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THE CITY PROPERLY AMENDED ITS CHARTER DELETING THE PROVISIONS REQUIRING THE CITY TO ENFORCE PAYMENT OF DELINQUENT PROPERTY TAXES, IMPOSING THAT DUTY ON THE COUNTY (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the city properly amended its charter by deleting the provisions requiring the city to enforce payment of delinquent property taxes, thereby imposing that duty upon the county:

By adopting Local Law No. 2, the City amended its charter by deleting the provisions requiring the City to enforce the payment of delinquent taxes, leaving the County with that obligation under RPTL article 11. The City was statutorily authorized to do so pursuant to RPTL 1104 (2), which recognizes that a city charter “may from time to time be amended.” As a consequence of the amendment, the City is no longer a “tax district” for purposes of RPTL article 11 … and the County treasurer becomes the enforcing officer … . As such, the County treasurer is statutorily required to credit the City for unpaid delinquent taxes upon the return at the end of the fiscal year … . This outcome is neither an expansion nor impairment of the County’s powers but simply a consequence of the statutory structure outlined in RPTL articles 9 and 11. Matter of St. Lawrence County v City of Ogdensburg, 2022 NY Slip Op 04932, Third Dept 8-11-22

Practice Point: Here the city, pursuant to the Real Property Tax Law, properly amended its charter to remove the provisions requiring the city to enforce payment of delinquent property taxes, a duty which now falls upon the county.

 

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PETITIONER SEX OFFENDER’S APPEAL FROM THE DENIAL OF HIS HABEAS CORPUS PETITION WAS MOOT BECAUSE APPROPRIATE HOUSING HAD BEEN FOUND WHILE THE APPEAL WAS PENDING; THE THIRD DEPARTMENT CONSIDERED THE APPEAL UNDER THE EXCEPTION-TO-THE-MOOTNESS-DOCTRINE AND REITERATED THAT WHEN A LEVEL THREE SEX OFFENDER HAS COMPLETED HIS MAXIMUM PRISON TIME AND SUITABLE HOUSING IS NOT AVAILABLE, HE MUST BE TRANSFERRED TO A RESIDENTIAL TREATMENT FACILITY (RTF) (THIRD DEPT).

The Third Department, finding the appeal from the denial of petitioner’s habeas corpus petitioner moot, over a dissent, considered the appeal as an exception to the mootness doctrine. The Third Department held that when a level three sex offender has completed his maximum prison time, and Sexual Assault Reform Act (SARA) compliant housing cannot be found, the inmate must be placed in a residential treatment facility (RTF) to await housing. Here, while the appeal was pending, proper housing was found for petitioner. The dissent argued there was nothing novel about the case and invoking the exception-to-the-mootness-doctrine to hear the appeal was not necessary:

This Court has previously held, and we reiterate, that “when a risk level three sex offender reaches his or her maximum expiration date, [the Department of Corrections and Community Supervision] must release the individual to either an approved residence or to an [appropriate] RTF” … . People ex rel. Jones v Collado, 2022 NY Slip Op 04768, Second Dept 7-28-22

Practice Point: Here the appeal from the denial of petitioner-sex-offender’s habeas corpus petition was moot because appropriate post-release housing had been found. The Third Department considered the appeal pursuant to the exception-to-the-mootness-doctrine to reiterate that when a level three sex offender has completed his maximum prison time he must be placed in SARA compliant housing or, or if housing is not available, in a residential treatment facility (RTF).

 

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PETITIONER WAS PROVIDED WITH THE WRONG MISBEHAVIOR REPORT THEREBY PREVENTING HIM FROM FORMULATING A DEFENSE AND QUESTIONS FOR THE WITNESSES; THE MISBEHAVIOR DETERMINATION WAS ANNULLED AND A NEW HEARING ORDERED (THIRD DEPT). ​

The Third Department, annulling the misbehavior determination and ordering a new hearing, determined the petitioner was not provided with the relevant “unusual behavior” report:

We agree with petitioner that he was denied relevant documentary evidence. The record reflects that petitioner received an unusual incident report from his employee assistant and, upon petitioner’s objection at the hearing that he did not receive the whole unusual incident report, the Hearing Officer provided petitioner with the to/from reports relevant to the incident at issue. At the conclusion of the hearing, however, and in response to the Hearing Officer’s statement of the evidence, petitioner objected that the unusual incident report that he had been given related to a March 2020 incident and not the one related to the June 2020 incident at issue. Based upon the objection raised by petitioner, as well as both the March 2020 and June 2020 unusual incident reports being included with the in camera exhibits, it appears that petitioner was, in fact, given an irrelevant unusual incident report. Inasmuch as the June 2020 unusual incident report is “relevant to formulating petitioner’s defense and effectuating his questioning” of witnesses, the determination must be annulled … . Matter of Saunders v Annucci .2022 NY Slip Op 04772, Third Dept 7-28-22

Practice Point: The failure to provide the petitioner with the correct misbehavior report prevented the petitioner from formulating a defense and relevant questions for the witnesses. The misbehavior determination was annulled and a new hearing ordered.

 

30-YEAR-OLD ALLEGATIONS OF FATHER’S SEXUAL ABUSE OF HIS 10-YEAR-OLD NIECE DID NOT JUSTIFY THE LIMITED PARENTING TIME AWARDED FATHER; FATHER HAD DEMONSTRATED HIS ABILITY TO PROVIDE FOR THE CHILDREN’S WELL-BEING AND THE CASEWORKERS HAD NO CONCERNS ABOUT FATHER (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, determined limiting father’s parenting time to six hours of supervised visits biweekly was not supported by the record. Presumably Family Court’s ruling was based upon sexual abuse allegations made by father’s 10-year-old niece 30 years ago:

… [T]he record contains evidence of the father’s demonstrated ability to provide for the children’s well-being. As established by the evidence, after the children exhibited concerning behavior, the father took overt and appropriate steps to address such behavior by, among other things, engaging in preventative services with the Ulster County Department of Social Services, enrolling the children in counseling and establishing boundaries with the children’s online activity. Child protective caseworkers testified on the father’s behalf and stated that they did not have any concerns regarding the father.

Considering all of the foregoing, we find that the record lacks a sound and substantial basis to support Family Court’s determination to provide the father with only six hours of biweekly, supervised parenting time … . Matter of Benjamin V. v Shantika W., 2022 NY Slip Op 04774, Third Dept 7-28-22

Practice Point: Allegations of sexual abuse by father’s 10-yearr-old niece made 30 years ago did not justify the limited supervised parenting time awarded father. The record demonstrated father’s ability to provide for the children’s well-being and the caseworkers testified they had no concerns about father.

 

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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