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DEPARTMENT OF HEALTH PROPERLY DENIED THE FOIL REQUEST FOR CERTAIN DOCUMENTS ON THE GROUND THE DOCUMENTS WERE NOT ‘REASONABLY DESCRIBED’ (THIRD DEPT).

The Third Department determined the respondent’s (NYS Department of Health’s) denial of petitioners’ request for certain documents relating to respondents’ communications with Ancestry.com concerning death records was properly denied on the ground the requested documents were not “reasonably described” such that they could be located with a “reasonable effort:”

… [R]espondent established that its indexing system did not permit searching either its paper or electronic records by the name of an entity, and that it had no method of searching its correspondence records, whether on paper or in digital form, for the terms provided in petitioners’ request. * * *

… [W]e find that respondent satisfied its burden to demonstrate that petitioners’ FOIL request did not provide a reasonable description of the records sought that was adequate to permit respondent to identify and locate the requested documents … . Matter of Reclaim the Records v New York State Dept. of Health, 2020 NY Slip Op 03968, Third Dept 7-16-20

 

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DESPITE HAVING MADE A PRIOR MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT WAS ENTITLED TO A HEARING ON THE INSTANT MOTION WHICH WAS SUPPORTED BY AN AFFIDAVIT BY HIS ATTORNEY WHO ACKNOWLEDGED HE TOLD DEFENDANT A GUILTY PLEA WOULD NOT RESULT IN DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. The fact that defendant had made a similar motion which was denied did not preclude the instant motion which, unlike the prior motion, was supported by an affidavit from the attorney who handled defendant’s guilty plea. Defendant argued he would not have pled guilty had he been aware of the deportation consequences:

Contrary to the People’s contention, defendant’s failure to include an affidavit from this attorney on the first CPL article 440 motion did not preclude him from filing the second CPL article 440 motion that did contain such an affidavit (see CPL 440.10 [3] [c]… ). We further note that County Court’s denial of defendant’s motion was not mandatory as CPL 440.10 (3) provides that “in the interest of justice and for good cause shown [the court] may in its discretion grant the motion if it is otherwise meritorious and vacate the judgment” … .

In that vein, we note the numerous statements made in the supporting affidavit of defendant’s former attorney with respect to his representation of defendant in his 2000 criminal matter. The affidavit indicates that, upon being retained by defendant, his sole focus was on negotiating a favorable split sentence that would allow defendant to be released from custody as soon as possible. He admits that, in pursuing a favorable sentence, he did not conduct any investigation of the facts surrounding the underlying criminal offense, initiate any preindictment discovery or otherwise raise what he now identifies are arguably fatal deficiencies in the charges brought against defendant. With respect to defendant’s allegation that he was affirmatively misinformed regarding the potential immigration consequences of entering a guilty plea to a class C drug felony, the attorney candidly concedes that, despite being aware of the fact that defendant was only a lawful permanent resident and not a citizen of the United States at the time that defendant entered his September 2000 guilty plea, he specifically advised defendant that his guilty plea would have no effect on his lawful permanent resident status and that he would not be deported from the country. People v Perez, 2020 NY Slip Op 03825, Third Dept 7-9-20

 

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ALL THE ITEMS IN DEFENDANT’S CAR WERE NOT LISTED IN A WRITTEN INVENTORY, IN VIOLATION OF THE POLICE DEPARTMENT’S INVENTORY-SEARCH POLICY; THEREFORE THE FIREARM WAS NOT FOUND DURING A VALID INVENTORY SEARCH AND SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the firearm seized from defendant’s car before the car was towed from a crash scene was not found in a valid inventory search. No written inventory was created. The Third Department held that, under the Albany Police inventory search policy, which the court found reasonable, all items in the vehicle should be listed in written inventory. The dissent argued the policy only required “valuable” property to be listed:

Despite the reasonableness of the policy, [Officer] Elliott’s testimony reveals that he did not comply with it and, therefore, Supreme Court erred in denying defendant’s suppression motion. To that end, Elliott testified that it is the Albany Police Department’s policy, as related to inventory searches, that “[a]nything valuable is . . . logged and placed into our property for safekeeping.” Elliott further testified that, because nothing of value was found in the car, nothing was seized and an inventory list was not created relative to the contents of the vehicle. This testimony conflates the requirement that a written inventory always be created with the discretion given to police officers to determine which property is valuable and, as such, must be taken into custody for safekeeping. Thus, from his testimony, it is apparent that Elliott did not comply with the policy regarding inventory searches, as it clearly mandates that an inventory search always be completed and the vehicle be “completely inventoried,” not allowing for discretion of the individual officers … . People v Jones, 2020 NY Slip Op 03826, Third Dept 7-9-20

