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ALL EIGHT OF THE SCHOOL DISTRICTS EXAMINED VIOLATED THE CONSTITUTIONAL REQUIRMENT TO PROVIDE A SOUND EDUCATION TO THE AT-RISK STUDENT POPULATIONS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the plaintiffs established a violation of the constitutional requirement to provide a sound education to the at-risk student population in all of the school districts named in the action—Jamestown, Kingston, Mount Vernon, Newburgh, Niagara Falls, Port Jervis, Poughkeepsie, and Utica:

… [P]laintiffs in this case have demonstrated a … set of coalescing circumstances with respect to the at-risk student population in the subject school districts sufficient to establish a constitutional violation. Each of the subject school districts had a high percentage of at-risk students during the stipulated academic years — those who came from impoverished backgrounds, had disabilities, or whose primary language was one other than English. The compelling evidence demonstrated that, in order to place a sound basic education within the reach of such students, they require early interventions, more time on task and other supplemental programming, as well as support from adequate numbers of guidance counselors, social workers or other similar professionals. Despite these enhanced needs, the districts lacked a combined total of over $1.1 billion in funding … , necessitating further cuts to already diminished staff and essential services. Most unfortunately, the performance of the students in these districts suffered as a result. Working from the premise … that all children can succeed when given appropriate instructional, social and health services, we find — based upon the evidence of inadequate inputs, poor outputs and a causal connection to defendant’s school financing system — that plaintiffs have established a constitutional violation with respect to the at-risk student population in each of the subject school districts. Maisto v State of New York, 2021 NY Slip Op 03350, Third Dept 5-27-21

 

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PURSUANT TO ECL 23-2711, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO ISSUE A MINING PERMIT BECAUSE THE TOWN LAW PROHIBITED MINING (THIRD DEPT).

The Third Department, reversing Supreme Court, over an extensive dissent, determined the mining permit issued by the Department of Environmental Conservation (DEC) must be annulled pursuant to Environmental Conservation Law (ECL) 23-2711 because the local law prohibiting mining. The permit purported to allow the expansion of an existing mining operation:

ECL 23-2703 (3) provides that, in the event that an application for a permit is received from an applicant whose mine falls within an area described in the statute, the agency may not process the application if the local zoning laws prohibit same. ECL 23-2703 (3) is not vague or ambiguous; it is concise and clear. Contrary to all other permit applications received by DEC, an application received from an area protected under ECL 23-2703 (3) must be put on hold until the status of the local laws is determined … . There is no qualification on what type of permit applications must be put on hold; rather, by its certain language, the statute applies to all applications. … . …

ECL 23-2703 (3) clearly recognizes that the local laws of the municipality are determinative as to whether an application can be processed. Here, where it is unchallenged that the Town’s laws prohibit zoning [SIC mining?], DEC cannot process the application, let alone issue the permit. It cannot do by fiat what is prohibited under the law. Therefore, the act of issuing the permits here, in contravention of ECL 23-2703 (3), was arbitrary and capricious. Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 03351, Third Dept 5-27-21

 

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UNDER THE CIRCUMSTANCES OF THE TRAFFIC STOP, THE CORRECT STANDARD TO APPLY TO THE CANINE SNIFF OF DEFENDANT’S PERSON WAS REASONABLE SUSPICION, NOT PROBABLE CAUSE; THE SUPPRESSION MOTION WAS PROPERLY DENIED; THE DISSENT DISAGREED (THIRD DEPT).

The Third Department, over a concurrence and a dissent, determined the canine sniff after a traffic stop was justified by reasonable suspicion. The concurrence argued the court could not reach the proper standard for the canine sniff because the motion court did not rule on it. The dissent argued the probable cause standard should apply:

Defendant correctly asserts that the canine’s contact sniff of his person intruded upon his personal privacy as secured under both the Fourth Amendment of the US Constitution and article 1, § 12 of the NY Constitution … . The question presented is whether the search ran afoul of either constitutional provision and what standard applies to make that assessment — an issue of first impression for this Court.

Considering the context of a vehicle traffic stop and how events unfolded, we conclude that a reasonable suspicion standard should apply, not one of probable cause … . A canine sniff is a minimal intrusion compared to a full-blown search of a person, intended only to detect the possession of narcotics … . Without prompting from [officer] Bracco, the canine twice was “in odor” of its own accord, providing a reasonable and articulable basis for Bracco to suspect that defendant possessed narcotics on his person. Given the necessity for prompt action, it was not unreasonable for Bracco to allow the canine to approach defendant. There was contact between the canine and defendant’s person, but the record suggests that contact was brief and the canine quickly alerted. In these circumstances, we conclude that the search was valid and the suppression motion properly denied. People v Butler, 2021 NY Slip Op 03222, Third Dept 5-20-21

 

