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FAILURE TO SPECIFY WHEN THE OBJECTION TO BE REVIEWED WAS MADE IN ANSWER TO QUESTION 15 OF THE APPLICATION JUSTIFIED THE BOARD’S REFUSING TO REVIEW IT, DESPITE THE FACT THAT THE DATE OF THE RELEVANT HEARING WAS INDICATED ELSEWHERE IN THE APPLICATION (SECOND DEPT).

The Third Department determined the Workers’ Compensation Board properly refused the employer’s application for review because the application did not indicate when the objection to be reviewed was made. The application indicated the objection was made at the hearing, but there were several hearings. The fact that the date of the hearing in question was indicated elsewhere in the application did affect the validity of the Board’s ruling:

The pertinent regulation, as well as the instructions in effect at the time that the employer filed its application for review, unambiguously required the employer to “specify the objection or exception that was interposed to the ruling [of the Workers’ Compensation Law Judge], and when the objection or exception was interposed” … . In response to question number 15 on the application for Board review, the employer set forth the specific objection but, in answering when such objection was interposed, indicated “at the hearing on the record.” As noted by the Board, because there were multiple hearings held in this matter, we cannot say that the Board abused its discretion in deeming the employer’s response to question number 15 to be incomplete based upon its failure to specify when such objection was interposed in order to satisfy the temporal element of the regulation …. Further, the fact that the date of the hearing at which the objection or exception was allegedly interposed appeared elsewhere on the application did not obviate the requirement for the employer to provide a complete response to question number 15, as the Board was not required to deduce when the employer’s objection or exception was interposed … . Matter of Rzeznik v Town of Warwick, 2020 NY Slip Op 02702, Second Dept 5-7-20

 

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THE EVIDENCE SUBMITTED TO THE GRAND JURY IN THIS DRUNK-DRIVING-ACCIDENT CASE SUPPORTED THE TWO COUNTS OF DEPRAVED INDIFFERENCE ASSAULT STEMMING FROM INJURIES SUFFERED BY THE TWO PASSENGERS; SUPREME COURT SHOULD NOT HAVE DISMISSED THOSE COUNTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the evidence submitted to the Grand Jury supported the depraved indifference assault counts stemming from injuries suffered by the two passenger in a drunk driving accident after a police pursuit:

The … accident reconstruction revealed that defendant was driving 119 miles an hour five seconds before the accident, then slammed on his brakes and steered hard to the right, hurtling into the parking lot and striking a concrete barrier at approximately 60 miles per hour. * * *

Drunk driving cases do not ordinarily lend themselves to a finding of depraved indifference, nor does “every vehicular police chase resulting in death [or serious injury] . . . take place under circumstances evincing” it … . Unlike in cases where a defendant attempted to avoid harming others in the course of a chase … , however, the intoxicated defendant here was warned by one of his passengers that he should slow down and “was well aware that [he] was endangering [their] lives” by flouting traffic laws and fleeing a police officer at ludicrous speeds on local roads … . Moreover, the same passenger testified that defendant knew that the parking lot was a shortcut to another street and that he suddenly “turned into” it when she mentioned seeing a police cruiser. The grand jury could infer from this proof that defendant did not care about the welfare of his passengers and that he lost control of the vehicle not in an unsuccessful effort to navigate a bend in the road, but rather in a near-suicidal gambit to escape police by making an abrupt turn at high speed and trying to traverse the parking lot. It follows from those inferences that defendant “appreciated that he . . . was engaging in conduct that presented a grave risk of death and totally disregarded that risk, with catastrophic consequences” … . Although innocent inferences could also be drawn from the evidence presented, legally sufficient proof nevertheless existed for the grand jury’s finding that defendant exhibited depraved indifference toward his passengers and, thus, Supreme Court erred in dismissing the two counts of assault in the first degree … . People v Edwards, 2020 NY Slip Op 02503, Third Dept 4-30-20

 

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THE WORKERS’ COMPENSATION BOARD MADE SEVERAL DECISIONS BUT REMITTED THE MATTER TO THE WORKERS’ COMPENSATION LAW JUDGE FOR ADDITIONAL RULINGS; THE ORDER APPEALED FROM THEREFORE WAS NONFINAL; APPEAL DISMISSED (THIRD DEPT).

