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Spontaneous Statements Made After Request for Counsel Properly Admitted—911 Call Properly Admitted as an Excited Utterance

The Third Department determined statements made spontaneously to the police after the defendant requested counsel were properly admitted and a 911 call made by the burglary victim was properly admitted as an excited utterance:

As defendant requested counsel after being advised of his Miranda rights at the police station, any further police questioning was precluded … . However, “[n]otwithstanding this rule, statements made by a defendant who has invoked the right to counsel may nevertheless be admissible at trial if they were made spontaneously ” … . Here, we agree with County Court that the People established beyond a reasonable doubt that, following his request for counsel, defendant’s statements were not “the result of express questioning or its functional equivalent” … . That is, his statements to that point were “neither induced, provoked nor encouraged by the actions of the police officers” in simply bringing the girlfriend into the booking room, an action consistent with their routine procedure … . * * *

Next, defendant argues that County Court erred in admitting into evidence a redacted recording of the victim’s 911 call as an excited utterance, because her call was made after she had time for reflection. “An out-of-court statement is properly admissible under the excited utterance [hearsay] exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication” … . “Among the factors to be considered in determining whether . . . a statement is admissible [are] the nature of the startling event[,] the amount of time which has elapsed between the [startling] occurrence and the statement[,] and the activities of the declarant in the interim to ascertain if there was significant opportunity to deviate from the truth” …, although “the time for reflection is not measured in minutes or seconds, but rather is measured by facts” … .

Here, the victim testified that, although she had followed defendant’s car and had spoken with him, it was only after she returned home that she discovered that her home had been broken into and her television was missing, and she called 911 “right away.” In the 911 call, the obviously distressed victim exclaimed, “I was just robbed,” and explained her contact with defendant. As County Court correctly found, being the victim of a burglary is “a startling event” and the victim’s call was made “under the stress and excitement of a startling event and [was] not the product of any reflection and possible fabrication” … . People v Haskins, 2014 NY Slip Op 07019, 3rd Dept 10-16-14

 

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Denial of Request that Judge Recuse Himself Must Be Addressed On Direct Appeal, Not Via an Article 78 Proceeding

The Third Department explained that the denial of a request that a judge recuse himself from presiding over a particular matter could not be addressed via an Article 78 proceeding, but rather could only be addressed on direct appeal:

A CPLR article 78 proceeding is not an appropriate vehicle for seeking review of issues that could be raised upon a direct appeal …, including the denial of a party’s request that a judge recuse himself or herself from presiding over a particular matter … . Rather, petitioners’ remedy — at that point in time — was to either reduce respondent’s bench decision on the recusal motion to a written order, serve a copy of that order and the corresponding notice of entry … and timely file an appeal therefrom … or, alternatively, await decision on the underlying summary judgment motions and, if aggrieved thereby, challenge the denial of their recusal motion upon a direct appeal from that order … . Matter of Concord Assoc LP v LaBuda, 2014 NY Slip Op 07052, 3rd Dept 10-16-14

 

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Assignment of New Counsel and Adjournment of Trial Over Defendant’s Objection Was Proper—Defense Counsel Had Represented the Confidential Informant in the Past—District Attorney Objected to Preclusion of Confidential Informant’s Testimony as a Solution

The Third Department determined the trial court did not abuse its discretion when it ordered, over defendant’s objection, the assignment of new counsel because of a conflict of interest.  Assigned counsel had represented the confidential informant (CI).  The court was faced with either assigning new counsel or ruling that the CI could not testify:

County Court did not abuse its discretion in substituting assigned counsel against defendant’s wishes … . A criminal defendant’s right to counsel of his or her choice is not absolute and may properly be circumscribed where defense counsel’s continued representation of the defendant would present a conflict of interest … . Here, upon learning of the CI’s identity,[FN2] defendant’s original assigned attorney informed the court that he possessed confidential information from his prior representation of the CI that would affect his ability to cross-examine that witness, thereby establishing the existence of an actual conflict of interest … . Faced with “the dilemma of having to choose between undesirable alternatives” in addressing the conflict …, County Court’s decision to assign new counsel and adjourn the trial rather than preclude the testimony of the CI altogether constituted a proper exercise of its broad discretion under the circumstances presented … . People v Robinson, 2014 NY Slip Op 07018, 3rd Dept 10-16-14

 

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Bank’s Failure to Strictly Comply With the Filing Deadline in RPAPL 1306 Required Dismissal of the Complaint Seeking Foreclosure

In this mortgage foreclosure action, the Third Department determined that the bank’s failure to submit admissible proof of compliance with the service requirements of RPAPL 1304 precluded summary judgment, and the bank’s unexplained failure to comply with the filing deadline in RPAPL 1306 required dismissal of the complaint seeking foreclosure:

