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Waiver of Appeal Invalid; Counsel Did Not Take Position Adverse to Client Re: Pro Se Motion

In affirming the conviction, the Third Department determined the waiver of appeal (re; the harshness of the sentence) was not valid and defendant’s counsel had not take a position adverse to the defendant with respect to defendant’s pro se motion to withdraw his guilty plea. Although defense counsel responded negatively when the court asked if counsel knew of any legal basis for defendant’s motion, the Third Department explained that counsel was unaware of the contents of the motion at the time the court asked about it:

County Court failed to adequately distinguish the right to appeal from  those rights that are automatically forfeited upon  a guilty plea, thus rendering defendant’s appeal waiver invalid…. Moreover, no mention was made on the record during the course of the allocution concerning the waiver of defendant’s right to appeal his conviction that he was  also waiving his right to appeal the harshness of his sentence …. Nor do we  find that the deficiencies in the allocution are cured by defendant’s written appeal waiver…  * * *

…[D]efense counsel’s negative  response  to County  Court’s inquiry  at the outset of the hearing as to whether  “there [was] any  legal basis in [counsel’s] knowledge to allow [defendant] to withdraw his plea of guilty” was clearly not an opinion on the merits of defendant’s pro se motion – which counsel had not yet reviewed – and, thus, counsel did not thereby take a position adverse to that of his client or affirmatively undermine  the arguments  that defendant sought to present to the court… .  People v Pimentel, 104070, 3rd Dept 7-11-13

 

Criteria for Constructive Trust Not Met

In affirming Supreme Court’s ruling that plaintiff had failed to establish money given to the defendant (plaintiff’s son) by the plaintiff, originally for the purchase of a lake house, was held by the defendant as a constructive trust, the Third Department explained:

Plaintiff failed to establish the necessary elements of a constructive trust, which include a confidential or fiduciary relationship, a promise, a transfer in reliance thereon and  unjust enrichment….    Although plaintiff contends that there was a relationship of trust at the time the money was given to defendant based on the familial relationship and plaintiff’s belief that, despite his criminal history, defendant had  turned his life around,  this argument  is contradicted  by plaintiff’s own testimony that he and defendant were “never too friendly,” his relationship with defendant was  “at arm’s length” and he felt defendant was “always . . . hiding something from me.”    Furthermore, there was no indication that defendant attempted to take advantage of plaintiff’s trust by encouraging the transfer or that plaintiff was under defendant’s influence in any way.    The record supports Supreme Court’s finding that the idea of buying a lake house was eventually abandoned and the money was given to defendant for placement in a mutual fund account in his name alone by plaintiff, who had significantly more education, business and  financial experience  than  defendant.  Garcia v Garcia, 515582, 3rd Dept 7-11-13

 

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Wage Parity Law Which Conditions Medicaid Reimbursement Upon Paying Home Health Services Workers a Minimum Wage Is Constitutional

In a full-fledged opinion by Justice McCarthy, the Third Department determined the Wage Parity Law (Public Health Law section 3614-c), which conditions Medicaid reimbursement upon paying home health services providers a minimum wage as set in New York City’s Living Wage Law, was constitutional. The court rejected arguments that: (1) the Legislature improperly delegated its authority to New York City; (2) the law improperly incorporated the Living Wage Law by reference; (3) extending the New York City law violated the home rule provision of the NY Constitution; and (5) the statute violated the substantive due process requirements.  Matter of Concerned Home Care Providers, Inc v State of New York, 515737, 3rd Dept 7-3-13

 

Employer Policy Re: Firing of Employees Injured in Preventable Accidents Was Discriminatory

The Third Department determined a policy which required probationary employees injured in a preventable accident to be fired, but did not require the firing of uninjured probationary employees who were observed working unsafely, improperly served to dissuade injured employees from seeking Workers’ Compensation:

Workers’ Compensation Law § 120 prohibits an employer from discriminating against  an  employee  because  that employee  either claimed or attempted  to claim workers’ compensation  benefits….  In enacting Workers’ Compensation Law § 120, the Legislature intended “to insure that a claimant [could] exercise his [or her] rights under the [Workers’] Compensation Law  . . . without fear that doing so [might] endanger the continuity of [his or her] employment… .

…[T]he policy …has a discernible impact upon probationary employees who are injured in work-related accidents, i.e., employees who  potentially could seek workers’ compensation  benefits.    The policy  effectively categorizes probationary employees into two groups: those who violate safety rules but are not injured, and those who violate safety rules and  are injured – with only the latter group automatically forfeiting their right to work  for the employer….   Such a policy dissuades those probationary employees who are injured in the course of their employment and wish to remain employed from reporting their injury and pursuing workers’ compensation benefits, which, in turn, runs counter to the Legislature’s intended purpose of insuring that employees  can exercise  their rights under  the  compensation  statutes  “without fear that doing  so may  endanger  the continuity of [their] employment”… .  Matter of Rodriguez v C& S Wholesale Grocers, Inc, 516124, 3rd Dept 7-3-13

 

Disability Pre-dated Work at World Trade Center—Worker Entitled to Workers’ Compensation

In reversing a decision of the Workers’ Compensation Board which ruled the employer was not entitled to reimbursement from the Special Disability Fund on the ground that the employee’s lung disease was solely related to work at the World Trade Center, the Third Department wrote:

[The treating doctor] repeatedly expressed  his  opinion  that claimant’s interstitial lung disease was  related to both his exposure at the WTC site and certain exposures throughout his career with the employer, which included exposure to asbestos. …Thus, although reimbursement pursuant to Workers’ Compensation Law § 15 (8) (d) may be denied when a work-related injury is the sole  cause  of  a  permanent  disability…, there is no medical evidence present here to support the Board’s conclusion that claimant’s disability was solely caused by his WTC  site exposure and, therefore, the Fund was inappropriately discharged… . Matter of Surianello, 515055, 3rd Dept 7-3-13

 

Employee’s Use of Personal Checking Account Did Not Amount to Misconduct

The Third Department reversed the Unemployment Insurance Appeal Board’s denial of benefits finding that, although the practice of depositing money in the employee’s bank account for reimbursement to her and others for out of pocket expenses violated company policy, it did not amount to misconduct:

Even  where  an  employee  has been  fired for legitimate reasons, the “behavior may  fall short of misconduct and, therefore, he  or she  may  still be  entitled to receive benefits”….   Although a knowing violation of an employer’s established policies that has a detrimental effect on  the employer’s interests can  constitute disqualifying  misconduct  …, we find that claimant’s misconduct  in this case did not rise to a disqualifying    level.    While we do not quarrel with the Board’s finding that claimant violated the employer’s established policies, which  provided a basis for terminating her employment, the hearing testimony reveals that claimant’s actions were  in keeping  with a longstanding practice that was at least partially condoned by her former supervisor and were necessary because claimant did not have  check  writing authority… . Matter of Lopresti, 516109, 3rd Dept 7-3-13

 

Employer’s Late Request for a Hearing Could Not Be Excused

In affirming the Unemployment Insurance Appeal Board’s ruling that an employer’s request for a hearing was untimely, the Third Department noted there was no provision allowing an extension of time:

“Pursuant to Labor Law § 620 (2), an employer has 30 days from the mailing or personal delivery of a contested determination  to  request a  hearing”….  The employer acknowledged receiving the determination, but was unsure of the date of such receipt. Pursuant to the unrebutted presumption found in 12 NYCRR 461.2, the determination was deemed mailed on January 12, 2009 and received by the employer within five days thereafter. Although the employer contends that the admittedly late written request for a hearing was due to law office failure, “the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no  provision permitting an extension of time in which an employer can request a hearing”… . Matter of Agarwal, 515007, 3rd Dept 7-3-13

 

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Participation in Program Can Be Delayed Until Close to Release Date

In affirming Supreme Court, in the face to the inmate’s request that he be placed in the sex offender counseling and treatment program (SOCTP) in 2015, the Third Department determined  the inmate’s participation in the program could be delayed until 2023, 36 months before his conditional release date:

An inmate’s evaluation by a case review team  under  Mental  Hygiene  Law  §  10.05 is triggered by notice to the Office of Mental  Health that the inmate  is “nearing anticipated release,” which is to be provided at least 120 days prior to such  “anticipated release” (Mental Hygiene  Law  §  10.05 [b]). In accordance with the foregoing, DOCCS has developed guidelines for administering sex offender treatment programs throughout the state. The guidelines recognize the need to allocate limited resources and provide that inmates shall be placed in sex offender treatment programs “as they get closer to their release date.”  Matter of Wakefield, 515002, 3rd Dept 7-3-13

 

Parole Board Should Have Used Risk Assessment Instrument

The Third Department determined an inmate was entitled to a new hearing on his request for discretionary parole release because the Board did not use the required written procedure for risk assessment:

[The inmate argued] the Board improperly failed to utilize a “COMPAS Risk and Needs Assessment” instrument in connection with the relevant amendments to Executive Law § 259-c (4), which became effective October 1, 2011 (see L 2011, ch 62, § 49 [f]). Significantly, Executive Law § 259-c (4) requires that the Board “establish written procedures for its use in making parole decisions as required by law,” and the Board acknowledges  that the statute requires it to incorporate risk and needs principles into its decision-making process. According to the record, the Board was trained in the use of the COMPAS instrument prior to petitioner’s hearing. Moreover, the Board acknowledges that it has used the COMPAS instrument since February 2012 and will use it for petitioner’s next appearance. Under these circumstances, we find no justification for the Board’s failure to use the COMPAS instrument at petitioner’s October  2011  hearing. Matter of Garfield, 515986, 3rd Dept 7-3-13

 

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Criteria for Review of Planning Board’s SEQRA Determination and Zoning Board’s Granting a Variance

In upholding the approval of a site plan, the Third Department determined the planning board met the requirements of the State Environmental Quality Review Act (SEQRA) and zoning board properly granted a height variance. In explaining the criteria for both reviews, the Third Department wrote:

“‘Judicial review of an agency determination under SEQRA is limited to whether the [lead] agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination’….   “While judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to ‘weigh the desirability of any action or [to] choose among alternatives'”….  The lead agency’s determination will only be annulled if it is arbitrary, capricious or unsupported  by  the evidence (see CPLR  7803  [3];…).     * * *

The [zoning board’s] determination to grant the variance is also valid.  In determining whether to grant a variance, the local zoning board must “‘engage in a balancing test, weighing the proposed  benefit to [the applicant] against the possible detriment to the health, safety and welfare of the community, as well as consider the five statutory factors enumerated in Town Law § 267-b (3)'”….  “Local zoning boards have broad discretion in considering applications for variances, and  judicial review is limited to determinating whether the action taken by the board was illegal, arbitrary or an abuse of discretion”….  Matter of Schaller, 515824, 3rd Dept 7-3-13

 

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