The Third Department determined the decision by the Workers’ Compensation Board was nonfinal and therefore the appeal could not be considered:

In reviewing these various decisions, the Board found, among other things, that claimant was entitled to awards from April 14, 1997 to September 1, 2011 at the previously established temporary partial disability rate of 66.6% and that claimant had reached maximum medical improvement, but remitted the case to the WCLJ [Workers’ Compensation Law Judge] for a determination of issues related to claimant’s alleged violation of Workers’ Compensation Law § 114-a, permanency and loss of wage-earning capacity … . …

This appeal must be dismissed. “We will not conduct a piecemeal review of the issues presented in a nonfinal decision in workers’ compensation cases that will be reviewable upon an appeal of the Board’s final decision” … . “Board decisions which neither decide all substantive issues nor involve a threshold legal issue are not appealable” … . 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 Navarro v General Motors, 2020 NY Slip Op 02504, Third Dept 4-30-20

 

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PLAINTIFF-PASSENGER DID NOT RAISE A QUESTION OF FACT ABOUT DEFENDANT-DRIVER’S NEGLIGENCE; DEFENDANT-DRIVER WAS STRUCK FROM BEHIND WHEN HE STOPPED QUICKLY AFTER AN SUV MERGED INTO DEFENDANT’S LANE (THIRD DEPT).

The Third Department, over a dissent, determined plaintiff-passenger did not raise a question of fact about defendant-driver’s negligence in this traffic accident case. Plaintiff alleged defendant failed to keep a proper lookout when an SUV merged into defendant’s lane and stopped. Defendant was able to stop without hitting the SUV but was struck from behind by the Robbins vehicle:

“Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . “[W]here the lead driver is forced to brake and stop suddenly without striking the vehicle in front due to that vehicle coming to a sudden stop, there is no basis for imposing liability on that driver” … . Defendant testified at his deposition that he was driving in the right lane on a highway and that he saw the SUV move from the left lane to the middle lane. Defendant testified that, as the SUV was in the middle lane, he looked to his right to see if he “had an out to go” because there was a vehicle to the left of him. The SUV suddenly “jumped in front” of defendant without flashing a turning signal, hit the brakes and came to a complete stop. … Defendant braked and avoided hitting the SUV. Shortly thereafter, however, Robbins struck defendant’s vehicle in the rear. In view of the foregoing, defendant satisfied his moving burden by establishing that he was not negligent … . Guerin v Robbins, 2020 NY Slip Op 02511, Third Dept 4-30-20

 

A GENEALOGICAL ADVOCACY ORGANIZATION’S FREEDOM OF INFORMATION LAW REQUEST FOR MARRIAGE RECORDS FROM 1967 THROUGH 2017 PROPERLY DENIED ON ‘INVASION OF PRIVACY’ GROUNDS (THIRD DEPT).

The  Third Department, in a full-fledged opinion by Justice Colangelo, after a comprehensive analysis, determined the respondent NYS Department of Health properly refused petitioners’ request for records of marriages between 1967 and 2017 based upon “invasion of privacy” concerns. The petitioners are a “genealogical advocacy organization” and its officers seeking to add the marriage records to a searchable database:

In our view, respondent has satisfied its burden of showing that the requested information falls within this privacy exemption “by articulating a particularized and specific justification for denying access” … . Although individual marriage records are public, there is a material difference between providing access to individual records on a demonstration of need (see Domestic Relations Law § 19 [1]) and providing 50 years’ worth of recent marital indices to publish on the Internet. According this personal privacy exemption its “natural and [most] obvious meaning” … , we conclude that it applies to the recent records sought from respondent here. * * *

Petitioners do not even argue that disclosure here would promote the objectives of FOIL. “[I]t is precisely because no governmental purpose is served by public disclosure of certain personal information about private citizens that the privacy exemption” exists … . …

Who among us, in applying for a loan, a bank account or a credit card, has not been asked for our mother’s “maiden” name, or been directed to devise or change a password the creation of which called for information such as a town of origin, wedding anniversary, first school attended and the like. … Such specific identifying facts could readily be gleaned, with a few strokes of a keyboard, from the record indices that petitioners would, upon receipt, make available to the world. In contrast, the “public interest” that would presumably be served by such mass disclosure, as articulated by petitioners, is to, in essence, assist certain members of the public in their pursuit of what is essentially a hobby. In short, in this Internet age, the potential for harm to thousands of private citizens from the disclosure of the personal information at issue far outweighs the presumed benefit to a few genealogical enthusiasts. Thus, under these circumstances, nondisclosure and application of the personal privacy exemption is, we believe, “consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL” … . Matter of Hepps v New York State Dept. of Health, 2020 NY Slip Op 02517, Third Dept 4-30-20

 

CLAIMANT, IN HIS APPLICATION FOR BOARD REVIEW, DID NOT SPECIFY WHEN THE OBJECTION SUBJECT TO BOARD REVIEW WAS MADE; THEREFORE THE BOARD PROPERLY DENIED REVIEW OF THE WORKERS’ COMPENSATION LAW JUDGE’S DECISION (THIRD DEPT).

