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Matter Remitted; County Court Did Not Follow Procedure Mandated by Drug Law Reform Act

In remitting the matter, the Third Department explained County Court failed to follow the procedure mandated by the Drug Law Reform Act:

The record contains no written order denying defendant’s application for resentencing and setting forth County  Court’s “findings of fact and the reasons for such order” as is required under the Drug Law Reform Act (L 2004, ch 738, § 23). Absent the necessary written order, we are without jurisdiction to consider defendant’s appeal … .  People v Allen, 104967, 3rd Dept, 5-23-13​

 

Transfer to Another County for Probation Did Not Divest Sentencing Court of Jurisdiction Over Defendant’s Violation of His Intermittent Sentence​

In this case Columbia County Court sentenced defendant to intermittent imprisonment in the Columbia County jail and five years probation in Greene County where defendant resided.  After defendant failed to report to Columbia County Jail, County Court revoked the intermittent sentence and sentenced defendant to four months. Defendant contended Columbia County Court had relinquished jurisdiction by transferring the probation term to Greene County.  The Third Department disagreed:

Defendant’s reliance on CPL 410.80 – which provides for transfer of probation supervision by the sentencing court to the Probation Department in the jurisdiction (county) where  the defendant  resides at sentencing –  is misplaced … . Defendant was not charged  with violating probation but, rather, was  alleged to have violated his intermittent sentence of imprisonment.  The transfer in CPL  410.80 (2) of “all powers  and  duties” of the sentencing court over supervision of probationers to the receiving court does not, as defendant argues, divest the sentencing court of its express jurisdiction to modify  or revoke a sentence of intermittent imprisonment pursuant to Penal Law § 85.05 (1) (b) … . People v Dick, 104424, 3rd Dept, 5-23-13

 

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Children’s Hearsay Alleging Abuse by Father Was Not Corroborated; Change in Custody Should Not Have Been Granted

In reversing Family Court’s grant of the mother’s petition to modify a prior order of custody, the Third Department determined the children’s hearsay statements alleging abuse by the father was not corroborated, and therefore could not form the basis of a modification of custody:

Inasmuch as Family Ct Act § 1046 (a) (vi) is applicable to custody proceedings based upon allegations of abuse, the children’s out-of-court statements are excepted from the hearsay rule, but must be corroborated …. *  *  * Because the  children’s out-of-court statements were not corroborated, Family Court’s finding of a change in circumstances lacks a sound and substantial basis in the record.  Matter of Zukowski v Zukowski, 514074, 3rd Dept, 5-16-13

 

Hearing Officer’s Refusal to Call Witness Required Expungement of Relevant Charges

The Third Department determined the relevant charges must be expunged because the hearing officer refused to call a witness, a violation of the inmate’s constitutional right:

…[T]he Hearing Officer erroneously refused to call a correction officer who witnessed petitioner’s behavior while being escorted to his cell. Inasmuch  as petitioner was deprived of his constitutional right to call a witness with regard to that incident, expungement of the related charges is required… .  Matter of Cahill v Prack, 515216, 3rd Dept, 5-16-13

 

Failure to Explain Why Inmate’s Roommates Allegedly Refused to Testify Required Annulment​

Because no explanation was provided to explain the requested witnesses’ (the inmate’s roommates’) alleged refusal to testify, the Third Department annulled the determination:

Petitioner requested the testimony of three witnesses who shared a room with him. The Hearing Officer stated that inmate refusal forms for all three had been signed by the employee assistant, but not by the inmates, and that no explanations were given for their refusal to testify. Because the record does not contain any reason for the witnesses’ refusal or indicate that the Hearing Officer attempted to verify their refusal, petitioner’s regulatory right to call witnesses has been violated (see 7 NYCRR 254.5 [a]; ….).  Matter of Sorrentino v Fischer, 515214, 3rd Dept, 5-16-13

 

 

Hearing Officer’s Refusal to Provide Requested Documents Required Annulment

The Third Department determined the failure to provide the inmate with evidence he requested required the annulment of the guilty determination:

Petitioner requested copies of  any “to/from” forms related to the incident and, despite the fact that one  of the correction officers testified to giving his account  of the events at issue in such  a  form, the Hearing Officer declined to provide petitioner a copy. Inasmuch as that document could have been relevant to formulating petitioner’s defense and effectuating his questioning of the officer, the determination must be annulled… .  Matter of Bermudez v Fischer, 514110, 3rd Dept, 5-16-13