Defendant was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to comply with RPAPL 1306. That statute provides that lenders “shall file with the superintendent of financial services (superintendent) within three business days of the mailing of the notice required by [RPAPL 1304]” a form containing certain information regarding the borrower and mortgage (RPAPL 1306 [1]; see RPAPL 1306 [2]). The statute further states that “[a]ny complaint served in [an action] initiated pursuant to [RPAPL article 13] shall contain, as a condition precedent to such [action], an affirmative allegation that at the time the [action] is commenced, the plaintiff has complied with the provisions of this section” (RPAPL 1306 [1]). * * *

RPAPL 1306’s condition precedent to commencing a foreclosure action is strict compliance with the first sentence of the statute. In other words, a lender has only complied with the condition precedent if the lender has filed the appropriate form with the superintendent within three days of mailing the RPAPL 1304 notice to the borrower. TD Bank NA v Leroy, 2014 NY Slip Op 07047, 3rd Dept 10-16-14

 

Civil Service Law Did Not Create a Contractual or Vested Right in Health Benefits—Statutory Provision Allowing the Reduction in Benefits Valid and Enforceable Retroactively

The Third Department, in a full-fledged opinion by Justice Peters, determined that a Civil Service Law statutory provision allowing reductions in the state’s contribution to retired state employees’ health benefits (Civil Service Law section 167 (8)) was valid and enforceable retroactively.  The court further determined that Civil Service Law section 167 (1)(a) did not create a contractual or vested right in health benefits which was violated by section 167 (8):

Petitioners argue that Civil Service Law § 167 is internally inconsistent to the extent that it imposes a fixed contribution rate for retiree health insurance while concomitantly authorizing modification of those statutory rates, and they urge this Court to harmonize the statute’s provisions by declaring that Civil Service Law § 167 (8) applies only prospectively. We begin our analysis with the familiar maxim that the text of a statute is the best evidence of legislative intent and, “where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” … . It is also fundamental that a statute must be considered as a whole and its various sections construed with reference to one another and in a way that renders them internally compatible … .

Applying these principles here, we conclude that Civil Service Law § 167 (8) plainly and unambiguously permits modification of the fixed contribution rates for retiree health insurance premiums set forth in Civil Service Law § 167 (1) (a). * * * …[W]hile Civil Service Law § 167 (1) (a) provides for a fixed percentage contribution, the explicit command of the Legislature in Civil Service Law § 167 (8) makes clear that the former provision does not apply where it would otherwise conflict with Civil Service Law § 167 (8). As the plain language renders these provisions internally compatible, “there is no room for construction and [we] have no right to add to or take away from that meaning” … .

Petitioners next claim that they have a contractual and vested property right to the percentage contribution rate set forth in Civil Service Law § 167 (1) (a) * * *.  “[B]efore a law may be deemed to amount to a contract between the [s]tate and a third party, the statutory language must be examined and found to be ‘plain and susceptible of no other reasonable construction’ than that a contract was intended” … . Indeed, “certain types of legislative acts, including those fixing salaries and compensation, . . . [give rise to the presumption that the] ‘law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise'” … .

We find nothing in the language of Civil Service Law § 167 (1) (a) to constitute “clear and irresistible evidence” that the Legislature intended to “fetter[] its power in the future” with respect to retirees’ health insurance contributions … . Matter of Retired Pub Empls Assn Inc v Cuomo, 2014 NY Slip Op 07044, 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

 

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

 

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

 

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

 

Claimant Did Not Receive a Bona Fide Offer of Suitable Employment that She Was Compelled to Accept After Her Lay Off—Details of Project Not Finally Established—Terms Less Favorable than Those of Prior Job

The Third Department determined claimant was entitled to unemployment benefits because she did not receive a bona fide offer of employment and, even she had been given a bona fide offer of employment she was not compelled to accept it because the terms were substantially less favorable than the terms of her employment prior to her layoff:

Initially, it is for the Board to decide whether a claimant has refused an offer of suitable employment for which he or she is reasonably fitted by training and experience (see Labor Law § 593 [2]), and its decision in this regard will be upheld if supported by substantial evidence … . Here, evidence was presented that the details of the project were not finally established at the time the employer made its inquiry, and the time frame and required hours were also not definitive … . In view of this, substantial evidence supports the Board’s finding that claimant was not given a bona fide offer of suitable employment which she refused. Moreover, even if we were to conclude that she was given a bona fide offer of employment, the terms were substantially less favorable than the terms of her employment prior to her lay off and, consequently, she was not compelled to accept it … . Matter of Gibbons …, 2014 NY Slip Op 06351, 2nd Dept 9-25-14

 

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