The Third Department determined the Workers’ Compensation Board properly rejected claimant’s application for review because the question “when” the objection subject to review was made was not answered:

When claimant filed his application for Board review in September 2018, both the relevant version of form RB-89 and the corresponding instructions then in effect required an appellant to “specify the objection or exception that was interposed to the [WCLJ’s] [Workers’ Compensation Law Judge’s] ruling, and when the objection or exception was interposed” (12 NYCRR 300.13 [b] [2] [ii] …) In response to question number 15, claimant identified his objection to the WCLJ’s ruling; however, the Board found that claimant’s response was incomplete because there were multiple hearings held in this case, and claimant’s response to question number 15 failed to indicate when the objection or exception was interposed. Inasmuch as the regulation and instructions both expressly required claimant to “specify . . . when the objection or exception was interposed” … , we cannot say that the Board abused its discretion in deeming claimant’s response to question number 15 to be incomplete … . Matter of Martinez v New York Produce, 2020 NY Slip Op 02519, Third Dept 4-30-20

Similar issue and result in Matter of Turcios v NBI Green, LLC, 2020 NY Slip Op 02518, Third Dept 4-30-20

 

CLAIMANT’S INJURIES DID NOT ARISE OUT OF HIS EMPLOYMENT; CLAIMANT WAS STRUCK BY A CAR CROSSING THE STREET IN FRONT OF HIS PLACE OF EMPLOYMENT (THIRD DEPT).

The Third Department determined claimant’s injury did not arise out of his employment and he was not entitled to workers’ compensation benefits. Claimant was struck by a car in front of his place of employment:

Generally, “accidents that occur outside of work hours and in public areas away from the workplace are not compensable” … . Where an accident occurs near a claimant’s place of employment, as is the case here, “there develops a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation” … . …

At the time of the accident, claimant had arrived more than one hour early for his shift, had not yet reported to work and had not been approved for overtime. Further, although the public road and parking area used by claimant when he was injured was located in front of his workplace, they were open to and used by the public “and there was no showing that [they were] otherwise controlled by the employer, that workers were encouraged to use [them] or that [they] existed solely to provide access to the workplace” … . Thus, the risk of getting hit by a car while crossing the public road was unrelated to claimant’s employment and merely constituted a danger that ” existed to any passerby traveling along the street in that location” … . Moreover, notwithstanding claimant’s assertion that his choice to drive to work and his general parking location was known to his supervisor and reduced his commute so that he could be well rested for work, “[t]here is no evidence that the method or route [he] chose served any business purpose, or that the employer benefitted from that route” … . Matter of Johnson (New York City Tr. Auth.), 2020 NY Slip Op 02521, Third Dept 4-30-20

 

THE OMISSION OF THE TIME AND PLACE OF THE OFFENSE FROM THE SUPERIOR COURT INFORMATION WAS NOT A JURISDICTIONAL DEFECT AND ANY ERRORS WERE FORFEITED BY THE GUILTY PLEA (THIRD DEPT).

The Third Department determined that the failure to include the time and place of the crime in the superior court information (SCI) was not a jurisdictional defect and any errors were forfeited by the guilty plea:

… [D]efendant contends that the waiver of indictment and SCI omitted essential information required by CPL 195.20, rendering the waiver of indictment invalid and the SCI jurisdictionally defective. In support of this claim, defendant points to the fact that neither the waiver of indictment nor the SCI sets forth the approximate time of the crime, and the waiver of indictment also failed to set forth the place where it occurred. While we acknowledge these deficiencies, we do not find that they mandate dismissal of the SCI and reversal of the judgment of conviction given our recent decisions in People v Shindler (179 AD3d 1306, 1307 [2020]) and People v Elric YY., (179 AD3d 1304, 1305 [2020]), and the Court of Appeals’ decision in People v Lang (___ NY3d ___, ___, 2019 NY Slip Op 08545, *7-9 [2019]). As is relevant here, the Court of Appeals found in Lang that the date, approximate time and place of the crime in the waiver of indictment constituted non-elemental factual information, the omission of which did not amount to a jurisdictional defect (see People v Lang, 2020 NY Slip Op 08545 at *8-9). In view of this decision, we abandoned the standard enunciated in People v Busch-Scardino (166 AD3d 1314 [2018]) and concluded in Shindler and Elric YY. that the omission of the approximate time and place was not a jurisdictional defect rendering the waiver of indictment invalid.

