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Derivative Severe Abuse Finding Reversed

In reversing Family Court’s finding of derivative severe abuse, the Third Department explained the proof requirements as follows:

…[W]e agree with respondent that Family Court erred in concluding  that Nicholas and  Carolina were derivatively severely abused by respondent. As the Court of Appeals recently clarified in Matter of Dashawn W. (21 NY3d 36 [2013]), a determination of severe abuse requires that the court find, by clear and convincing evidence, as relevant here, not only that “the child [is] an  abused  child as a result of reckless or intentional acts of the parent committed under circumstances evincing a depraved  indifference to human  life, which  result in serious physical injury to the child as defined in [Penal Law  § 10.00 (10)]” (Social Services Law  §  384-b  [8] [a] [i]), but  also that petitioner “made  diligent efforts to encourage  and strengthen the parental relationship, including efforts to rehabilitate the respondent, when such efforts will not be detrimental to the best interests of the child, and  such  efforts have been unsuccessful and are unlikely to be successful in the foreseeable future” (Social Services Law  §  384-b  [8] [a] [iv]). Here, inasmuch as Family Court did not make either of the foregoing determinations and the evidence in the record does not enable us to do so, a finding of severe abuse against respondent cannot be sustained.  Matter of Nicholas S…, 511568, 3rd Dept 6-27-13

 

Parole Board Could Require No-Contact-with-Wife for One Year as a Condition

In upholding the Board of Parole’s determination that, as a condition of release on parole, petitioner, who had attacked his wife in the past, must refrain from any contact with his wife for one year and complete a domestic violence offenders program, the Third Department wrote:

…[T]the Board is vested with discretion to determine the conditions upon which an inmate is released, and its decision in that regard is not subject to judicial review if made in accordance with the law (see Executive Law §§ 259-c [2]; 259-i [5];…). Petitioners argue that the conditions at issue are unlawful, arbitrary and capricious, in that they lack a sufficient factual basis in the record and improperly impair their fundamental right to maintain a marital relationship. We disagree. Parole conditions that  are  “rationally  related  to  the inmate’s criminal history, past conduct and  future chances of recidivism” are not arbitrary and capricious ….   Moreover, petitioner’s fundamental rights to associate and marry may be restricted by  parole  conditions  that  are  “reasonably  related  to legitimate  penological  interests” … .  George v NYS Department of Corrections …, 516126, 3rd Dept 6-27-13

 

Board’s Determination Business Was Claimant’s “Employer” Reversed

In reversing the Unemployment Insurance Appeal Board’s determination that “Quick Change” was claimant’s employer and therefore was liable for contributions to unemployment benefits, the Third Department noted:

Here, Quick Change did not screen claimant but, rather, retained his services based upon his reputation in the industry. Claimant was  free to accept or reject an  assignment  from  Quick Change,  was  not prohibited  from  working  for others,  did  not  sign a written contract and  received no  fringe benefits. Although Quick Change arranged for claimant to begin working at a specific time and place designated by the client, the work schedule thereafter  was  dictated  solely by  the  client, and  a  representative from  Quick Change  was  never present at the job site. Quick Change did not train claimant or instruct him in any aspect of how to perform his work, and claimant was not required to report to Quick Change in any manner. Claimant furnished his own supplies and received no reimbursement from Quick Change. Once the work was completed, claimant submitted invoices to Quick Change for payment. Quick Change set the rate of pay; however, it was based upon the established market  for such  services. Moreover, while the owner of Quick Change hypothesized that she would likely pay claimant in the event that the client did not pay, this was based  upon  a sense of personal obligation rather than a  contractual  commitment.  In the Matter of Richins…, 515330, 515370, 3rd Dept 6-27-13

 

Benefits Awarded for Psychic Injury (Stress) Affirmed

The Third Department affirmed an award of Workers’ Compensation benefits based on psychic injury (stress).  Due an audit of the travel reimbursement policies of the employer, the employee (claimant) was required to pay taxes on “income” of $100,000 (the reason for the employee’s psychic injury).  The Third Department explained the analytical factors as follows:

A  workers’ compensation claim for psychic injury stemming  from work-related  stress is not  compensable  if it was “a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good  faith by the employer”… .  Claimant, however, was not accused of wrongdoing by the employer.    Instead, her mental injuries stemmed from the serious financial liabilities she incurred as a result of a review of the employer’s reimbursement practices….[W]e  will not disturb the Board’s determination that the stress that claimant experienced was greater than that generally experienced by similarly situated workers in a normal work environment… .  Matter of Brittain v NYS Insurance Dept, 515279, 3rd Dept 6-27-13

 

Statute of Limitations Defense in Article 78 Proceeding Waived Because Not Raised in Answer or Pre-Answer Motion to Dismiss

In reversing Supreme Court’s dismissal of an Article 78 proceeding as untimely, the Third Department determined the statute of limitations defense was waived because it was not raised in the answer or in a pre-answer motion to dismiss:

Petitioner contends that Supreme Court erred in granting respondent’s oral motion to dismiss the petition based upon statute of limitations grounds inasmuch as respondent  failed to timely raise this defense/objection in either its verified answer or a pre-answer motion to dismiss. We agree. It is well established that an aggrieved party must raise a statute of limitations defense/objection in either the answer or a pre-answer motion  to  dismiss  (see  CPLR  3211  [e]; 7804  [f];…). A pre-answer motion  to dismiss based  upon  a statute of limitations defense/objection necessarily “must  be  made  prior to the time in which to serve an  answer, and the failure to do  so will result in a waiver of the defense unless [thereafter] raised in the responsive pleading”… .  Matter of Kowalczyk v Village of Monticello, 515968, 3rd Dept 6-27-13

 

Bed and Breakfast Not Entitled to Homeowner’s Exemption

The Third Department determined the owner of a bed and breakfast was not entitled to the homeowner’s exemption from the Labor Law:

…[A]lthough “[b]oth Labor Law § 240 (1) and § 241 impose nondelegable duties upon contractors, owners and their agents  to comply  with  certain safety practices for the protection of workers engaged in various construction-related activities . . . [,] the  Legislature has carved  out  an  exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work”….    That exemption, however, “is not available to an owner who uses or intends  to use  [the] dwelling  only  for commercial  purposes”… .  Bagley v Moffett, 515914, 3rd Dept 6-27-13

 

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County Court’s Suppression of Statements and Fruits of Search Reversed

The Third Department reversed County Court’s suppression of defendant’s statements and County Court’s finding that defendant had not voluntarily consented to the search of his car (both based on the absence of Miranda warnings).   The Third Department determined a reasonable person innocent of a crime would still have felt he was free to leave (i.e., that he was not in custody) after his failure of field sobriety tests and a negative alcosensor test.  The Third Department further noted that the failure to provide Miranda warnings would not necessarily render a consent to search involuntary:

The court ….overlooked the settled proposition that “[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda” … .The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory…. The Troopers’ inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody….   In our view, the Troopers’ observations of defendant’s condition justified the further  detention  for the  limited  purpose  of  investigating whether  he  was  operating his motor  vehicle in an  impaired condition… .  People v Brown, 105134, 3rd Dept 6-27-13

 

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Failure to Fully Inform About Postrelease Supervision Required Reversal

After noting that a waiver of appeal does not preclude a challenge to the voluntariness of a guilty plea, the Third Department reversed because the defendant was not fully informed about the promised duration or potential range of postrelease supervision:

Here, the record reflects, as the People concede, that while the plea agreement included a specific negotiated sentence and a mention of postrelease supervision, defendant was never advised by the court of either a promised specific duration or the potential range of the mandatory postrelease supervision component prior to sentencing. Accordingly, his decision to plead guilty was not a knowing, voluntary and intelligent one and, therefore, the judgment of conviction must be reversed… . People v Brown, 105107, 3rd Dept 6-27-13

 

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Ineffective Assistance of Counsel Required Reversal

In reversing the defendant’s conviction, the Third Department determined the defendant did not receive effective assistance of counsel:

Here, defense counsel did not give an opening statement. The People produced five witnesses and, during their testimony, there were no objections despite some objectionable questions. The  People’s  exhibits  were  received  without  objection,  including one  after proof  was  closed. Cross-examination, when conducted, was cursory and elicited little information that  would  be  useful or pertinent to a defense strategy. No witnesses were called on behalf of defendant.    Defense counsel’s summation,  which  was  only four sentences, started with the unhelpful comment  that “the reason we are here today is because [defendant] was unable to successfully  enter  a  plea  of  guilty by  way  of  providing an adequate  colloquy,”  and  added  little else  other  than  the conclusory request  for “the  [c]ourt  to  consider  this matter simply in regard to whether  there is reasonable doubt.” With no opening statement, no witnesses called and a feckless summation, counsel’s strategy  of  defense  is not apparent. In  addition,  pretrial efforts to  suppress  or  limit evidence – such as defendant’s statement to police and evidence about  uncharged  conduct  –  were  not  pursued. People v Bush, 105005, 3rd Dept 6-25-13

 

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Defendant’s Being in the “General Area” Where Was Weapon Was Found and Defendant’s DNA on the Weapon Was Not Enough to Support Possession Conviction

The Third Department reversed defendant’s conviction for criminal possession of a weapon as against the weight of the evidence.  The evidence demonstrated that the defendant was in the general area where the gun was found and the defendant could not be excluded from the mixed DNA found on the gun.  The court wrote:

No one saw defendant with the gun, he was just near where it was found and his DNA was on it. The officer testified that defendant was 20 to 30 feet past the house, whereas Fox [defendant’s companion] was off his bicycle and appeared to be doing something near the house. The officer further testified that he found the gun in front of that house, and vaguely stated that defendant  was  in “the general area” where the gun was found. This does not prove that defendant possessed the gun on Sheridan Avenue at that time. Based  on  the  testimony  of the  officer and  the  forensic scientist, it is possible that Fox – who  the officer had seen directly in front of the house – could have had the gun and left it on the ground at that time, and defendant’s DNA could have been there from handling  it previously (which  may  prove  that defendant handled the  gun at some  point, but not  at the date and time alleged in the  indictment) or through  secondary  transfer (i.e., if Fox  touched defendant  and  then  the  gun,  transferring some  of defendant’s DNA onto the gun). Because this scenario is equally likely to have occurred, we cannot say that the weight of the evidence supports the verdict finding defendant guilty  ….  People v Graham, 104177, 3rd Dept 6-27-13

 

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