ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

April 07, 2021

Determining the jurisdiction where an individual alleged to have stolen funds from a New York Emergency Medical Squad may be tried for the alleged theft

A resident of Warren County [Petitioner] had served with an Emergency Squad [EMS] that essentially operated in a nearby county. Petitioner was indicted by a Warren County grand jury for alleged grand larceny, petit larceny and falsifying business records for his alleged theft of money from EMS bank accounts at locations in another county. Ultimately a trial was commenced in Warren County with respect three counts of grand larceny in the fourth degree and one count of falsifying business records in the first degree.

In response to Petitioner's supplemental omnibus motion/motion to reargue and reconsider, seeking, among other things, a court order dismissing the remaining counts of the indictment for lack of jurisdiction, Warren County Court held that Warren County was the proper geographical jurisdiction for the retrial of the four remaining counts. Warren County Court subsequently dismissed the count of falsifying business records in the first degree for insufficient evidence.

Petitioner then commenced a CPLR Article 78 proceeding in the Appellate Division seeking a writ of prohibition*to enjoin the prosecution of the three grand larceny counts in Warren County Court. The Warren County District Attorney [DA], in rebuttal, contended, "prohibition does not properly lie as other remedies are available, and that 'particular effect jurisdiction'** was demonstrated by the negative impact of Petitioner's conduct on the availability of emergency medical care in Warren County."

The Appellate Division opined that for "particular effect jurisdiction" to attach under the circumstances underlying this action, the DA was required to establish not only that Petitioner's alleged conduct had a materially harmful impact to the well-being of the Warren County community as a whole, but also that Petitioner intended his conduct to have such an impact, citing People v Fea, 47 NY2d 70.

Noting the decision of the Court of Appeals in People v Ribowsky, 77 NY2d 284, the Appellate Division observed that "[a] defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise". Further, said the Appellate Division, "The burden is on the People to prove by a preponderance of the evidence that the county where the crime is [being] prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable".

Finding that the DA had offered no proof of such intent on the part of Petitioner and had failed to establish that Plaintiff's alleged theft of money in the amount of $3,900 from EMS*** caused such a "materially harmful impact upon the governmental processes or community welfare" of Warren County to justify the extraordinary exercise of "particular effect jurisdiction", the Appellate Division granted Plaintiff's motion seeking the writ of prohibition.

* A writ of prohibition is a written order by a higher court to a lower court typically forbidding the lower court from taking further action in a case then pending before it.

** See §20.10(4) of the Criminal Procedures Law.

*** Described by the Appellate Division as "a nongovernmental entity serving one town within Warren County".

Click HEREto access the Appellate Division's decision.

Determining the jurisdiction where an individual alleged to have stolen funds from a New York Emergency Medical Squad may be tried for the alleged theft

A resident of Warren County [Petitioner] had served with an Emergency Squad [EMS] that essentially operated in a nearby county. Petitioner was indicted by a Warren County grand jury for alleged grand larceny, petit larceny and falsifying business records for his alleged theft of money from EMS bank accounts at locations in another county. Ultimately a trial was commenced in Warren County with respect three counts of grand larceny in the fourth degree and one count of falsifying business records in the first degree.

In response to Petitioner's supplemental omnibus motion/motion to reargue and reconsider, seeking, among other things, a court order dismissing the remaining counts of the indictment for lack of jurisdiction, Warren County Court held that Warren County was the proper geographical jurisdiction for the retrial of the four remaining counts. Warren County Court subsequently dismissed the count of falsifying business records in the first degree for insufficient evidence.

Petitioner then commenced a CPLR Article 78 proceeding in the Appellate Division seeking a writ of prohibition*to enjoin the prosecution of the three grand larceny counts in Warren County Court. The Warren County District Attorney [DA], in rebuttal, contended, "prohibition does not properly lie as other remedies are available, and that 'particular effect jurisdiction'** was demonstrated by the negative impact of Petitioner's conduct on the availability of emergency medical care in Warren County."

The Appellate Division opined that for "particular effect jurisdiction" to attach under the circumstances underlying this action, the DA was required to establish not only that Petitioner's alleged conduct had a materially harmful impact to the well-being of the Warren County community as a whole, but also that Petitioner intended his conduct to have such an impact, citing People v Fea, 47 NY2d 70.

