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Attorney Was an “Employee,” Not an Independent Contractor, for Puposes of the State and Local Employees’ Retirement System

The Third Department reversed the Comptroller’s ruling that petitioner, an attorney, was not an employee of the school district for purposes of benefits provided by the New York State and Local Employees’ Retirement System:

…”[W]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship” … . “Rather, such an employment relationship may be evidenced by control over important aspects of the services performed other than results or means” … . In other words, “over-all control is sufficient to establish the employee relationship where [professional] work is concerned” … . Upon our review, we fail to find substantial evidence to support the Comptroller’s determination that petitioner was an independent contractor and not an employee of the school district.Here, the school district’s former superintendent, who worked with petitioner for nearly four decades, testified that during his tenure he supervised all staff at the school district, including petitioner. Matter of Brothman v DiNapoli, 517032, 3rd Dept 2-20-14

 

Revocation of Day-Care License “Shocking to One’s Sense of Fairness”

The Third Department determined revocation of petitioner’s day-care license was too severe a penalty for a situation in which two children were left unsupervised for 20 to 30 minutes. The children, ages 11 and 13, had a cell phone and were never in any imminent danger of harm:

Although petitioner violated a regulation, the penalty of revocation is too disproportionate to this isolated violation that was the result of extenuating circumstances. An administrative penalty “must be upheld unless it is ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness'” …, “thus constituting an abuse of discretion as a matter of law” … , * * *Based on the children’s ages and their possession of a cell phone that they used to contact petitioner, the children were not put in danger by this incident, despite the potential danger that existed from children being left unsupervised …. . Although the regulation makes clear that it is not appropriate to leave children unsupervised (see 18 NYCRR 417.8 [a]), petitioner did not violate the regulation intentionally, as she had established a plan for the supervision of the children in her absence, and the violation occurred as “the result of extenuating circumstances”… . Matter of Lewis v NYS Office of Children and Family Services, 516650, 3rd Dept 2-20-14

 

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Criteria for Interpreting Ambiguous Terms in Separation Agreement

The Third Department explained how ambiguity in the terms of a separation agreement is to be handled by the courts:

Ambiguity in a separation agreement is resolved, as with any contract, by determining the parties’ intent from within the instrument’s four corners, if possible, and otherwise from extrinsic evidence … . In doing so, “[t]he court is not limited to the literal language of the agreement, but should also include a consideration of whatever may be reasonably implied from that literal language”… . Matter of Apjohn v Lubinski, 516326, 3rd Dept 2-20-14

 

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Limited Role of Courts in Determining Applications to Stay Arbitration (Re: a Collective Bargaining Agreement [CBA]) Explained

The Third Department determined the petition to stay arbitration in a teacher-tenure matter should have been denied. In so finding, the Third Department explained the limited role of the courts in determining applications to stay arbitration:

The court’s role in determining applications to stay arbitration is limited and, as relevant here, requires a determination of whether the parties have agreed to arbitrate the dispute at issue … .Inasmuch as respondent has asserted a violation of the evaluation procedures agreed to by the parties as part of the CBA, there is a rational relationship between the subject of the grievance and the CBA … . The question of whether petitioner violated these procedures “goes to the merits of the grievance, not to its arbitrability” … . “[T]he fact that the substantive clauses of the contract might not support the grievances . . . is irrelevant on the threshold question of arbitrability. It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the[] parties'” … . Matter of Brunswick Central School District …, 517060, 3rd Dept 2-20-14

 

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Questioning of Defendant Did Not Constitute “Custodial Interrogation”

The Third Department determined County Court should not have suppressed defendant’s statements as the product of custodial interrogation. The police investigation had led to defendant’s IP address being associated with accessing child pornography on the Internet. The investigator went to defendant’s place of employment and asked the defendant to accompany him to the police station, which the defendant agreed to do:

The testimony … revealed that defendant was brought to a room at the police station where he was interviewed for a total of no more than 30 minutes. During the brief period that preceded the Miranda warnings, defendant was not handcuffed or restrained in any manner and the investigators did not do anything to convey that defendant was not free to leave … . Moreover, the two questions that preceded the Miranda warnings – the first asked defendant for his address and the second inquired into defendant’s Internet service – were investigatory, as opposed to accusatory. Considering the totality of the circumstances, and in light of County Court’s determinations that [the interrogating officer] was “frank, candid, and trustworthy and [that] his testimony had the general force and flavor of credibility,” we find that the People met their burden of establishing beyond a reasonable doubt that defendant’s pre-Miranda statements were not the product of a custodial interrogation… . People v Henry, 106048, 3rd Dept 2-20-14

 

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Presentation of Evidence of an Uncharged Offense Without Seeking a Ruling on Its Admissibility in Advance Deprived Defendant of a Fair Trial

The Third Department determined the presentation of evidence of an uncharged sexual offense deprived defendant of a fair trial. Without seeking a ruling in advance, and without presenting an argument why the evidence was relevant to anything other than criminal propensity, the prosecutor presented evidence alleging defendant’s sexual misconduct involving a child other than the victim in the charged offense. In ordering a new trial, the Third Department explained:

It is beyond dispute that evidence of a defendant’s uncharged crimes or prior bad acts cannot be admitted solely for the purpose of proving criminal propensity … . Rather, “evidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions – motive, intent, absence of mistake, common plan or scheme and identity – or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” …, and the trial court further determines that the probative value of such evidence outweighs its prejudicial effect … . Here, the record does not reflect that the People sought any sort of ruling from County Court regarding the admissibility of defendant’s uncharged crime/prior bad act before eliciting such testimony from the victim’s mother on their case-in-chief …, nor does the record reveal that the People made any attempt to “identify some issue, other than mere criminal propensity, to which the evidence [was] relevant”… . People v Brown, 105062, 3rd Dept 2-20-14

 

Family Court Improperly Delegated Its Responsibility to Set the Terms of Father’s Supervised Visitation

The Third Department determined Family Court improperly relinquished its authority to dictate the terms of father’s supervised visitation to the petitioner (grandmother):

…[W]e find merit to the father’s contention that Family Court erred in granting visitation subject to conditions of supervision set at the sole discretion of petitioner. Family Court is required to determine the issue of visitation in accord with the best interests of the children and fashion a schedule that permits a noncustodial parent to have frequent and regular access … . In doing so, the court may not delegate its authority to make such decisions to a party … . Here, in light of the father’s apparent history of domestic violence and failure to submit to a substance abuse screen, the court did not err in requiring that the father be subject to supervised visitation.However, inasmuch as the court granted complete authority to petitioner to determine the father’s access to the children and under what conditions that access may occur, the court impermissibly abdicated its responsibility to ensure that the father has regular and meaningful visitation with the children and, therefore, the matter must be remitted for a hearing and redetermination in this regard… . Matter of Aida B v Alfredo C, 515713, 3rd Dept 2-20-14

 

No Reference to When Child-Pornography Images Downloaded/Therefore Consecutive Sentences Could Not Be Imposed

The Third Department determined that consecutive sentences could not be imposed for the downloading of child pornography without specific reference to the date and time of each download:

Consecutive sentences are authorized when “‘the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct'” … .  The determination as to whether defendant committed separate and distinct acts of possession turns upon when the images came into his possession … .  While the accusatory instrument and defendant’s plea allocution each specified the date and time upon which the images were retrieved from defendant’s computer, there was no information regarding defendant’s act of downloading the images.  Accordingly, consecutive sentences were not authorized in the absence of such information… . People v Pardy, 105529, 3rd Dept 1-30-14

 

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Court May Impliedly Vacate Note of Issue by Directing Discovery

Although the trial court did not impliedly vacate the note of issue in this case, the Third Department explained the criteria for such a vacation:

A court may be deemed to have vacated a note of issue sua sponte, even without explicitly stating so, if the court’s directives with respect to discovery “clearly evince its intent to do so and have the same practical effect”… . McDowell & Walder Inc v Micha…, 516375, 3rd Dept 1-23-14

 

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What To Do If the District Attorney Does Not Wish to Prosecute But the Judge Does

The Third Department determined a trial judge exceeded his powers when he ordered the prosecutor to produce witnesses at a suppression hearing.  The prosecutor did not wish to proceed with the case. The Third Department determined that the prosecutor could not be ordered to produce witnesses at the suppression hearing (the prosecutor’s tactic for dismissing the case) because the CPL did not require the prosecution to present such witnesses. The Third Department went on to suggest that, in this situation, a motion for “dismissal in the interest of justice” might be used, or the prosecutor could simply not present any inculpatory proof at trial:

A district attorney has “unfettered discretion to determine whether to prosecute a particular suspect” … .  Once prosecution of the case is pursued and pending, the district attorney remains “presumptively the best judge of whether a pending prosecution should be terminated” …; nonetheless, at such point dismissal cannot properly be done unilaterally on the sole whim of the district attorney … .  * * *  Unless the district attorney has engaged in egregious misconduct violative of the public interest, the limitation generally will not create difficulty in obtaining swift dismissal where a defendant also desires dismissal, since various procedures are available for disposing of a pending criminal case.

For example, a motion to dismiss in the interest of justice can be made (see CPL 170.40; see also CPL 210.40).  Such motion can be initiated by a defendant, a district attorney, or even by the court before which the case is pending * * *. Although there are statutory criteria that must also be addressed as part of a motion to dismiss in the interest of justice (see CPL 170.40 [1] [a]-[j]), the criteria include a catchall (see CPL 170.40 [1] [j]), and there is flexibility in the manner in which the criteria are weighed and applied … .  * * *

Another, but more time consuming, option is similar to the one ostensibly embarked upon by petitioner.   Consistent with the CPL, a district attorney can stipulate at a suppression hearing to the granting of a defendant’s motion (see CPL 710.60 [2] [b]).   Further, the failure at an eventual trial to produce any inculpatory proof would result in dismissal and, since reprosecution would then be precluded (see e.g. CPL 40.20, 40.30), the primary purpose for abolishing nolle prosequi would not be implicated … . Matter of Soares v Carter…, 517191, 3rd Dept 1-23-14

 

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