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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

 

Tape Recording Reflecting Frustration About Treatment of Muslim Inmates Did Not Warrant Punishment

The Third Department annulled the disciplinary hearing determination which found that the petitioner had engaged in prohibited “violent conduct” based on a tape recorded conversation.  After reviewing the tape, the Court ruled that the disciplinary rules prohibiting “conduct involving the threat of violence” and participation in “a work stoppage, sit-in, lock-n, or other actions which may be detrimental to the order of the facility” had not been violated. The evidence revealed only that “petitioner was agitated after incidents in which other Muslim inmates had allegedly been assaulted by correction officers. He indicated to the inmates at the meeting that they needed to do something about it and specifically mentioned ‘starting a paper trail.’ Significantly, he did not advocate violent or disorderly action.”  In the Matter of Murray, v Fischer, 514687, 3rd Dept. 3-14-13

 

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Strip Search After Controlled Buy Upheld

A warrantless search of “every part of [defendant’s] vehicle” as well as a strip search of the defendant was upheld by the Third Department.  The search of the vehicle was justified by the same evidence which provided probable cause for the arrest (a controlled drug purchase by a confidential informant).  And the strip search was justified by the failure to find narcotics or buy money in the preliminary vehicle search. “[A] strip search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing and the search must be conducted in a reasonable manner… Some of the factors that may be considered in determining the reasonableness of such a search are the circumstances of the arrest, the defendant’s nervousness or unusual conduct, tips from informants, and ‘an itinerary suggestive of wrongdoing’…”.  People v Anderson, 104220, 104447, 3rd Dept. 3-7-13

STREET STOPS, SUPPRESSION, SUPPRESS, SEARCH

Stepmother Had Right to Portion of Children’s Trust Under Spouse’s Right of Election

Petitioners were the children of the grantors of a trust and were co-beneficiaries of the trust.  The grantors of the trust were the beneficiaries’ mother and father. The mother died and respondent was the children’s stepmother.  The children moved to dismiss the objections to the trust accounting made by the respondent-stepmother on the ground she did not have standing.  In ruling the stepmother had standing pursuant to the right of election, the Third Department wrote:  …[A] revocable trust … is a testamentary substitute, subject to [the surviving spouse’s] right of election … . Where a trustee voluntarily commences judicial settlement of the account of a trust, process must be provided ‘to all persons who are entitled absolutely or contingently by the terms of the will, lifetime trust instrument or by operation of law to share in the estate’ …” .  The surviving spouse, by operation of law, was entitled to a portion of the estate, including the trust.  In the Matter of Garrasi …, 515128, 3rd Dept. 3-7-13

 

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Prisoner Must Object at Hearing to Obtain Judicial Review

A prisoner’s failure to object or raise any procedural issues before the Hearing Officer renders any such issues unpreserved for judicial review. In the Matter of Austin v Fischer, 514568, 3rd Dept. 3-7-13

 

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Failure to Determine if Witness Would Testify Required New Hearing

“It is well settled that an inmate has a conditional right to call witnesses at a disciplinary hearing provided their testimony would not jeopardize institutional safety or correctional goals… .  ‘[A] hearing officer’s actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain the requested witness’s testimony, constitutes a clear constitutional violation … .  On the other hand, where a good-faith reason for the denial appears on the record, this amounts to a regulatory violation requiring that the matter be remitted for a new hearing…”  Here the hearing officer’s failure to determine whether a retired correction officer could testify required a new hearing.  In the Matter of Morris-Hill v Fischer, 514093, 3rd Dept. 3-7-13

 

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Lack of Standing Argument Waived

In this foreclosure action, the Third Department determined failure to raise plaintiff’s lack of standing in either the answer or the pre-answer motion to dismiss the complaint constituted a waiver of the defendant’s standing argument.  HSBC Bank USA v Ashley, 513730, Third Dept. 3-7-13

 

Question of Fact Existed About Whether Lost or Destroyed Will Had Been Revoked.

A question of fact precluded summary judgment denying probate where there was evidence the decedent did not intend to revoke a will that could not be found after her death.  There is a presumption that a will that was last in decedent’s possession but can not be found after death has been revoked.  But in this case there was evidence that the decedent was, close in time to her death, taking steps to dispose of her property in accordance with her will, which expressly disinherited one of her four children.  Matter of DiSiena, et al, 515209, Third Dept. 2-28-13

 

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