Noting the decision of the Court of Appeals in People v Ribowsky, 77 NY2d 284, the Appellate Division observed that "[a] defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise". Further, said the Appellate Division, "The burden is on the People to prove by a preponderance of the evidence that the county where the crime is [being] prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable".

Finding that the DA had offered no proof of such intent on the part of Petitioner and had failed to establish that Plaintiff's alleged theft of money in the amount of $3,900 from EMS*** caused such a "materially harmful impact upon the governmental processes or community welfare" of Warren County to justify the extraordinary exercise of "particular effect jurisdiction", the Appellate Division granted Plaintiff's motion seeking the writ of prohibition.

* A writ of prohibition is a written order by a higher court to a lower court typically forbidding the lower court from taking further action in a case then pending before it.

** See §20.10(4) of the Criminal Procedures Law.

*** Described by the Appellate Division as "a nongovernmental entity serving one town within Warren County".

Click HEREto access the Appellate Division's decision.

An individual alleged to have stolen funds to be tried in the county where the crime was allegedly committed unless "particular effect jurisdiction" can be shown under the circumstances

A resident of Warren County [Petitioner] had served as a former treasurer of an Emergency Squad [EMS] that essentially operated in a nearby county. Petitioner was indicted by a Warren County grand jury for alleged grand larceny, petit larceny and falsifying business records for his alleged theft of money from EMS from bank accounts at locations in another county. Ultimately a trial was commenced in Warren County with respect three counts of grand larceny in the fourth degree and one count of falsifying business records in the first degree.

In response to Petitioner's supplemental omnibus motion/motion to reargue and reconsider, seeking, among other things, a court order dismissing the remaining counts of the indictment for lack of jurisdiction, Warren County Court held that Warren County was the proper geographical jurisdiction for the retrial of the four remaining counts. Warren County Court subsequently dismissed the count of falsifying business records in the first degree for insufficient evidence.

Petitioner commenced a CPLR Article 78 proceeding in the Appellate Division seeking a writ of prohibition*to enjoin the prosecution of the three grand larceny counts in Warren County. The Warren County Attorney [DA] contended, "prohibition does not properly lie as other remedies are available, and that 'particular effect jurisdiction'** was demonstrated by the negative impact of Petitioner's conduct on the availability of emergency medical care in Warren County."

The Appellate Division opined that for "particular effect jurisdiction" to attach in these circumstances, the DA was required to establish not only that Petitioner's alleged conduct had a materially harmful impact to the well-being of the Warren County community as a whole, but also that Petitioner intended his conduct to have such an impact, citing People v Fea, 47 NY2d 70.

Observing People v Ribowsky, 77 NY2d 284, noted the long-standing principle that "[a] defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise", the Appellate Division said that "The burden is on the People to prove by a preponderance of the evidence that the county where the crime is prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable".

Finding that the DA had offered no proof of such intent on the part of Petitioner and had failed to establish that Plaintiff's theft of money in the amount of $3,900 from EMS, a nongovernmental entity serving one town within Warren County, caused such a "materially harmful impact upon the governmental processes or community welfare" of Warren County to justify the extraordinary exercise of particular effect jurisdiction and granted Plaintiff's motion seeking the writ of prohibition.

* A writ of prohibition is a written order by a higher court to a lower court typically forbidding the lower court from taking further action in a case then pending before it.

** See §20.10(4) of the Criminal Procedures Law.

Click HEREto access the Appellate Division's decision.

 

April 06, 2021

Conducting a disciplinary hearing after the employee has resigned from the position

Despite evidence supporting allegations of sexual misconduct involving students, a public employer in another state "determined that it could not make a decision" about the employee's culpability because [1] the employee's refused to participate in its investigation of the allegations and [2] the employee already submitted his resignation from his former position.

In New York State 4 NYCCR 5.3, Resignation, may be relevant in the event the appointing authority is faced with such a situation.

