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IN A PARTIAL CONCURRENCE/PARTIAL DISSENT TWO JUSTICES WOULD HAVE REDUCED DEFENDANT’S SENTENCE TO TIME SERVED IN THE INTEREST OF JUSTICE BECAUSE OF THE EVIDENCE THAT DEFENDANT’S LIFE-EXPECTANCY AFTER REMOVAL OF A BRAIN TUMOR IS TWO TO THREE YEARS, THE DEFENDANT’S AGE AT THE TIME OF THE OFFENSE (18), AND THE DEFENDANT’S ABSENCE FROM THE ROOM WHERE THE VICTIM WAS STABBED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly declined to adjudicate defendant a youthful offender and properly denied defendant’s motion to vacate his conviction on the ground he was suffering from the effects of an undiagnosed brain tumor at the time he pled guilty. The dissenters would have reduced defendant’s sentence because defendant was 18 at the time of the robbery/murder, the shotgun he possessed was unloaded, and he was not in the room when the victim was stabbed. The neurosurgeon testified that, although defendant’s tumor had been removed and he was in remission, the cancer could return and the five-year survival rate is 36%:

From the partial concurrence and partial dissent:

With what was known at the time of the plea and sentencing, we agree with the majority that Supreme Court acted within its discretion by imposing the negotiated sentence, without according defendant youthful offender status. On the record presented, we further agree that County Court did not abuse its discretion in denying defendant’s CPL 440.10 (1) (e) motion.

That said, under the unusual circumstances of this case, we would reduce the sentence in the interest of justice. Without minimizing defendant’s actual role in the criminal incident, two facts warrant particular attention. The shotgun that defendant utilized was unloaded and defendant was not in the victim’s room when the stabbing took place. Defendant, who was 18 years old at the time of the incident, underwent a significant medical procedure in January 2014 to remove a malignant tumor from his brain. Defendant’s neurosurgeon explained that the tumor was a “very aggressive form of brain cancer” and averred that the “[u]sual median survival with such a tumor is customarily 2.3 years,” with two- and five-year survival rates of 64% and 36% respectively. As of June 2020, the neurosurgeon indicated that defendant was in remission, but noted that the tumor could recur. He further observed that defendant “is fortunate that he has not succumbed to his tumor.” Given this prognosis, and considering that defendant has been incarcerated since 2013, we would exercise our interest of justice jurisdiction to modify the sentence from 12 years to time served … . People v McGill, 2022 NY Slip Op 04762, Third Dept 7-28-22

Practice Point: County Court properly declined to adjudicate defendant a youthful offender and properly denied his motion to vacate his robbery conviction. Two justices, however, argued the defendant’s brain tumor and 2-to-3-year life-expectancy warranted reducing defendant’s sentence to time served in the interest of justice.

 

HERE DEFENDANT SET A FIRE TO CONCEAL EVIDENCE AND WAS CONVICTED OF ARSON AND TAMPERING WITH EVIDENCE; BECAUSE BOTH CHARGES AROSE FROM A SINGLE ACT, THE SENTENCES MUST RUN CONCURRENTLY (THIRD DEPT).

The Third Department determined the sentences for arson and tampering with evidence arose from a single act and, therefore, the sentences must run concurrently. Defendant had participated in tying her disabled child to a bed. When defendant returned home, the child had died. To conceal the evidence, defendant participated in setting the home on fire. Under these circumstances, the arson and tampering with evidence charges arose from a single act:

… County Court should not have imposed consecutive terms of imprisonment upon defendant’s convictions of arson in the third degree and tampering with physical evidence. … “Sentences imposed for two or more offenses may not run consecutively where, among other things, a single act constitutes two offenses” … . Given that the fire admittedly was set to conceal evidence, the arson and tampering with physical evidence convictions necessarily arose from a single act. As a result, although the terms of imprisonment imposed upon such convictions properly ran consecutively to the sentence imposed upon defendant’s conviction of manslaughter in the first degree … , the sentences imposed upon the arson and tampering convictions must run concurrently with one another … , and defendant’s sentence is modified to that extent. People v Franklin, 2022 NY Slip Op 04677, Third Dept 7-21-22

Practice Point: The defendant set a fire to conceal evidence and was charged with and convicted of arson and tampering with evidence. Because both convictions arose from a single act, the sentences must run concurrently.