 

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GRAND JURY EVIDENCE WAS LEGALLY SUFFICIENT IN THIS AGGRAVATED UNLICENSED OPERATION CASE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing County Court, determined, on the People’s appeal, the evidence presented to the grand jury was legally sufficient to support the charged crimes (aggravated unlicensed operation of a motor vehicle). One issue was whether the ID defendant showed to the officer at the traffic stop was sufficient to connect the defendant to the Department of Motor Vehicles abstract:

In view of defendant’s admission to the police officer during the stop that he did not have a driver’s license, as well as the information in the certified abstract from the Department of Motor Vehicles, the evidence was legally sufficient to support the charges in the indictment … . Furthermore, by producing the identification card to the police officer, defendant adopted the information therein, including his date of birth … . Accordingly, contrary to defendant’s assertion … , there was admissible evidence connecting defendant to the abstract. Because the record discloses that the evidence before the grand jury was legally sufficient to support the charged crimes, the indictment must be reinstated … . People v Reid, 2020 NY Slip Op 03827, Third Dept 7-9-20

 

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MOTHER PRESENTED SUFFICIENT EVIDENCE IN SUPPORT OF HER PRO SE PETITION FOR A MODIFICATION OF CUSTODY TO WARRANT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined that mother presented enough evidence in her pro se petition for a modification of custody to warrant a hearing:

“A parent seeking to modify an existing custody order first must demonstrate that a change in circumstances has occurred since the entry thereof that is sufficient to warrant the court undertaking a best interests analysis in the first instance; assuming this threshold requirement is met, the parent then must show that modification of the underlying order is necessary to ensure the child’s continued best interests” … . “[I]n determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, we construe the pleadings liberally and afford the petitioner the benefit of every favorable inference. As a general matter, custody determinations should be rendered only after a full and plenary hearing” … .

In her petition, the mother alleged, among other things, that the father repeatedly attempted to take the child with him to a prison to visit an inmate who was convicted of murder and on at least one occasion was successful. She also asserted that the child had no desire to accompany the father on these visits and, in fact, they caused the child significant distress. Furthermore, the mother alleged in her petition that the father has refused to allow any additional parenting time, despite numerous requests, and that he has threatened to take away her court-ordered parenting time. Finally, the mother averred that she has completed therapeutic counseling, is continuing with further therapy and is a fit parent. We find that the pro se petition is sufficient to warrant an evidentiary hearing based on these allegations. “We also note that the prior custody order was entered upon consent of the parties and there has not . . . been a plenary hearing regarding custody” since 2014 … . Matter of Kimberly H. v Daniel I., 2020 NY Slip Op 03830, Third Dept 7-9-20

 

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THE ADMINISTRATIVE LAW JUDGE AND THE HEARING COMMITTEE HAD THE DISCRETION TO ACCEPT A LATE ANSWER FROM PETITIONER-PHYSICIAN WHO WAS FACING REVOCATION OF HER MEDICAL LICENSE; THE REJECTION OF THE ANSWER ON THE GROUND THE ALJ AND HEARING COMMITTEE DID NOT HAVE THE DISCRETION TO ACCEPT IT AS A MATTER OF LAW WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department determined the Administrative Law Judge’s (ALJ’s) and the Bureau of Professional Medical Conduct (BPMC) Hearing Committee’s rejection of the petitioner-physician’s attempt to file a late answer to the charges was arbitrary and capricious. The ALJ and the Hearing Committee determined they did not have discretion, as a matter of law, under Public Health Law section 230 to accept the late answer. The Third Department held the ALJ and the Hearing Committee could have exercised discretion and accepted the answer:

… [T]he ALJ and the Hearing Committee concluded that they were precluded, as a matter of law, from accepting petitioner’s answer. We do not read the statute as imposing such a bar. Under the circumstances presented, we conclude that the ALJ and the Hearing Committee had the discretion to decide whether to accept the answer. The statutory language mandating the timely filing of an answer was added to Public Health Law § 230 (10) (c) (2) in 1996 … . Prior to the amendment, the filing of an answer was discretionary. The legislative history indicates that the amendment’s purpose in mandating the filing of an answer was to “expedite proceedings by focusing the proceedings on matters in dispute” … . Allowing a licensee to submit an answer prior to the first hearing date does not compromise this statutory objective. Notably, in Matter of Tribeca Med., P.C. v New York State Dept. of Health (83 AD3d 1135 [2011], lv denied 17 NY3d 707 [2011]), this Court determined that the ARB [Administrative Review Board for Professional Medical Conduct] possessed the discretionary authority to relieve a licensee of a default in answering charges of professional conduct … . It follows that the ALJ and the Hearing Committee had the discretionary authority to accept an answer filed after the 10-day deadline, but before the hearing. The flaw here is that the ALJ and the Hearing Committee failed to exercise any discretion in rejecting the answer, simply concluding that they lacked the legal authority to do so. Moreover, the ARB incorrectly declined to even address the issue as a procedural matter for the ALJ to resolve. These errors of law render the ARB’s determination arbitrary and capricious. Matter of Offor v Zucker, 2020 NY Slip Op 03835, Third Dept 7-9-20

 

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FAMILY COURT ALLOWED MOTHER TO TESTIFY BY TELEPHONE WITHOUT WARNING HER A NOTARY SHOULD BE PRESENT SO SHE COULD BE SWORN AND THEN, SUA SPONTE, REJECTED MOTHER’S TESTIMONY BECAUSE IT WAS NOT SWORN; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, reversing Family Court in this child support violation proceeding, determined that mother’s testimony by telephone should not have been rejected, sua sponte, because it was unsworn. Family Court allowed mother to testify and mother, who was facing incarceration for the child-support violation, had not been warned to have a notary present so her testimony could be sworn:

In noting the lack of a notary present with the mother to swear her in, Family Court correctly identified a critical issue about to unfold at the hearing, but then took no timely corrective action to address the issue, permitted the unsworn questioning to occur and then, in its written decision, found fault with the very unsworn testimony methodology that it had permitted to occur at the hearing. The correct course of action would have been for the court to explain up front that, if the mother wished to testify, she would have to do so under oath and then administer the oath itself if the mother had not made other suitable arrangements. Given that the mother was facing a potential period of incarceration of up to six months in the event that Family Court determined that her failure to pay child support was willful (see Family Ct. Act § 454 [3] [a]), the mother’s testimony was essential to the court’s determination as to whether she had had the ability to pay or willfully disobeyed the prior support order. Thus, having permitted the mother to give unsworn testimony telephonically, it was error for Family Court to thereafter sua sponte rule, nearly 1½ months after the hearing, that it would not credit the mother’s testimony given that it was not sworn.  Matter of Burnett v Andrews-Dyke, 2020 NY Slip Op 03838, Third Dept 7-9-20

 

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BECAUSE THE GRAND JURY MINUTES WERE NOT PART OF THE MOTION TO AMEND THE INDICTMENT OR THE RECORD ON APPEAL, IT COULD NOT BE DETERMINED WHETHER THE DEFENDANT WAS ACTUALLY INDICTED ON THE OFFENSE CHARGED IN THE AMENDED INDICTMENT; PLEA VACATED AND AMENDED INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea and dismissing the amended indictment, held that, because the grand jury minutes did not accompany the motion to amend the indictment and were not available to the appellate court, it could not be determined whether defendant was indicted on the charged offense, a jurisdictional defect. The People argued that the grand jury voted on the offense charged in the amended indictment but the wrong subdivision of the statute was set forth in the original indictment:

“The right to indictment by a [g]rand [j]ury has . . . been recognized as not merely a personal privilege of the defendant but a public fundamental right, which is the basis of jurisdiction to try and punish an individual”… . “[S]ince an infringement of defendant’s right to be prosecuted only by indictment implicates the jurisdiction of the court,” this claim is not waived by a guilty plea and may be raised for the first time on appeal … .  Thus, “[b]efore a person may be publicly accused of a felony, and required to defend against such charges, the [s]tate must a [g]rand [j]ury that sufficient legal reasons exist to believe the person guilty” … . To that end, an indictment ensures that “the crime for which the defendant is brought to trial is in fact one for which he [or she] was indicted by the [g]rand [j]ury, rather than some alternative seized upon by the prosecution” … , providing a safeguard against prosecutorial authority by requiring the grand jury to “assess[] the sufficiency of the prosecutor’s case” … .