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THE FIDUCIARY TOLLING RULE TOLLED THE STATUTE OF LIMITATIONS IN THIS CONSTRUCTIVE TRUST ACTION AGAINST AN EXECUTOR (WHO WAS REMOVED BY THE COURT) UNTIL THE SUCESSOR FIDUCIARY WAS APPOINTED (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, determined the constructive trust action based upon alleged self-dealing by an executor who was removed by the court was not time-barred. The fiduciary tolling rule applied:

Under the fiduciary tolling rule, a claim alleging wrongful conduct by an individual in his or her fiduciary capacity does not accrue until there is an open repudiation of the fiduciary obligation or a judicial settlement of the fiduciary’s account … . This rule tolls the statute of limitations “for all misconduct committed by the fiduciary prior to repudiation of its obligation or termination of the [fiduciary] relationship” … since, absent either repudiation or removal, the aggrieved parties “were entitled to assume that the [fiduciary] would perform his [or her fiduciary] responsibilities” … , and it is highly unlikely that a sitting fiduciary would assert a constructive trust claim against himself or herself. …  Under this rule, the toll continues until a successor fiduciary is appointed … . Matter of George, 2021 NY Slip Op 03231, Third Dept 5-20-21

 

THE SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the superior court information (SCI) was jurisdictionally defective because it did not include an offense charged in the felony complaint or a lesser included offense:

… [D]efendant pleaded guilty, as charged in the SCI, to attempted robbery in the second degree under Penal Law §§ 110.00 and 160.10 (1), a different crime from robbery in the first degree (see Penal Law § 160.15 [2]), which was charged in the felony complaint. To be guilty of the offense charged in the SCI, defendant must have attempted to “forcibly steal[] property” and done so “when . . . aided by another person actually present” (Penal Law § 160.10 [1]). However, the crime of robbery in the first degree in the felony complaint charged defendant with “forcibly steal[ing] property” while “he or another participant in the crime . . . [i]s armed with a deadly weapon” (Penal Law § 160.15 [2]). “As charged here, [attempted] robbery in the second degree requires an element not required by robbery in the first degree — namely, that defendant be ‘aided by another person actually present'” … . Thus, inasmuch as it is possible to commit the crime charged in the felony complaint — robbery in the first degree — without committing the crime charged in the SCI — attempted robbery in the second degree — the crime charged in the SCI is not a lesser included offense of the former … .

Given that the SCI here did not contain either an offense charged in the underlying felony complaint or a lesser included offense thereof, the SCI upon which defendant’s plea was based was jurisdictionally defective … . People v McCall, 2021 NY Slip Op 03083, Third Dept 5-13-21

 

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CRITERIA FOR RECLASSIFICATION OF THE SORA RISK-LEVEL EXPLAINED (THIRD DEPT).

The Third Department explained the criteria for an application for risk-level reclassification under SORA:

Turning to the August 2019 order denying defendant’s application for reclassification, it was his burden “to establish by clear and convincing evidence that the requested modification [was] warranted, and the trial court’s determination will not be disturbed absent an abuse of discretion” … . County Court correctly rejected defendant’s efforts to relitigate various issues addressed in the 2018 order, as an application for reclassification is not “a vehicle for reviewing whether [a] defendant’s circumstances were properly analyzed in the first instance to arrive at his [or her] risk level” … . The sole new development pointed to by defendant was his evaluation by a psychiatrist after the issuance of the 2018 order, and he provided a letter in which the psychiatrist made preliminary findings that defendant neither met the diagnostic criteria for pedophilia nor merited a risk level three classification. The psychiatrist’s final report was not submitted for review, however, and the limited findings offered in the letter were rendered without a review of the raw data underlying the 2015 report and were based upon an account of defendant’s sexual history and offenses that “markedly differ[ed]” from the one referenced in it. The Board accordingly opposed a modification on the ground that defendant had not met his burden of proof and, under the circumstances presented, County Court did not abuse its discretion in agreeing with that assessment … . People v Stein, 2021 NY Slip Op 03086, Third Dept 5-13-21

 

CLAIMANT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO CROSS EXAMINE THE CONSULTANTS WHOSE REPORTS WERE THE BASIS FOR THE DENIAL OF CLAIMANT’S REQUEST FOR SURGERY (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined claimant should be afforded the opportunity to cross-examine the consultants (Cash and Storrs) whose reports were the basis for the denial of claimant’s request for surgery:

The … request for surgery was not made until after the WCLJ [Workers’ Compensation Law Judge] ordered [the] depositions, but was nevertheless considered by the WCLJ, who upheld the denial even though claimant did not have any opportunity to submit contradictory medical evidence or cross-examine the carrier’s consultants. Matter of Ozoria v Advantage Mgt. Assn., 2021 NY Slip Op 03090, Third Dept 5-13-21

 

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THE TRANSFER OF CERTAIN ASPECTS OF SELLER’S BUSINESS TO BUYER DID NOT MEET THE CRITERIA IN LABOR LAW 581; THEREFORE THE TRANSFER DID NOT TRIGGER THE TAKEOVER OF THE SELLER’S UNEMPLOYMENT INSURANCE EXPERIENCE ACCOUNT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the HOP’s purchase of certain aspects of a competing business, Playground, did not trigger HOP’s takeover of Playground’s unemployment insurance experience account:

The statute provides that where a business has been transferred from one employer to another, either in whole or in part, the transferee shall take over and continue the unemployment insurance experience account of the transferor (see Labor Law § 581 [4] [a] …). A transfer, however, will not be deemed to have occurred “if the transferee has not assumed any of the transferring employer’s obligations, has not acquired any of the transferring employer’s good[]will, has not continued or resumed the business of the transferring employer either in the same establishment or elsewhere, and has not employed substantially the same employees as those of the transferring employer” … . To negate a transfer, all four of these requirements must be met … . …

… [U]ndisputed evidence was presented that, in connection with its purchase of assets from Playground, HOP did not assume any of Playground’s obligations, did not continue or resume operation of Playground’s screening room … and did not retain any of Playground’s employees. The sole basis upon which the Board concluded that a transfer had occurred was HOP’s alleged acquisition of Playground’s goodwill. The record, however, does not support the Board’s finding in this regard.

The asset purchase agreement did not identify goodwill as an asset encompassed by the agreement, nor was it specifically mentioned on the list of property set forth on schedule 2.1 of the agreement. Matter of HOP N.Y. Entertainment, LLC (Commissioner of Labor), 2021 NY Slip Op 03093, Third Dept 5-13-21

 

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THERE WAS INSUFFICIENT EVIDENCE DEFENDANT PARTICIPATED IN THE MUGGING, INSUFFICIENT EVIDENCE THE VICTIM SUFFERED PHYSICAL INJURY, AND INSUFFICENT EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED THE VICTIM’S WALLET AND CELL PHONE (THIRD DEPT).

The Third Department, reversing defendant’s convictions, determined the convictions were not supported by legally sufficient evidence and were against the weight of the evidence. The victim said he was mugged by three men and his wallet and cell phone were stolen. The police were able to track the cell phone and, based on the tracking device, stopped a car 30 to 40 minutes after the mugging. There were four men, including defendant, in the car. The other three men in the car pled guilty. The wallet and cell phone were found in the car. The evidence that defendant participated in the mugging was insufficient, the evidence the victim suffered physical injury was insufficient, and the evidence defendant constructively possessed the wallet and cell phone was insufficient:

… [W]e find that the People failed to prove, beyond a reasonable doubt, defendant’s identity as one of the perpetrators of the robbery and assault.  * * *

Given the paucity of proof regarding the victim’s injuries, we agree with defendant that the evidence fails to establish that the victim suffered a physical injury within the meaning of Penal Law § 10.00 (9) … . * * *

… [T]he … circumstantial evidence falls short of proving, beyond a reasonable doubt, that defendant constructively possessed the wallet and the credit and debit cards contained therein or that any such possession was knowing. Although the testimony demonstrated that the wallet was found somewhere in the back seat, there was no other evidence connecting defendant to the stolen property or demonstrating his awareness of its presence inside the vehicle. … [T]he victim asserted that there were three black males involved in the robbery and assault and there were four black males in the vehicle when it was stopped some 30 to 40 minutes afterward, leaving open the possibility that one of the passengers entered the vehicle after the robbery and assault … . People v Green, 2021 NY Slip Op 02841, Third Dept 5-6-21

 

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CLAIMANT-INMATE’S ACTION AGAINST THE STATE ALLEGING HE WAS BEATEN BY CORRECTIONS OFFICERS SHOULD NOT HAVE BEEN DISMISSED; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE OFFICERS WERE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT AT THE TIME OF THE BEATING (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Clark, reversing the Court of Claims, over a two-justice dissent, determined the claimant-inmate’s action alleging claimant was beaten by corrections officers after lodging a complaint against one of the officers (Poupore) should not have been dismissed. The Court of Claims ruled the state could not be liable for the beating because the officers were not acting within the scope of their employment:

… [T]he undisputed evidence demonstrated that the incident took place at Clinton Correctional Facility, that the correction officers involved were on duty and that claimant’s encounter with Poupore by the stairway was occasioned by claimant having been called downstairs for an interview with Wood [Poupre’s supervisor] … . … [T]estimony from defendant’s witnesses demonstrated that pat frisks are routinely conducted prior to inmate interviews and that Poupore was instructed to pat frisk claimant prior to his interview. Accepting claimant’s version of events as true, Poupore struck claimant during the course of that employer-sanctioned pat frisk, which then led to the involvement of additional correction officers. If claimant’s account is credited, Poupore’s intentional tortious act of punching claimant in the head was not so divorced from the performance of his pat-frisk duties so as to preclude a finding that he was acting within the scope of employment. Nor can we conclude as a matter of law that the ensuing altercation was wholly outside the scope of the additional correction officers’ duties. Galloway v State of N.Y., 2021 NY Slip Op 02855, Third Dept 5-6-21

 

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