeks in advance and ASISS would find a replacement if claimant was unavailable for his shift. Claimant was required to adhere to the company dress code by wearing a dark suit and tie, as well as a company lapel pin, while on duty. Furthermore, any complaints about claimant’s performance would be handled by ASISS and claimant would receive his pay even if the client did not pay ASISS. Accordingly, while there was other evidence in the record suggestive of an independent contractor relationship, we find that substantial evidence supports the Board’s determination that claimant was an employee … . Matter of Thomas J Dunno…, 2014 NY Slip Op 06348, 3rd Dept 9-25-14

 

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