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Victim’s Mother Should Not Have Been Allowed to Speak at Sentencing Because Defendant Convicted Only of Possession of Weapon, Not the Killing of the Victim/Failure to Inform Defendant of Pending Criminal Charges Against Prosecution Witnesses Not Error

The Third Department vacated defendant’s sentence because the victim’s mother was allowed to speak at sentencing.  Defendant was convicted only of possession of a weapon and not the killing of the victim.  The Third Department also noted that the failure to inform the defendant of pending charges against three prosecution witnesses was not a Rosario violation and was not otherwise required under the facts:

…[W]e find that County  Court abused  its discretion in allowing [the victim’s] mother  to speak at the sentencing hearing. There is no victim of the crime upon which defendant was convicted, as criminal possession of a weapon in the third degree requires only the possession of a firearm by  a person previously convicted of a crime … . Here, defendant’s conviction upon this charge was supported by evidence wholly separate from the circumstances surrounding [the victim’s] death, as [a witness] testified that he had provided the handgun to defendant the day prior.It was thus error to allow the mother to give a statement in which she described defendant as a “killer” who “got away with murder.” Moreover, we find merit in defendant’s contention, though not preserved …, that despite promising it would not consider the mother’s statement in imposing sentence, County Court may have considered the homicide charges when it sentenced him to the statutory maximum prison sentence of 3½ to 7 years.    As defendant contends, from a review of the sentencing transcript, it appears that the court improperly attributed guilt for [the victim’s] death to him.  *  *  *

The People’s failure to inform defendant of criminal charges pending against three prosecution witnesses does not constitute a Rosario violation … .  We  further note that two of these individuals did not  testify at trial…, and  disclosure regarding the disorderly conduct charge against the third …was not statutorily required, as the People were unaware  of that recent charge at the time of trial (see CPL 240.45 [1] [c];…).    Contrary to defendant’s contention, it is not reasonable under the circumstances here presented to impute knowledge of that pending charge to the entire District Attorney’s office.  People v Sheppard, 103880/104958, 3rd Dept, 6-20-13

 

Custody Grant to Grandmother, Rather than Father, Okay

After mother had been found to have neglected her child, the Third Department, over a two-justice dissent, affirmed the grant of custody to grandmother, as opposed to father:

“It is fundamental that a biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an  extended period of  time  or other  extraordinary circumstances”….    The relevant factors to be considered in determining whether extraordinary circumstances exist include “‘the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role'”… .   It is the nonparent’s burden to establish extraordinary circumstances …and, when that burden is met, custody is determined based upon the child’s best interests…. Matter of Marcus CC v Erica BB…, 514433, 3rd Dept, 6-20-13

 

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People’s Expert Was Not Qualified to Testify About “Reverse Extrapolation” in DWI Prosecution/”Reverse Extrapolation” Is an Accepted Theory However

In this DWI prosecution, the Third Department determined the People’s expert was not qualified to offer testimony about “reverse extrapolation,” but that the theory itself was sound:

[We reject defendant’s generalized challenge to] the  theory  of  reverse extrapolation – the process by which an expert, taking into consideration, among other  things, an individual’s known  BAC at a particular point  in time, renders  an  opinion  as  to  the  individual’s BAC at an earlier point in time. Assuming the expert in question is qualified and a proper foundation has been laid for such opinion, reverse extrapolation testimony may be….  Here, however, the People failed to lay a proper factual foundation for [the expert’s] testimony and, therefore, defendant’s objection in this regard should have been sustained.  People v Menegan, 105337, 3rd Dept, 6-13-13

 

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Witness’ Offering Testimony About a “Jailhouse Confession” in Unrelated Case May Constitute Brady Material

In affirming the defendant’s conviction, the Third Department determined a witness’ [Henry’s] agreement to testify about a “jailhouse confession” in an unrelated case may have constituted Brady material in defendant’s case because she also entered an agreement to testify about defendant’s “jailhouse confession.”  The Court determined reversal was not required because the potential Brady error was harmless under the facts:

“….[A]ssuming, without deciding, that the full terms of Henry’s cooperation agreement – including those aspects pertaining to the other matter – were Brady material subject to disclosure, reversal is not required.   Where, as here, nondisclosure follows the defense’s specific request for materials, evidence is deemed material and reversal is required only “if there is a ‘reasonable possibility’ that, had that material been disclosed, the result would have been different”… . People v Johnson, 104919, 3rd Dept, 6-13-13

 

Carrier’s Video Surveillance of Employee Disallowed Because It Was Not Disclosed

The Third Department affirmed the Workers’ Compensation Board’s determination that video surveillance of the employee was properly excluded from the hearing because the existence of the surveillance by the carrier had not been previously disclosed:

It is well established that an employer or carrier must disclose the existence of surveillance and investigation materials to a claimant prior to the claimant’s testimony … . This obligation serves “to  limit the gamesmanship which might otherwise occur”… . While routine questions …regarding claimant’s return to work may not trigger a carrier’s obligation to disclose the existence of these items…, we note that, here, the carrier specifically prompted this line of questioning …at the end of the hearing.  The surveillance materials were thus properly precluded, as the carrier had the opportunity to disclose their existence before prompting the [questioning] and before the claimant testified about returning to work… . Accordingly, contrary to the carrier’s argument, the Board’s decision to preclude the carrier’s surveillance materials did not deviate from its previous decisions and was  not arbitrary and capricious… .  Matter of Morelli, 515964, 3rd Dept, 6-13-13

 

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Collective Bargaining Agreement Did Not Allow Private Suit Against Employer

After a member of the Faculty Association (FA) decided not to continue with a college employee’s grievance, the employee sued the college directly.  In affirming the dismissal of the employee’s private suit (because the suit was not allowed by the collective bargaining agreement (CBA)), the Third Department wrote:

“As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract”….  Exceptions include where the collective bargaining agreement grants an employee a right to sue directly or where the union fails in its duty of fair representation … .  Plaintiff acknowledges that he is not alleging that FA breached its duty of representation.  He contends, however, that, under the CBA, decisions related to promotions are excepted  from the grievance procedure and, thus, he can pursue an action directly against defendants. The ultimate decision about a promotion is not subject to a grievance under the CBA. Nonetheless, the lengthy procedures an associate professor must follow over several years to become eligible for consideration of a promotion to full professor are set forth in the CBA and are not explicitly excepted  from  the grievance process. It is the purported failure by defendants to follow these promotion procedures that plaintiff challenges, and the CBA does not carve out a separate right regarding these procedures that can be enforced by an  employee directly against defendants … .  Altman v Rossi, 515888, 3rd Dept, 6-13-13

 

Employee’s Submission of Amended Time Card Did Not Constitute Misconduct

In affirming the Unemployment Insurance Appeal Board’s finding the employee did not commit “misconduct” which justified the denial of benefits, the Third Department wrote:

“Whether a claimant lost his or her employment through disqualifying  misconduct  presents  a  factual  issue  for the  Board, and  its resolution thereof will not  be  disturbed if supported  by substantial  evidence”  ….   Significantly, “not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct”  ….   Here, contrary to the employer’s  argument,  the  Board  was  free  to  credit  claimant’s testimony that she performed work for the employer while waiting in the  parking  lot between  7:30  a.m. and  8:00  a.m…..   Inasmuch  as substantial evidence supports  the  Board’s  conclusion  that  claimant’s  isolated “submission  of the  corrected time  sheet  was  an  act of poor judgment,”  we  find no  basis to disturb the  Board’s ruling that claimant’s  conduct  did  not  rise to  the  level of  disqualifying misconduct… .  Matter of Nangreave…, 515686, 3rd Dept, 6-13-13

 

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Evidence of Loss Based Upon Interference with Property Owner’s Ability to Extract Gas by Hydrofracking Disallowed as Speculative

The Third Department affirmed Supreme Court’s determination that respondents’ expert would not be allowed to testify at trial in this condemnation proceeding.  Petitioner brought the condemnation proceedings to obtain perpetual easements for underground gas storage in the “Oriskany Sand” beneath the surface of the land owned by the respondents.  The respondents hired a geologist to testify that the easement will interfere with any future attempts to extract gas by hydrofracking and sought compensation for the claimed lost gas-development rights.  The Third Department wrote:

The  extent to which a  condemnation limits a  claimant’s property rights is determined  by  the language  used  in the appropriation and the underlying purpose of the taking, and  “[t]he quantum of the title to be taken will not be extended by implication”….Here, petitioner’s easement  explicitly reserves  to  respondents  “the right to grant oil, gas and other mineral rights to others in formations other than the Oriskany Sand” and limits that reservation of rights only by  precluding respondents  from “grant[ing] or convey[ing] gas  storage rights” (emphasis  added) that interfere with petitioner’s easement. * * *

If …hydrofracking in the Marcellus formation does eventually prove to pose an unacceptable risk to petitioner’s storage space – a claim that petitioner does not now make – it may choose at that time to undertake appropriate measures  to acquire whatever  additional rights may prove to be necessary, and, of course, to compensate the affected landowners   appropriately. As petitioner has not yet made any such acquisition, the court properly precluded respondents from presenting evidence on their claims relative to development rights in the Marcellus formation. Matter of Central N.Y. Oil & Gas Co., L.L.C. (LaDue), 515347, 3rd Dept, 6-13-13

 

 

Inmate’s “Employee Assistant” Did Not Provide Meaningful Assistance in Preparation of Inmate’s Defense

In annulling the determination, the Third Department held that the inmate’s employee assistant did not provide meaningful assistance in the preparation of the inmate’s defense:

We agree with petitioner that meaningful employee assistance was not provided in accordance with 7 NYCRR 251-4.2 in order for him to prepare a defense. Although petitioner requested that 19 potential inmate witnesses be interviewed, the record reveals no effort by  the employee  assistant to interview the potential inmate  witnesses, who  were  not only identified but, according to the misbehavior report, were present during the alleged incident. The employee assistant should have interviewed the witnesses and reported back to petitioner with the results of those efforts (see 7 NYCRR 251-4.2); moreover, the Hearing Officer made no attempt to remedy the inadequacies when petitioner raised the issue at the administrative hearing… . Matter of Canty v Fischer, 515267, 3rd Dept, 6-13-13

 

“Safety Consultant” Liable for Failure to Maintain Safe Work Site

In upholding a jury verdict, the Third Department determined there was sufficient evidence to support the jury’s finding that a safety consultant was liable under Labor Law 241 (6) for failing to maintain a safe work site:

Labor Law § 241 (6) “‘requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor'”…. Although a safety consultant generally is not liable to an injured worker under the Labor Law…,it is not the title that is dispositive, but whether such defendant had sufficient supervision and control over the activity that resulted in the injury….  We have previously stated that “[s]ubcontractors may be liable as agents under Labor Law § 241(6) when they have been specifically contractually delegated the duty or obligation to correct unsafe conditions or maintain work site safety”… .

The contract …set forth that a representative of defendant would be at the work site daily, make inspections, conduct safety meetings and have authority to require “immediate corrective action for imminent danger situations.” Defendant’s representative was continuously at the site throughout the project, and he exercised his power on several occasions prior to the accident by stopping work and requiring defendant to take specific precautions or actions. He was present when the accident occurred.  Leszczynski v Town of Neversink, 514876, 3rd Dept, 6-13-13

 

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