Applicable to employees in the Classified Service employed by the State of New York as the employer, 4 NYCCR 5.3, in pertinent part, provides that in the event an employee submits a resignation "when charges of incompetency or misconduct have been or are about to be filed against an employee," the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and specification as provided by law or the terms of the controlling collective bargaining agreement.*

In the event that the individual is found guilty of such charges and the penalty imposed is termination from the service, his termination would be recorded as a dismissal rather than as a resignation.

Should the individual refuse to participate in the investigation and, or, a disciplinary hearing, the appointing officer may elect to conduct the individual's disciplinary hearing "in absentia".

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing;

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee;

3. A formal hearing must be conducted and the appointing authority is required to introduce evidence proving its charges to the hearing officer;

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee; and

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066, “due process does not require that [the charged individual] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if the individual fails to appear and participate.**

Click HERE to access a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge's decision that involved conducting a disciplinary hearing in absentia.

* Many Local Civil Service Commissions and Civil Service Law §15 Personnel Officers have adopted rules or regulations similar to those set out in 4 NYCCR 5.3 applicable to employees in the Classified Service in their respective jurisdictions.

** Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation flowing from the appointing authority conducting a disciplinary hearing in absentia.


Audits and reports issued by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued on April 5, 2021.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

 Albany Water Board – Software Management (Albany County)

Auditors found software installed on Albany Water Board computers and mobile devices is not always appropriate and necessary. Auditors found unnecessary software on 60 computers (97 percent) and six mobile devices (32 percent) including gaming, streaming and shopping software. Officials did not establish controls to prevent computer and mobile device users from downloading applications from application stores.

 

Town of Greenwich – Purchasing (Washington County)

Town officials generally did not seek competition when purchasing goods and services. Of 50 purchases reviewed totaling $154,386 that required competitive quotes, 28 purchases totaling $81,857 lacked evidence of competition as required by the town’s purchasing policy.  Diesel fuel aggregate purchases totaling $35,474 were not competitively bid as required by law.

 

Masonville Fire District – Financial Activities (Delaware County)

Auditors found the board did not provide adequate financial operations oversight. The board did not review supporting documentation for nine disbursements totaling $57,374. They did not approve 12 disbursements totaling $75,880 before payment nor did they audit the treasurer’s records. The board also did not ensure sensitive and personal electronic data was adequately protected because the treasurer used her personal computer to maintain district financial records and perform online banking transactions.

 

Middletown No. 1 Fire District – Annual Financial Reports (Delaware County) The treasurer did not file required annual financial reports with the Office of the State Comptroller for fiscal years 2015-2019 in compliance with General Municipal Law. District officials were not aware that these reports needed to be submitted. 

 

 SCHOOL DISTRICT AUDITS 

 

Briarcliff Manor Union Free School District (Westchester County) Auditors found district officials generally used a competitive process to procure goods and services. However, they did not always seek competition for professional services.

 

Cherry Valley – Springfield Central School District – Financial Condition (Montgomery County and Otsego County) Officials effectively managed most aspects of the school district’s financial condition. However, they have not utilized their multiyear financial plans to help make financial decisions. Officials also have not adopted fund balance and reserve policies.

 

Hamilton Central School District – Procurement (Madison County) District officials did not always seek competition for the purchase of goods and services not subject to competitive bidding, as required by the district’s procurement policy. Officials did not seek competition for the services procured from five professional service providers totaling $658,164. In addition, officials did not obtain verbal and written quotes for the purchase of goods and services from 14 vendors totaling $126,907.

 

OTHER REPORTS

 

State Comptroller DiNapoli Statement on Impact of a Late State Budget - "The economic effects of the pandemic on the state’s finances are widespread and some sectors of our economy may take years to recover. The state Legislature and Governor are in the process of finalizing a new state budget. Many New Yorkers are hurting, and it is important that a final agreement is reached quickly."

State Contract and Payment Actions in February - In February, 2021, the Office of the State Comptroller (OSC) approved 1,407 contracts for state agencies and public authorities valued at $109 billion and approved more than 20.3 million payments worth nearly $14 billion. OSC rejected 110 contracts and related transactions valued at $100 million and more than 8,000 payments valued at nearly $18.2 million, primarily for mistakes, insufficient support for charges, and improper payments. More information on these contracts and payments is available at www.openbooknewyork.com. 

 

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com