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Five-Day Time-Limit On Motion to Dismiss Based Upon Erroneous Information Provided by Prosecutor to Defendant Which Caused Defendant to Refrain from Testifying Before the Grand Jury

The Third Department, in a decision by Justice Peters, reversed County Court’s dismissal of an indictment based on the prosecutor’s (erroneously) telling the defendant he would be subject to cross-examination about a pending charge if he chose to testify before the grand jury.  There is a five-day time limitation for a motion to dismiss on that ground.  Defendant’s motion was deemed untimely:

We agree with the People that County Court erred in dismissing the indictment on the ground that defendant was deprived of his statutory right to testify before the grand jury. County  Court ruled that the prosecutor’s misstatement of law with respect to the questioning of defendant about  the unrelated pending  charge  for purposes  of  impeaching  his credibility caused defendant to withdraw  his request to testify before the grand jury, thereby  effectively depriving him  of  his right to testify under CPL 190.50 (5). Any alleged violation of that right, however, must be raised by  a motion to dismiss the indictment, pursuant to either CPL 170.50 or 210.20, no later than five days after arraignment on the indictment or such challenge will be deemed waived … .  People v Sutherland, 105155, 3rd Dept 3-28-13

 

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Failure to Verify Weight of Cocaine May Constitute Ineffective Assistance

In a decision by Justice Lahtinen, the Third Department determined the defendant had raised a question whether he was afforded ineffective assistance of counsel because counsel did not independently verify the weight of the cocaine he was charged with possessing.  The matter was sent back to the motion court for a hearing on defendant’s CPL 440 motion to vacate his conviction.  The Third Department wrote:

While failing to independently verify the weight of drugs does not necessarily  constitute  ineffective assistance …, this record contains sufficient factual issues as to whether  defendant  was  affirmatively given incorrect information by his counsel on an issue assertedly important in his decision to accept the plea and, as such, a hearing is required on his claim of ineffective assistance of counsel … People v Johnson, 103457, 3rd Dept 3-28-13

 

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1983 Action Against Department of Corrections Is Not Brought in the Court of Claims

The Third Department, in a decision by Justice Garry, reversed Supreme Court’s dismissal of a 1983 action against employees of the Department of Corrections and Community Supervision challenging a urinalysis report:

Supreme Court found that it lacked jurisdiction based upon Correction Law § 24, which requires that actions alleging negligence by state correction officers be commenced in the Court of Claims; however, it has been established that this provision may not be applied to bar actions brought pursuant to 42 USC § 1983 … . Carrington v Moore, 513818, 3rd Dept 3-28-13

 

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Representation of Co-defendants by Attorneys In Same Firm Constituted Ineffective Assistance

Defendant brought a motion pursuant to Criminal Procedure Law Article 440 to vacate his conviction on the ground that he was deprived of effective assistance of counsel.  Defendant’s attorney was “of counsel” to the law firm of the attorney who represented a co-defendant.  The co-defendant agreed to testify against the defendant in return for a lesser sentence.  Ultimately the defendant pled guilty.  In reversing the judgment of conviction, the Third Department, in a decision by Justice Stein, wrote:

When a single attorney or multiple attorneys associated with the same firm simultaneously represent clients in a criminal matter, “if the clients’ interests actually conflict, and if the defendant has not waived the conflict, the defendant is deprived of the effective assistance of counsel”… People v Lynch, 104852, 104945, 3rd Dept 3-26-13

 

Injury to Officer from Collapsing Stretcher Deemed Accidental

The Third Department annulled a determination denying a police officer’s claim for accident disability benefits.  The officer was injured when a wheeled stretcher collapsed.  The Third Department determined the collapse of the stretcher was not a foreseeable consequence of the officer’s ordinary duties and, therefore, constituted an accident.  In the Matter of Scharp v DiNapoli, 515287, 3rd Dept. 3-21-13

 

Injuries from Subduing Mentally Disturbed Person Not Accidental

In confirming the denial of a police officer’s application for accidental disability retirement benefits, the Third Department noted that the injuries suffered when subduing a mentally disturbed person were the result of a risk inherent in the duties of a police officer and did not constitute “a sudden, fortuitous, out of the ordinary and unexpected event that [did] not result from an activity undertaken in the performance of regular or routine employment duties” … . In the Matter of Carpenter v DiNapoli, 515251, 3rd Dept. 3-21-13

 

Worker’s Claim Not “Truly Closed” So As to Preclude Further Proceedings 

The Third Department reversed the finding of the Worker’s Compensation Board that the claimant’s knee injury case had been “truly closed” in 2009, more than 18 years after the original injury.  Worker’s Compensation Law section 123 prohibits an award of benefits “after a lapse of eighteen years from the date of the injury … and also a lapse of eight years from the date of the last payment of compensation” … .  Knee replacement surgery had been authorized in 2009.  “Considering the nature of the surgery being requested, and the fact that medical examinations of claimant in … 2008 revealed that claimant had a moderate partial disability …, the Board’s conclusion that no further proceedings were contemplated in … 2009 when surgery was authorized is dubious ….”.  In the Matter of Riley v P & V Sadowski Construction, 515259, 3rd Dept. 3-21-13

 

Factual Sufficiency of Indictment Is Non-Jurisdictional Defect

The Third Department noted that the factual sufficiency of an indictment is a non-jurisdictional defect which does not survive a guilty plea.  People v Cruz, 104251, 3rd Dept. 3-21-13

 

Lyme-Disease Disabilities Recognized

In an opinion by Justice Peters, the Third Department upheld the determination of the Workers’ Compensation Board that the claimant, who was bitten by a tick, had established a claim for Lyme disease and was entitled to compensation for “motor neuron disease, as well as consequential anxiety and stress disorder.”  In the Matter of Bailey v Ben Ciccone, Inc., et al, 515309, 3rd Dept. 3-14-13

 

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Refusal to Allow Carrier to Call Witnesses Warranted Reversal

n an opinion by Justice Rose, the Third Department reversed the decision of the Workers’ Compensation Board because the Workers’ Compensation Law Judge refused to allow the carrier to further develop the record (by calling witnesses). The Court stated:  “It is axiomatic that both the claimant and the employer or its workers’ compensation carrier are entitled to introduce witnesses in compensation proceedings…”.  In the Matter of Mason v Glens Falls Ready Mix, et al, 514744, 3rd Dept. 3-14-13

 

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