 

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ONE OF THE PERSONS INVOLVED IN A VIOLENT CONFRONTATION OUTSIDE A SCHOOL THREATENED TO RETURN THE NEXT DAY WITH A GUN; A TEACHER IMMEDIATELY HELD A MEETING WHERE CALLING IN SICK THE NEXT DAY WAS DISCUSSED; 23 TEACHERS CALLED IN SICK; THAT ACTION CONSTITUTED AN ILLEGAL STRIKE PURSUANT TO CIVIL SERVICE LAW 210 (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Clark, determined that the Public Employment Relations Board (PERB) properly found that the petitioner, the Buffalo Teachers Federation, engaged in an unlawful strike in violation of Civil Service Law section 210. There was a violent confrontation between two older individuals and students outside the school at dismissal time. One of the older individuals, while fleeing the police, said he was going to come back the next day with a gun. He said “if you show up to work tomorrow, you’re to all die.” A teacher at the school, Nicole LaRusch, called an immediate meeting where calling in sick the next day was discussed. Ultimately 23 teachers called in sick. The question before the Third Department was whether there was “substantial evidence” in the record to support the PERB’s ruling the action was an illegal strike:

Civil Service Law article 14, known as the Taylor Law, provides that “[n]o public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike” (Civil Service Law § 210 [1]). The term “strike” is statutorily defined as “any strike or other concerted stoppage of work or slowdown by public employees” … . “[T]he substantial evidence standard is a minimal standard” that is “less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable” … . * * *

According to [a] teacher’s aide union representative, LaRusch stated that they were calling out sick because “the principal didn’t care about [their] safety” and that they were sending a message to “downtown” — meaning the district’s headquarters — so that they could “get resource officers in the school.” In our view, the … evidence amply supports the conclusion that, in violation of the Taylor Law, LaRusch and the 15 other absent teachers engaged in a concerted slowdown or stoppage of work as part of a coordinated effort to obtain a safer work environment … . Matter of Buffalo Teachers Fedn., Inc. v New York State Pub. Empl. Relations Bd., 2022 NY Slip Op 04680, Third Dept 7-21-22

Practice Point: 23 teachers called in sick after a person threatened to return to the school the next day with a gun and kill the teachers who showed up for work. That action was deemed an illegal strike in violation of the Civil Service Law section 210.

 

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HERE THE APPELLATE COURT SEVERED PORTIONS OF THE SEARCH WARRANT AS OVERBROAD; THE VALID PORTIONS AUTHORIZED A SEARCH OF THE PHONE FOR EVIDENCE OF CHILD ABUSE; THE SEARCH OF THE PHONE AS AUTHORIZED BY THE VALID PORTIONS OF THE WARRANT TURNED UP A VIDEO OF A RAPE; THAT VIDEO WAS PROPERLY SEIZED PURSUANT TO THE PLAIN VIEW DOCTRINE (THIRD DEPT).

The Third Department determined that the search warrant for defendant’s cell phone was overbroad in that it authorized a search for evidence of all the sex offenses listed in Article 130 of the Penal Law. But the portions of the warrant which authorized a search for evidence of sexual abuse and child pornography were supported by probable cause. In searching the phone pursuant to the valid portion of the warrant, the police found a video of defendant committing rape. That video was correctly seized under the “plain view” doctrine:

We agree with defendant’s overbreadth contention only insofar as the affidavit was insufficient to establish probable cause to search defendant’s cell phone and seize evidence related to all of the many crimes classified under Penal Law article 130 … . Notwithstanding that overbreadth, probable cause existed to search and seize photographic and video evidence from defendant’s cell phone related to his alleged June 2018 commission of the crime of sexual abuse in the first degree (see Penal Law § 130.65 [2] …). Furthermore, even though the June 2018 video itself was not child pornography as that term is generally understood under the Penal Law … , it was also reasonable for the issuing magistrate to conclude, based on the affidavit and the content of the June 2018 video, that a search of all data on defendant’s cell phone would yield additional evidence of the crime of sexual abuse, along with crimes classified under Penal Law articles 235 and 263 … . Therefore, because “the warrant [i]s largely specific and based on probable cause” … , we need only sever the overbroad portion of the warrant that directed a search for evidence of Penal Law article 130 crimes other than sexual abuse.

