Review of a district attorney’s handling of a criminal proceeding brought before a grand jury

Review of a district attorney’s handling of a criminal proceeding brought before a grand jury

Staten Is. Branch of the N.A. for the Advancement of Colored People v State of N.Y. Grievance Comm. for the Second, Eleventh and Thirteenth Jud. Dists., 2016 NY Slip Op 07124, Appellate Division, First Department

The Staten Island Branch of the N.A.A.C.P. [Staten Island] sought a court review and a disciplinary remedy, alleging that that former Richmond County District Attorney Daniel Donovan had a conflict of interest per se in his handling of a grand jury proceeding in an effort to obtain an indictment against a local police officer.

Supreme Court denied Staten Island’s Article 78 petition seeking an order annulling the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts’ [Committee] determination not to reopen an investigation into Staten Island’s disciplinary complaint and dismissing the proceeding.  Staten Island’s appeal of the Supreme Court’s ruling was unanimously denied by the Appellate Division.

The Appellate Division said the Supreme Court’s determination that it lacked jurisdiction over this Article 78 proceeding to challenge an Attorney Grievance Committee decision not to investigate the handling of the grand jury proceeding involving former Richmond County District Attorney Daniel Donovan “is supported by well-settled authority.” The court explained that “the only avenue for review has already been exhausted through the reconsideration process and an application to the Presiding Justice of the Appellate Division, Second Department.”*

The Appellate Division also observed two additional elements that barred Staten Islands Article 78 action: [1] a court review and a disciplinary remedy against a duly elected prosecutor who acted within the discretion of his office “fails under the doctrine of separation of powers” and [2] Staten Island’s contention that “a publicly-elected district attorney is possessed of a conflict of interest per se whenever seeking an indictment against a local police officer was not sufficiently particularized.”

* The Appellate Division noted that an Executive Order of the Governor, Cuomo EO 147, authorizes transferring prosecutorial authority to the Attorney General in future cases involving fatal actions by police officers, which order provides an additional remedy to hold prosecutors accountable for their discretionary conduct as does the electoral process.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07124.htm

Probationary employee has the burden of showing his or her termination was unlawful

Probationary employee has the burden of showing his or her termination was unlawful

Mendez v New York City Dept. of Educ., 2016 NY Slip Op 06947, Court of Appeals

Finding that Diane Mendezdid not establish that the termination of her probationary employment "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith," the Court of Appeals sustained the New York City Board of Education’s decision to dismiss Mendez from her employment.

The Court of Appeal's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06947.htm

The Trial Court's decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/pdfs/2013/2013_34073.pdf

Viability of claims submitted after the legislative deadline for filing the claim

Viability of claims submitted after the legislative deadline for filing the claim

County of Chemung v. Shah, Court of Appeals, 2016 Slip Opinion 07043

In response to claims filed by municipalities that the State consider and pay claims submitted after the effective date of the legislative deadline for pre-2006 Medicaid reimbursement claims mandated by §61 of the 2012 amendment to the Medicaid Cap Statute, the Court of Appeals held that reimbursement claims filed after April 1, 2012.

Further, said the court, the State was not required to initiate an administrative review of its records to identify and pay for any pre-2006 claims submitted by a municipality.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_07043.htm

A discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer

A discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer

Bevilacqua v DiNapoli, 2016 NY Slip Op 07077, Appellate Division, Third Department

Police Captain Larry A. Bevilacqua applied for accidental disability retirement benefits alleging that he was permanently incapacitated from performing his job duties as the result of an incident that occurred in the course of his investigating an armed robbery.

Captain Bevilacqua testified that he fallen because certain steps had been painted with glossy paint and the top step was sloped in a downward angle. He also testified that, after he fell, he observed that his boots were damp from crossing “the neighbors' lawns.”

However, both the police department's incident report and two other reports signed by Captain Bevilacqua that were created on the day of the incident attribute the fall to his wet boots slipping on the painted porch, with no mention of the sloped step.

The Appellate Division explained that such a discrepancy between the contemporaneous incident reports and disabled individual's testimony at the subsequent hearing presented a credibility issue for the Hearing Officer* and State Comptroller to resolve.