The record before us only establishes that a grand jury indicted defendant for violating subdivision (7) of Penal Law § 120.05, not subdivision (3) of that statute. In their motion to amend, the People stated that “the grand jury was instructed on the correct section of the statute” — presumably subdivision (3) of Penal Law § 120.05 … — and that the amendment therefore did not change the theory of their case “as reflected in the instructions and the evidence before the [g]rand [j]ury,” asserting that the charge in the original indictment (under subdivision [7]) was an “inadvertent misstatement.” It is unclear if the People were representing that the grand jury actually indicted defendant under subdivision (3). People v Mathis, 2020 NY Slip Op 03696, Third Dept 7-2-20

 

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ANY CHALLENGE BASED ON A DEFECT IN THE SUPERIOR COURT INFORMATION AND WAIVER OF APPEAL FOR FAILURE TO SET FORTH THE DATE AND TIME OF THE OFFENSE WAIVED BY THE GUILTY PLEA; THE PLEA WAS INVALID BECAUSE OF THE INCOMPLETE COLLOQUY (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined the plea colloquy did not demonstrate defendant fully understood and voluntarily waived his right to trial. The court noted that the failure to set forth the date and time of the offense in the superior court information (SCI) and the waiver of indictment was not a jurisdictional defect and any related error was not preserved for appeal and was forfeited by the guilty plea:

Notwithstanding the omission of the date and approximate time of the offense, the waiver of indictment and the SCI, together with the underlying accusatory instruments prepared in connection with the incident, gave defendant reasonable notice of the felony sex crime with which he was being charged. In light of this, as well as the absence of any indication that defendant raised an objection before County Court to the sufficiency of the waiver of indictment or the SCI, or requested a bill of particulars, defendant’s challenge to the waiver of indictment and the SCI was forfeited by his guilty plea … . …

Preliminarily, we note that defendant’s challenge to the voluntariness of the plea is not precluded by his appeal waiver … and was preserved by his unsuccessful postallocution motion to withdraw his plea … . During the plea proceedings, County Court advised defendant that he was giving up a number of important rights by pleading guilty, including the right “to take the case to trial,” the “right to cross-examine people who testified against you,” and “the right to testify yourself or call your own witnesses.” The court further explained that he could not be convicted at trial unless the People proved to a jury beyond a reasonable doubt that he was guilty of the crime. The court, however, failed to mention the privilege against self-incrimination or ascertain whether defendant conferred with counsel regarding the trial-related rights that he was waiving and the constitutional consequences of entering a guilty plea … . Absent an affirmative showing that defendant fully understood and voluntarily waived his trial-related constitutional rights, the plea was invalid and must be vacated … . People v Oliver, 2020 NY Slip Op 03697, Third Dept 7-2-20

 

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ARBITRATOR’S DECISION FINDING CLAIMANT WAS PROPERLY DISCHARGED FOR MISCONDUCT ENTITLED TO COLLATERAL ESTOPPEL EFFECT IN THE UNEMPLOYMENT INSURANCE PROCEEDING (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the arbitration decision pursuant to the collective bargaining agreement should have been given collateral estoppel effect by the Administrative Law Judge (ALJ) in the unemployment insurance proceeding. The arbitrator found that the claimant engaged in misconduct warranting discharge. The arbitrator’s decision was issued prior to the ALJ’s decision. The ALJ found claimant did not engage in misconduct and was entitled to unemployment insurance benefits:

Although “the Board is not bound by arbitration decisions regarding [a] claimant’s discharge issued subsequent to the time the Board rendered its decision”… , the Board was informed of the arbitration decision prior to its decision. As such, the factual findings of the arbitrator should have been accorded collateral estoppel effect in relation to the final unemployment insurance decision, so long as the parties had a full and fair opportunity to litigate the misconduct issue at the arbitration hearing … . The fact that the arbitration decision was issued after the conclusion of the unemployment insurance hearing does not preclude its consideration for collateral estoppel purposes, as “the final factfinder in the administrative process is the Board, not the ALJ” … . As the Board indicated that the arbitrator’s decision was not part of the record before it — despite that decision being the focus of, and a copy of it annexed to, the employer’s administrative appeal — the matter must be remitted in order for the employer to submit the arbitration decision into the record and to provide an opportunity for claimant and the employer to provide additional evidence and testimony regarding the nature of the arbitration hearing … . Matter of Bruce (Town of N. Hempstead–Commissioner of Labor), 2020 NY Slip Op 03705, Third Dept 7-2-20

 

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