… [O]ur severance decision does not require exclusion of the May 2018 videos allegedly depicting him committing the crime of rape in the first degree because they are not “the fruit[s] of the invalid portion of the search warrant” … .. Rather, we find that those videos were properly seized pursuant to the plain view doctrine, which authorizes law enforcement to seize an item in plain view if “(i) they are lawfully in a position to observe the item; (ii) they have lawful access to the item itself when they seize it; and (iii) the incriminating character of the item is immediately apparent” … . People v Alexander, 2022 NY Slip Op 04585, Third Dept 7-14-22

Practice Point: Here portions of the search warrant for defendant’s cell phone were invalid as overbroad (the warrant authorized a search for evidence of all the sex offenses listed in Article 130 of the Penal Law). The Third Department “severed the overbroad portions” and determined the valid portions authorized the search for evidence of sex abuse. In conducting the search pursuant to the valid portions of the warrant, a video of a rape was found. That video was properly seized pursuant to the plain view doctrine.

 

IF PETIONER HAD PURCHASED CONCRETE AS A PART OF A SERVICE FOR THE INSTALLATION OF CAPITAL IMPROVEMENTS, THE PURCHASE WOULD HAVE BEEN EXEMPT FROM SALES TAX; BUT PETITIONER PURCHASED THE CONTRACT IN “RAW” FORM AND PETITIONER’S EMPLOYEES AND SUBCONTRACTORS USED IT TO BUILD CAPITAL IMPROVEMENTS; THE PURCHASE OF THE CONCRETE WAS THEREFORE SUBJECT TO SALES TAX (THIRD DEPT).

The Third Department determined the petitioner was not entitled to an exemption from sales tax on concrete purchased from suppliers. The work to install the capital improvements made from the concrete was done by petitioner’s employees and subcontractors. Because the concrete suppliers merely supplied the concrete in raw form, the sales tax exemption for the installation of capital improvements did not apply:

The purchase would be exempt from sales tax … if it was not for the concrete itself and was instead for the service of “installing property which, when installed, will constitute an addition or capital improvement to real property, property or land” … . * * *

… [T]he hearing testimony of petitioner’s own president left little doubt that it was petitioner’s employees or its subcontractors, and not its concrete suppliers, who were installing capital improvements. Petitioner’s president testified, in particular, that petitioner’s employees or subcontractors performed all preparatory work for the installation, doing necessary excavation work, building the formwork and flatwork to shape the poured concrete and installing rebar and other supports for it. The concrete suppliers would prepare the amount and type of concrete required, arrive at the site, and pour or pump the concrete into the areas that had been prepared. Petitioner then did “anything that need[ed] to be done” to ensure that the poured concrete would form the structure contemplated by the project specifications, such as smoothing the concrete and installing keys, details or lines in the concrete before it set, and petitioner bore responsibility for correcting any problems with the final product. Matter of M&Y Devs. Inc. v Tax Appeals Trib. of the State of N.Y., 2022 NY Slip Op 04600, Third Dept 7-14-22

Practice Point: Concrete purchased as part of a service which not only supplies the concrete but builds capital improvements with the concrete is exempt from sales tax. But here petitioner purchased the concrete which was then used by petitioner’s employees and subcontractors to build the capital improvements. The “capital improvement’ sales-tax exemption did not apply.

 

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AN APPEAL FROM A WORKERS’ COMPENSATION DECISION WHICH IS INTERLOCUTORY IN NATURE MUST BE DISMISSED; THE DECISION MAY BE REVIEWED IN AN APPEAL FROM THE FINAL DETERMINATION (THIRD DEPT).

The Third Department held that the Workers’ Compensation Board decision was interlocutory in nature and could only be considered in an appeal from the final determination:

“In order to avoid piecemeal review of workers’ compensation cases, a Board decision that is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim is not the proper subject of an appeal” … . “As none of the arguments raised on this appeal address potentially dispositive threshold legal questions, and ‘the nonfinal decision may be reviewed upon an appeal from the Board’s final determination, this appeal must be dismissed'” … . Matter of Polizzano v Medline Indus., 2022 NY Slip Op 04604, Third Dept 7-14-22

Practice Point: A decision from the Workers’ Compensation Board which does not reach issues that may be determinative of the claim is interlocutory in nature and will not be considered on appeal. However, the interlocutory decision may be reviewed in an appeal from the final determination.