The Hearing Officer denied Captain Bevilacqua’s application, concluding [1] that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law and [2] that the earlier written descriptions of the accident were more credible than Captain Bevilacqua’s testimony attributing his fall to the sloped step. The State Comptroller sustained the Hearing Officer’s determination** and Captain Bevilacqua appealed the Comptroller’s decision.

The Appellate Division sustained the Comptroller’s determination, explaining that “[e]ven accepting [Captain Bevilacqua’s] testimony, the Hearing Officer concluded that [Captain Bevilacqua], who grew up in the area and described the porch as ‘one of those big old North Buffalo porches,’ should have reasonably anticipated that the ‘steps might have not been level.’"

As, in the Appellate Division’s view, substantial evidence supported the Comptroller’s determination that the conditions that caused Captain Bevilacqua 's fall and “the painted surface of the steps, his wet boots and even the sloped step — were readily observable  and that the fall resulted from Captain Bevilacqua 's own misstep or inattention.” The court explained that an application for accidental disability retirement bears the burden of demonstrating his or her entitlement to such benefits and the Comptroller’s determination will be upheld if supported by substantial evidence.

Further, said the court, "an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties."

* A hearing officer’s determinations regarding the credibility of witnesses "are largely unreviewable" by a court [see Board of Educ. of the City School Dist. of the City of New York v Ostrin, 120 AD3d 1105].

** Although Captain Bevilacqua’s application for accidental disability retirement was denied, he was awarded performance of duty disability retirement benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07077.htm

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A public officer threatening to do something that he or she may lawfully due does not constitute coercion

Public officer threatening to do something that he or she may lawfully do does not constitute coercion

City of Dodge City v Webb, Kansas Supreme Court, #109634

The Kansas Supreme Court sustained the conviction of Orie J. Webb of driving under the influence of alcohol. Webb argued that that he had been unconstitutionally coerced into submitting to a breath test for alcohol because police officers threatened to obtain a warrant to have him submit to a "blood test."  The court said that as Kansas law permits law enforcement officers to to obtain a warrant for a blood draw after a breath test refusal, and therefore, the threat to do so was not coercive.

Sometimes an employee may be threatened with disciplinary action if he or she does not immediately resign from the position. Does such a demand constitute coercion?

In Rychlick v Coughlin, 63 NY2d 643, a case challenging an appointing authority's demand that an employee resign from the position or be served with  disciplinary charges, the Court of Appeals ruled that threatening to do what the appointing authority had a right to do -- file disciplinary charges against the employee -- did not constitute coercion so as to make the resignation involuntary.

New York’s Court of Appeals has also addressed the question of using an employee’s statement made under the threat of dismissal from his or her employment in a criminal action taken against the individual. 

In People v Corrigan, 80 NY2d 326, the court ruled that under both state and federal law any statement made under the threat of dismissal from one's position is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.”

Further, in Kastigar v United States, 406 U.S.441, the Supreme Court held that in the event an employee believes information obtained under threat of disciplinary action is going to be used against him or her in a pending criminal proceeding, he or she may request what is now referred to as a “Kastigar hearing” to determine whether the prosecution made any use of either a compelled, immunized statement or any evidence derived directly or indirectly from such a statement in the criminal action.

The decisions is posted on the Internet at:

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2014/20140613/109634.pdf

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Civil rights statutes trump collective bargaining agreement’s arbitration clause unless the wording of the clause regarding arbitrating civil rights complaints is “clear and unmistakable”

Civil rights statutes trump collective bargaining agreement’s arbitration clause unless the wording of the clause regarding arbitrating civil rights complaints is “clear and unmistakable”

Lawrence v. Sol G. Atlas Realty Co., Inc., USCA, 2^nd Circuit, Docket 15-3087

If the relevant collective bargaining agreement’s arbitration clause does not include language requiring the arbitration of statutory discrimination or retaliation claims with wording that is “clear and unmistakable,” the employee may seek to vindicate his or her claims of unlawful discrimination or retaliation as provided in the controlling statute or statutes. The court vacated the district court's grant of defendants' motion to compel arbitration and dismissed the complaint.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/78e241c4-286b-4d8d-bad3-ad9edc00d88f/2/doc/15-3087_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/78e241c4-286b-4d8d-bad3-ad9edc00d88f/2/hilite/