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“Technical Irregularities” Did Not Preclude Allowing Opportunity to Ballot

The Third Department applied the concept of “technical irregularities” to signatures rendered invalid by problems with two subscribing witnesses.  In spite of the invalidation of the signatures, because there was no fraud and no indication the voters were not entitled to sign the petition, the opportunity to ballot was properly allowed:

The record establishes that one of the subscribing witnesses, a commissioner of deeds, failed to inform any of “the signers that, by signing the petition, they affirmed the truth of the matter to which they subscribed” … . While the signatures collected by him were rendered invalid as a result, under the circumstances presented here his failure constituted nothing more than a “technical irregularity”… .The second subscribing witness, Horan, mistakenly executed the statement intended for a notary public or commissioner of deeds rather than that meant for party members.  While Horan is in fact a notary public, he did not identify himself as such in the witness statement (see Election Law § 6-132…).  The signatures that Horan witnessed were rendered invalid as a result, but his failure to indicate his position was a technical defect that did “not call into serious question the existence of adequate support among eligible voters” … .  Absent any indication that fraud was involved or that the voters who signed the invalid pages were not entitled to sign the petition, Supreme Court properly directed an opportunity to ballot for the offices… .  Matter of Hall v Dussault…, 517199, 3rd Dept 8-15-13

 

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Burden Upon Police to Determine Whether Defendant Represented by Counsel Explained

In affirming the denial of a motion to vacate a conviction after a hearing (over a substantial dissent), the Third Department explained the burden upon the police to determine whether a defendant is represented by counsel before questioning him. In this case the question was whether defendant’s attorney, who represented defendant in a robbery case resolved by a cooperation agreement and who initially was involved a homicide case in 2003, was still representing the defendant in the homicide case when the defendant was questioned about it in 2006:

Although [defendant’s attorney] clearly participated in the homicide investigation in 2003 and the police were well aware that he had entered into it as defendant’s counsel, the parties agree that there was a genuine lack of clarity …surrounding the question of whether that representation was limited to the cooperation agreement and had terminated once defendant was sentenced in the robbery case.

It is well settled that where, as here, there is any ambiguity as to whether the defendant is represented by counsel, the burden rests squarely on the police to resolve that ambiguity prior to questioning … .  Here, before questioning defendant in 2006, [the police] met with [defendant’s attorney], who told them unequivocally that he no longer represented defendant.  Inasmuch as the police fulfilled their obligation to resolve the ambiguity by determining that [the attorney’s] representation of defendant had terminated prior to questioning him, County Court did not err in concluding that defendant’s right to counsel had not been violated … .  People v McLean, 104691, 3rd Dept, 8-8-13

 

Sentence for Which Merit Time Allowance Is Not Available Did Not Preclude Application for Resentencing Under Drug Law Reform Act

The Third Department, over a dissent, declined to follow the 2nd Department in its application of CPL 440.46 (Drug Law Reform Act).   The defendant was eligible to apply for resentencing based upon his offense, but, under the sentence defendant was serving at the time of his application for resentencing, he was not entitled to a merit time allowance pursuant to the Correction Law.  The Third Department determined defendant was eligible to apply for resentencing:

Although defendant, having been sentenced pursuant to his drug offense convictions as a persistent felony offender, is serving a sentence that would preclude him from earning merit time pursuant to Correction Law § 803 (see Correction Law § 803 [1] [d] [ii]; Penal Law § 70.10 [2]), he was not convicted of an “offense for which a merit time allowance is not available” (CPL 440.46 [5] [a] [ii] [emphasis added]; see Penal Law §§ 10.00 [1]; 220.39).  This distinction is significant.  The Penal Law states:

“‘Offense’ means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same” (Penal Law § 10.00 [1]).

Defendant’s offense and his sentence are thus two separate components that we decline to conflate for purposes of depriving an otherwise eligible person of the benefits of the remedial legislation that we are tasked with interpreting here.  To the extent that the [2nd] Department held to the contrary in People v Gregory (80 AD3d 624 [2011], lv denied 17 NY3d 806 [2011]), we decline to follow that case.  Accordingly, we find that defendant is eligible to apply for resentencing pursuant to the Drug Law Reform Act of 2009, and County Court erred in denying defendant’s motion.  People v Coleman, 104851, 3rd Dept 8-1-13

 

Behavior Did Not Warrant Removal from Hearing

In annulling the determination because the inmate’s behavior did not warrant his removal from the hearing, the Third Department wrote:

It is well settled that “[a]n inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals” … . Here, petitioner objected to the continuation of the hearing after the prior Hearing Officer’s recusal.  It appears that the Hearing Officer became frustrated with petitioner’s unwillingness to move forward and warned him that he could be removed. Petitioner then ceased objecting, entered his pleas of not guilty to the charges and stated that he wished to put “a lot” on the record.  However, he then twice asked a question that the Hearing Officer apparently deemed irrelevant, and was abruptly removed from the hearing.  Under these circumstances, we do not find that petitioner’s conduct rose to the level of disruption that warranted excluding him from the remainder of the hearing… . Matter of German v Fischer, 515746, 3rd Dept 7-25-13

 

Criteria for Expungement Explained

In affirming Supreme Court’s annulment of the determination and grant of a new hearing because the recording of the proceeding was incomplete, the Third Department noted that the criteria for expungemet had not been met:

It is well settled that “[e]xpungement will be ordered only where there has been a showing that ‘(1) the challenged disciplinary determination is not supported by substantial evidence . . .; (2) there has been a violation of one of the inmate’s fundamental due process rights, as enunciated in Wolff v McDonnell (418 US 539 [1974]); or (3) other equitable considerations dictate expungement of the record rather than remittal for a new hearing'”… None of the foregoing situations is implicated here.  Matter of Barnes v Fischer, 515146, 3rd Dept 7-25-13 

