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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

 

County Court’s Jurisdiction Over Crimes Committed in Other Counties, Among Many Other Issues, Explained

In a full-fledged opinion by Justice Egan, the Third Department affirmed the conviction of the director of facilities for the Schenectady City School District for arson, criminal possession of a weapon, criminal mischief and other offenses.  Among the issues (all resolved against the defendant) addressed in substantive discussions: (1) whether Schenectady County Court had jurisdiction over the counts of the indictment which were alleged to have occurred in other counties; (2) whether the jurisdictional facts were sufficiently alleged and proven; (3) severance of counts; (4) suppression of evidence found in a briefcase in an area for which a search warrant had been issued; (5) whether questions amounted to impermissible interrogation; (6) the admission of Molineux evidence; (7) whether testimony relating to non-testifying chemist’s findings in a report was a Crawford violation (a violation of the right of confrontation); (8) and the admissibility of demonstrative evidence.  With respect to the jurisdiction issue, the court wrote:

…[I]n order for prosecutorial jurisdiction to lie in Schenectady County for the extraterritorial crimes, defendant’s conduct must have “had, or was likely to have, a particular effect upon [the] [C]ounty . . . or part thereof, and [have been] performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein” ….To that end criminal conduct has a “particular effect” upon a county when the consequences thereof “have a materially harmful impact upon the governmental processes or community welfare” of that county (CPL 20.10 [4]) such that the defendant’s out-of-county conduct “expose[s] a large number of county residents to a specific harm”… .In this regard, the injury alleged must  be  “concrete and  identifiable” and of the type that can be demonstrated by proof… .  The People bear the burden of proving  that venue is proper by a preponderance of the evidence, and whether the subject county has geographic jurisdiction over each of the charged offenses presents a factual issue for the jury to resolve … .  People v Raucci, 103996, 3rd Dept 6-27-13

 

Grand Jury Proceeding Not Tainted by Excused Juror’s Statements About Having Arrested and Having Been Threatened by Defendant

The Third Department reversed County Court’s dismissal of indictments based upon a finding the integrity of the grand jury had been impaired.  A potential grand juror was excluded after stating he had arrested the defendant at least once and the defendant had threatened his family.  The Third Department wrote:

The prosecutor immediately excused this juror and instructed the remaining grand jurors to disregard and ignore the comment and to base their deliberations solely on the evidence provided by the sworn witnesses. While County Court found the prosecutor’s efforts in that regard to be inadequate, “the grand jury is presumed to have followed the prosecutor’s curative instructions, dispelling any prejudice to [] defendant”….  Furthermore, given the strength of the evidence supporting the indictments, the grand juror’s comment lacked the potential to prejudice the grand jury’s ultimate decision….   Accordingly, dismissal of the indictments was unwarranted.  People v Farley, 103105, 3rd Dept 6-27-13

 

County Court Had Jurisdiction to Correct 1999 Sentence Which Did Not Include Period of Post-Release Supervision

The Third Department noted that County Court had jurisdiction to correct defendant’s 1999 sentence, which did not include post-release supervision:

Defendant’s contention that County Court lacked jurisdiction due to an alleged unreasonable delay in correcting the sentence is without merit.    A delay in resentencing pursuant to Correction Law § 601-d is “not jurisdictional in nature and do[es] not deprive the court of the authority to correct an illegal sentence and resentence a defendant to a term of incarceration that includes a period of postrelease supervision”… . Furthermore, because defendant had not completed serving his initial sentence, the sentence was still subject to correction without invoking the protection against double jeopardy… .  People v Siler, 105042, 3rd Dept, 6-20-13

 

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