 

Claimant’s Non-Work-Related Felony Deemed to Breach Express or Implied Duty Owed to Employer

The Third Department determined claimant was ineligible for unemployment insurance benefits because of an act constituting a felony which took place at the claimant’s home, not at work, but which generated negative publicity, breaching a duty owed to the employer (a car dealership).  The Third Department wrote:

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant lost his “employment as a result of an act constituting a felony in connection with such employment” (Labor Law § 593; see Labor Law§  597). Claimant, a car salesperson, was fired after his arrest on charges stemming from, among other things, his surreptitious videotaping of individuals who used the bathroom of his home. The charges, which generated negative publicity and numerous customer complaints, ultimately were resolved when claimant pleaded guilty to one count of unlawful surveillance in the second degree. Given the public nature of claimant’s position and the detrimental effect his continued employment could have had upon the employer’s business, the Board properly determined that claimant’s actions constituted a breach of  an  express  or implied duty owed to the employer… Matter of Engel [Commissioner of Labor], 515513, 3rd Dept, 5-16-13

 

 

Claimant Not Entitled to Benefits For Time Spent Working Out of House 

After claimant was laid off, he operated a business [Hatch Ventures] periodically out of his home.  The Third Department determined the claimant was not eligible for unemployment insurance benefits for the days he operated his business but that “recoverable overpayment and forfeiture penalty” should not be imposed because claimant did not make a willful misrepresentation with respect to his home business:

A claimant is not entitled to receive unemployment insurance benefits during the time that he or she  is not  totally unemployed (see Labor Law § 591 [1]).It has  been  held that a claimant who undertakes activities on behalf of an ongoing business is not considered to be totally unemployed even if those activities are minimal  or the business is not  profitable ….   The issue of total unemployment is a factual question for the Board, and  its determination will be  upheld  if supported by  substantial evidence….   Here, claimant admittedly performed various activities on behalf of Hatch Ventures, made business-related expenditures and received income from product sales. Notably, he  indicated that, from  June 1, 2011  until June  30, 2011, he  performed  such  activities three days  a  week  for one  hour  each  day  and  that, after July 1, 2011, he performed them one day per week for three hours.  Matter of Lewis [Copmmissioner of Labor], 515345, 3rd Dept, 5-16-13

 

 

Defendant’s Papers Deemed Insufficient to Trigger Need for Suppression Hearing

The Third Department determined the defendant’s motion papers did not demonstrate the need for a suppression hearing:

Because defendant failed to allege sufficient facts to justify a hearing, County Court did not err in summarily denying defendant’s motion for a Mapp hearing…. Motion papers seeking suppression of evidence “must state the ground or grounds of the motion and must contain sworn allegations of fact . . . supporting such grounds” (CPL 710.60 [1]).A hearing is not automatic; a court may summarily deny the motion if the papers do not allege a legal basis for suppression  or if the factual allegations do not as a matter of law support any alleged ground (see CPL 710.60 [3];…) “[F]actual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and [the] defendant’s access to information”….  Here, defendant made his motion after he was supplied with the search warrant application, supporting documents and return, as well as discovery. He had resolved the other criminal charges that precipitated the warrant application, providing him with information related to the situation surrounding the application. In these circumstances, defendant’s bare allegation of a lack of probable cause, without any factual support, was insufficient to require a hearing …   Accordingly, the court properly determined that a hearing was not necessary to decide the motion. People v Vanness, 103553, 3rd Dept, 5-16-13

 

Proper Procedure for Resentencing Under Drug Law Reform Act Explained

The Third Department explained the proper procedure for resentencing under the Drug Law Reform Act as follows:

The Drug Law Reform Act establishes a specific procedural course that was not followed here. Upon  finding a  defendant eligible for resentencing, the court must  issue a  written interlocutory order informing the defendant of the term of imprisonment  it intends to impose, setting forth findings of fact and the reasons underlying the proposed resentence, and advising the defendant  that, unless he or she withdraws  the application or appeals from the interlocutory order, the court will vacate the original sentence and impose the proposed resentence (see L 2004, ch 738, § 23).County  Court’s failure to proceed  in this manner deprived defendant of the opportunity to carefully consider his options, including the taking of an  appeal  from  the interlocutory order.  People v Minor, 104880, 3rd Dept, 5-16-13

 

 

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