 

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Depraved Indifference Murder of Child Count Should Not Have Been Dismissed Based On the Grand Jury Evidence In Spite of Difficulty of Proving the Count at Trial

The Third Department determined the trial court should not have dismissed the count of the indictment which charged defendant with depraved indifference murder of a child.  While acknowledging the prosecution may have difficulty proving the charge at trial, the court determined that a logical inference from the grand-jury proof was that the injuries defendant inflicted on the child were immediately and obviously very serious and defendant callously delayed getting help while minimizing his conduct and the seriousness of the injuries.  In explaining the general criteria for the sufficiency of grand jury evidence, the court wrote:

In reviewing a motion to dismiss an indictment, courts view the evidence in a light most favorable to the People and determine only whether the evidence presented to the grand jury was legally sufficient … . “In the context of grand jury proceedings, ‘legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt’… .  “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes” … .  “[I]f the prosecutor has established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements” … .  People v Waite, 105416, 3rd Dept 7-25-13

 

Defendant’s Failure to Appear at Pre-Trial Conference Did Not Warrant Striking Answer

The Third Department reversed Supreme Court’s striking of defendant’s answer as a penalty for defendant’s not appearing at a pre-trial conference as ordered:

Generally speaking, and based upon sound underlying policy, there is a strong judicial preference for determination of issues upon the merits ….  Consistent with this policy, defendant’s failure to comply with the court’s directive for in-person appearance at a pretrial conference is not punishable by an order striking the pleadings. The applicable rule instead specifically authorizes the court only to deem a party’s failure to comply  “a default under  CPLR  3404,” which  results in removal  of the case from  the trial calendar (22 NYCRR 202.26 [e]…).  CBA Properties LLC v Global Airlines Services Inc, 515868, 3rd Dept 7-18-13

 

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Release Precluded Civil Rights Action; No Showing Release Signed Under Duress; Releases Signed Under Duress Are Voidable Not Void

The Third Department affirmed the dismissal of plaintiff’s civil rights complaint based upon a release signed by the plaintiff.  The court determined that plaintiff’s allegations did not create a question of fact about whether the release was the product of duress.  The relevant legal principles, including the principle that contracts signed under duress are voidable, not void, were explained as follows:

Under  contract law, a signed release that is clear and unambiguous and knowingly and voluntarily entered into is binding on the parties unless cause exists to invalidate it on one of the recognized bases for setting aside written agreements, including illegality, fraud, mutual mistake, duress or coercion… .  A party such as plaintiff seeking to void a written contract on the ground of duress must meet her burden of demonstrating “(1) threats of an unlawful act by one party which (2) compel[] performance by the other party of an act which it had a legal right to abstain from performing”… .

Moreover, contracts executed under duress are, at most, voidable and not void and, by accepting and retaining the benefits of the second agreement for almost two years and not timely repudiating it, plaintiff affirmed or ratified that agreement, which is binding and no longer voidable on the grounds of duress, which objections are waived… .  Nelson v Lattner Enterprises of NY…, 515927, 3rd Dept 7-18-13

 

Question of Fact Raised About Defendant’s Knowledge of Horse’s Vicious Propensities

The Third Department affirmed the denial of summary judgment in a case where plaintiff was injured by defendant’s horse.  Plaintiff was knocked unconscious when defendant’s horse “head swatted” him.  The Third Department determined the deposition testimony of a neighbor raised a question of fact about whether defendant was aware of the horse’s aggressive behavior.  The Third Department explained the relevant legal principles as follows:

As a general rule, an owner of a domestic animal  will only be  held  strictly liable for the  harm  caused  by such animal if he or she “‘knows or should have known of that animal’s vicious propensities'”  Therefore, on his motion for summary judgment, defendant bore the initial burden of establishing that he had no prior knowledge that [his horse] had any vicious propensity ….  It is now well established that a vicious propensity is “the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” …, and includes behavior that would  not necessarily be  considered  dangerous  or ferocious if those behaviors reflect a “‘proclivity to act in a way that puts others at risk of harm'” … However, normal  or typical equine behavior is  insufficient  to  establish  a  vicious  propensity … . Carey… v Schwab, 516021, 3rd Dept 7-18-13

 

Guidelines With Pre-Authorized Specific Procedure List for Medical Tests and Services Held Valid; Variance Procedure for Tests and Services Not on List Held Valid

In a full-fledged opinion by Justice Spain, the Third Department determined the Medical Treatment Guidelines created pursuant to Workers’ Compensation Law section 13-a (5) were valid and enforceable.  The Guidelines were adopted as the standard of care for all medical treatment for workplace injuries rendered on or after December 1, 2010, relating to injuries to the back, neck, shoulder and knee. The Guidelines include a preauthorized-specific-procedure-list for many common medical tests and services which do not require prior authorization. The regulations set forth a variance procedure in which treatment providers may request approval for medical care or testing that is not preapproved upon a showing that the treatment is appropriate and medically necessary.  In the case before the court, the denial of claimant’s request for a variance for acupuncture treatment was affirmed.  The dissenting justice argued there was “no support for the majority’s position that the [Guidelines] were intended to create a preordained and exhaustive list of medically necessary treatments, thereby rendering all non-listed treatments presumptively not medically necessary and creating a presumption that the employers/carriers could ‘rely on’ in fulfilling their statutory obligation to provide medical care to injured claimants.”  Matter of Kigin v State of New York Workers’ Compensation Board…, 515721, 3rd Dept 7-18-13

 

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