 

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THE EVIDENCE OF “WITNESS ELIMINATION MURDER” WAS INSUFFICIENT; THERE WAS NO EVIDENCE THE VICTIM, DEFENDANT’S WIFE, WITNESSED THE DEFENDANT’S SEXUAL RELATIONSHIP WITH HIS DAUGHTER AND NO EVIDENCE DEFENDANT FEARED CRIMINAL PROCEEDINGS WERE IMMINENT; MURDER FIRST DEGREE REDUCED TO MURDER SECOND DEGREE (THIRD DEPT).

The Third Department, over two separate concurrences, determined the evidence that the defendant murdered his wife to eliminate her as a witness was legally insufficient. Therefore defendant’s first-degree murder conviction was reduced to second-degree murder. Defendant was in a sexual relationship with his minor daughter. The People alleged defendant killed his wife to prevent her from testifying about his sexual relationship with his daughter. But there was no evidence defendant’s wife had witnessed the sexual relationship:

There was no evidence that the deceased victim observed defendant and the minor victim engage in sexual relations or sexual conduct, and the minor victim did not disclose the sex offenses to the deceased victim. At most, the deceased victim may have been a “coincidental witness” since she had suspicions of the sex offenses, but she would not have been in a position to provide “powerful, direct evidence” of defendant’s criminal sexual acts … . Second, there was no evidence that defendant feared that criminal proceedings were imminent or that he was otherwise cognizant of the fact that the deceased victim might be called to testify against him. The People point to defendant’s statement — in a recorded jail telephone conversation that took place with his mother after defendant was indicted on murder in the second degree — wherein he states that if the prosecution had recorded his jail telephone conversations with the minor victim after the murder (and thus become aware of the sexual relationship between them), the People would be “using murder one.” In our opinion this conclusory statement does not constitute an admission to witness elimination murder. Aside from its speculative nature, there is simply no evidence in the record that defendant was even aware of the elements of murder in the first degree, let alone that he had this concern at the time of the stabbing. Viewed in the light most favorable to the People, the evidence is simply insufficient to establish a witness elimination murder … . People v Agan, 2022 NY Slip Op 04581, Third Dept 7-14-22

Practice Point: Here two elements of “witness elimination murder” were not supported by legally sufficient evidence. There was no evidence the victim, defendant’s wife, was a witness to defendant’s sexual relationship with his daughter. And there was no evidence defendant feared an imminent criminal prosecution based upon his sexual relationship with his daughter. The first-degree murder conviction was reduced to second-degree murder.

 

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PETITIONER HELD HIMSELF OUT AS THE FINANCIAL DECISION-MAKER OF THE BUSINESS AND THE TAX TRIBUNAL PROPERLY FOUND PETITIONER WAS PERSONALLY LIABLE FOR UNPAID EMPLOYEE WITHHOLDING TAXES; THE TWO DISSENTERS ARGUED THAT PETITIONER WAS NOT THE FINANCIAL DECISION-MAKER AND WAS PUT IN CHARGE ONLY TO ALLOW THE BUSINESS TO BE CERTIFIED AS A MINORITY BUSINESS-ENTERPRISE; THE IRS IN A PARALLEL PROCEEDING HAD ABSOLVED PETITIONER OF LIABILITY (THIRD DEPT).

The Third Department, over a two-justice dissent, determent the Tax Tribunal properly found that petitioner was a “responsible person” such that he can be held personally liable for unpaid employee withholding taxes. According to the dissent, petitioner held himself out as the business’s (NECC’s) financial decision-maker as part of an agreement with the 51% shareholder, Anthony Nastasi (the actual financial decision-maker) in order that the business would be certified as a minority business-enterprise and be eligible for certain state contracts as a result. In a parallel proceeding brought against petitioner by the IRS, petitioner was absolved of liability:

Notwithstanding evidence that could support a contrary determination, it is undisputed that petitioner was president, the majority shareholder, had check signing authority, was involved in daily field operations and derived a substantial part of his income from NECC. Additionally, petitioner intentionally held himself out to third parties, as well as to the Division of Taxation itself, as the contact person and responsible person for New York taxes by signing state tax returns and checks accompanying the returns, executing a sales tax certificate of authority listing himself as the corporation’s responsible person, filling out the Division’s “Responsible Person Questionnaire,” and maintaining communication with the Department. Accordingly, respondent’s determination that petitioner is a responsible person has a rational basis, is supported by substantial evidence and must be upheld … . Matter of Black v New York State Tax Appeals Trib., 2022 NY Slip Op 04200, Third Dept 6-30-22

Practice Point: Even though there was evidence petitioner was put in charge of the business solely to allow it to be certified as a minority business enterprise, the Third Department upheld the Tax Tribunal’s determination that petitioner was a “responsible person” liable for unpaid employee withholding taxes. The two dissenters argued petitioner was not a “responsible person” and should be absolved of liability, which was the result in the parallel IRS proceeding. The result in this case was dictated by the standard for appellate review of an administrative determination. As long as there is evidence in the record which supports the Tax Tribunal’s ruling, the ruling will be deemed rational and upheld.