Here, defendant was provided adequate notice of the crime charged based upon a reading of the waiver of indictment and the SCI together … , as well as the felony complaint, which set forth in detail the nature of the crime and the approximate time and place where it occurred … . Significantly, defendant did not raise any objection to the sufficiency of the waiver of indictment or the SCI before County Court, or demand a bill of particulars. Therefore, the subject omissions are nonjurisdictional defects that were forfeited by defendant’s guilty plea … .People v Morgan-Smith, 2020 NY Slip Op 02501, Third Dept 4-30-20

 

CPL 300.40 (3) (b), WHICH REQUIRES DISMISSAL OF INCLUSORY CONCURRENT COUNTS, APPLIES ONLY TO VERDICTS AFTER TRIAL, NOT TO GUILTY PLEAS (THIRD DEPT).

The Third Department determined that Criminal Procedure Law 300.40 (3) (b), which requires dismissal of inclusory concurrent counts, applies only to verdicts after trial and not to cases resolved by guilty plea. Defendant confessed to killing a mother and daughter and he was charged with two counts of first degree murder and two counts of second degree murder. He pled guilty to the two counts of second degree murder. On appeal defendant argued the second degree murder counts should have been dismissed as inclusory concurrent counts of first degree murder:

CPL 300.40 (3) (b) provides, with respect to inclusory concurrent counts, that “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … . Even assuming, without deciding, that counts 3 and 4 of the indictment indeed are inclusory concurrent counts of counts 1 and 2, defendant’s reliance upon both the statute and the cases applying it … is misplaced, as CPL article 300 “‘deals only with trials, and has no application to convictions obtained on a plea of guilty'” … . Having elected to plead guilty to the entire indictment, as was defendant’s right (see CPL 220.10 [2]), he cannot now avail himself of the provisions of CPL 300.40 (3) (b) … . People v Redden, 2020 NY Slip Op 02502, Third Dept 4-30-20

 

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ALTHOUGH PETITIONER WAS ADJUDICATED A LEVEL THREE SEX OFFENDER AFTER HIS RELEASE FROM PRISON ON A PRIOR RAPE CONVICTION, HE WAS NOT SUBJECT TO THE RESIDENCY REQUIREMENTS OF THE SEXUAL ASSAULT REFORM ACT AFTER HIS RELEASE FROM PRISON ON A SUBSEQUENT ROBBERY/BURGLARY CONVICTION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, who was adjudicated a level three sex offender when released after a prior rape conviction, was not subject to the residential restrictions under the Sexual Assault Reform Act (Executive Law § 259-c (14)) upon release after his subsequent robbery/burglary convictions and incarceration:

In 2007, petitioner was convicted of robbery in the second degree and burglary in the third degree, resulting in a sentence of concurrent prison terms, the maximum of which was 13 years in prison, followed by five years of postrelease supervision. In 2017, petitioner reached the conditional release date of that sentence and the Board of Parole determined that, because he was a risk level three sex offender as a result of his 1989 conviction, he was subject to the provisions of the Sexual Assault Reform Act as set forth in Executive Law § 259-c (14) (L 2000, ch 1, as amended by L 2005, ch 544), which, as relevant here, prohibits him from residing within 1,000 feet of school grounds. Petitioner failed to offer any proposed residence that would permit him to comply with that condition, other than the New York City homeless shelter system, which the Department of Corrections and Community Supervision regarded as inappropriate. As such, petitioner was maintained in the custody of the Department of Corrections and Community Supervision. …

For the reasons stated in People ex rel. Negron v Superintendent, Woodbourne Corr. Facility (170 AD3d 12 [2019]), we agree with petitioner and find that he is not subject to the conditions of Executive Law § 259-c (14) (see Matter of Cajigas v Stanford, 169 AD3d 1168 [2019] … . Matter of Green v LaClair, 2020 NY Slip Op 02338, Third Dept 4-23-20

 

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