 

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TERMINATION OF MOTHER’S SUPERVISED VISITATION IS A “DRASTIC REMEDY” WHICH MUST BE SUPPORTED BY “SUBSTANTIAL PROOF” CONTINUED VISITATION “WOULD BE HARMFUL TO THE CHILD;” THE PROOF HERE DID NOT MEET THOSE CRITERIA (THIRD DEPT). ​

The Third Department determined the evidence did not support the “drastic remedy” of terminating mother’s supervised visitation with the child:

Although Family Court found that both the mother and the father “testified credi[]bly that relations between the mother and child ha[d] deteriorated” — a determination that was borne out by the testimony — the “denial of visitation to a noncustodial parent is a drastic remedy” … and the record does not contain “substantial proof” that continued supervised visitation “would be harmful to the child” … . We are mindful of the father’s testimony that the child had returned home from a visit with bent glasses and marks on his leg. However, Family Court did not make any factual findings regarding these allegations, and the maternal grandfather — who drove the child home from that visit — denied ever observing the child’s glasses to be “messed up” or witnessing marks on the child’s legs. On this record, there is an insufficient basis to conclude that the bent glasses and marks observed by the father were caused by the mother’s conduct. Moreover, while the mother herself acknowledged that there were issues in the relationship between her and the child, she indicated that this stemmed from the child’s difficult behavior and her concern about the child making racist comments in front of his three-year-old half-sibling. There was also testimony regarding the positive aspects of their relationship and the maternal grandfather, who did all the driving, corroborated that the child generally seemed content during visits. Notwithstanding the father’s testimony to the contrary, we conclude that the evidence presented was not sufficiently compelling and substantial to justify a wholesale suspension of the mother’s supervised visitation … . Matter of William V. v Christine W., 2022 NY Slip Op 04199, Third Dept 6-3022

Practice Point: The termination of supervised visitation is a “drastic remedy” which requires “substantial proof” continued visitation “would be harmful to the child.” The proof was lacking in this case.

 

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HERE THE DEFENDANT, IN HIS MOTION TO VACATE HIS CONVICTION, RAISED ISSUES ABOUT THE EXTENT OF HIS COOPERATION AND WHETHER NEW DEFENSE COUNSEL ADEQUATELY INVESTIGATED THE PROSECUTOR’S WITHDRAWAL OF THE COOPERATION AGREEMENT; THE PEOPLE’S RESPONSE DID NOT ADDRESS THESE SUBSTANTIVE ISSUES; THEREFORE COUNTY COURT SHOULD HAVE HELD A HEARING (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised several issues in the motion to vacate the conviction which were not addressed by the People’s response. Some of the issues were corroborated in an affidavit from defendant’s prior attorney. Therefore a hearing was necessary:

… [W]e agree with defendant that he is entitled to a hearing on whether counsel was ineffective in connection with defendant’s alleged failure to fully cooperate under the terms of the 2016 cooperation agreement. A hearing is required on a CPL article 440 motion “if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief” … . In that regard, defendant averred that he consistently gave a truthful account of the burglary and had fully cooperated in the prosecution of [a codefendant] as required by the 2016 cooperation agreement, and his motion papers included a September 2016 supporting deposition from his sister and an affidavit from [his former attorney] to support those claims. Defendant also alleged specific deficiencies in counsel’s performance, namely, that counsel failed to investigate whether the Special Prosecutor’s withdrawal of the 2016 cooperation agreement was impermissibly “premised on bad faith, invidiousness, . . . dishonesty” or unconstitutional considerations and, moreover, failed to discuss the possibility of demanding a hearing on that issue with defendant … . People v Buckley, 2022 NY Slip Op 04197, Third Dept 6-30-22

Practice Point: If a motion to vacate the conviction raises substantive issues which are corroborated in some way (here with an affidavit by defendant’s prior attorney), and these substantive issues are not adequately dealt with in the People’s responding papers, a hearing must be held.

 

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