Appellate Division, 4th Department Case Summaries: October 12, 2011 [Daily Record (Rochester, NY)]

APPELLATE DIVISION, FOURTH DEPARTMENTWorker's Compensation

Indemnification Farm Family Casualty Insurance Company v. Brady Farms Inc.CA 10-02440Appealed from Supreme Court, Genesee County

Background: The plaintiff commenced the action seeking a declaration that it has no duty to defend or indemnify the defendant owner and operator of a farm, in connection with fatal injuries sustained by the defendant's employee. The defendant was insured by a primary policy issued by the plaintiff. The defendant did not have worker's compensation insurance at that time. The court had granted the defendant summary judgment declaring that the plaintiff is obligated to defend and indemnify the defendant. Also, the court determined that the worker's compensation award was covered by the policy.Ruling: The Appellate Division reversed the determination that the plaintiff is responsible for worker's compensation, funeral expenses and attorney's fees. The court found that the policy provided coverage caused by an occurrence if a claim is made or a suit is brought. The worker's compensation claim made on the decedent's behalf established that the estate of the decedent elected to forego the recovery of damages through a civil action and instead sought to pursue what a claim of worker's compensation insurance benefits defendant should secured for him. Therefore, the defendant is substituted for the insurer that should have been hired to provide worker's compensation benefits.Dan D. Kohane of Hurwitz & Fine, PC for the plaintiff-appellant; Henry R. Ippolito of Chamberlain D'Amanda Oppenheimer & Greenfield LLP for the defendant- respondentCPL 440.10 motion

Ineffective Assistance of CounselPeople v. Dombrowski KA 10- 0213Appealed from Erie County Court

Background: After being convicted of second-degree burglary, the defendant moved to set aside the conviction. The basis of the post- judgment motion was ineffective assistance of counsel, specifically, the failure to call defense witnesses who were available. The trial judge denied the motion. As part of the 440.10 motion, the defendant submitted affidavits of the witnesses, setting forth the substance of their proposed testimony, as well their willingness to testify. Two of the witnesses were actually present in the courthouse during trial. Ruling: Order reversed, and case remitted to Erie County Court for further proceedings. To establish burglary, the prosecution must show that the defendant knowingly entered or remained unlawfully in a dwelling with intent to commit a crime. The complainant testified that her romantic relationship with the defendant had ended; however, she admitted that the defendant had occasionally spent the night after the relationship ended. The proposed defense witnesses would have testified to observing the defendant accessing the apartment with keys. Their testimony would have supported the defense theory that the defendant did not enter unlawfully. The defendant was not required to show that he actually resided at the apartment. From the record, the Appellate Division could discern no tactical reason for the defense counsel's failure to call these witnesses to testify. Alan Williams for the defense; and Donna A. Milling for Erie County District Attorney's Office Double Jeopardy

Previous Conviction People v. SandersKA 10-00362 Appealed from Monroe County Court

Background: The defendant pleaded guilty to assault first degree by way of a waiver of indictment in 2003. Five years later, in 2008, he was charged with Criminally Negligent Homicide and Misdemeanor Assault on an unrelated matter. The prosecution sought to use the earlier conviction to impose persistent felony offender status. The sentencing judge on the 2008 conviction found that, for enhanced sentencing purposes, the 2003 conviction was unconstitutionally obtained. After the homicide conviction, the prosecution presented the evidence of the earlier assault to a grand jury and obtained an assault indictment in 2009. The defendant moved to dismiss this indictment on state and constitutional double jeopardy grounds. The prosecution argued that the 2003 conviction was a nullity and reprosecution was therefore not barred. The defense motion to dismiss the new indictment was granted. The prosecution appealed. Ruling: Order affirmed: the indictment is dismissed on constitutional double jeopardy grounds. The previous assault conviction and the new assault indictment are for the same offense. While constitutional double jeopardy does not bar a second prosecution where the earlier conviction is vacated upon a defendant's motion or appeal, the 2003 conviction here is still on defendant's record. "We do not see how there can be two separate convictions on the defendant's record for the same offense without implicating the constitutional prohibition against double jeopardy." Timothy S. Davis for defendant; and Geoffrey Kaeuper for Monroe County District Attorney's Office DWI

Persistent Felony Offender People v. DaggettKA 07-01780 Appealed from Onondaga County Court

Background: The defendant was convicted of DWI and Driving While Ability Impaired by Drugs, both as felonies. He was sentenced as a persistent felony offender, receiving the maximum sentence. One of the issues on appeal concerned the constitutionality and propriety of persistent felony offender status. Ruling: Judgment modified by reducing the sentence to 15 years to life. The persistent felony offender statute was held constitutional in 2010 by the Court of Appeals in People v. Battles, 16 NY3d 54. The sentencing judge properly considered the defendant's youthful offender adjudication as relevant to the defendant's history and character. But imposing the maximum sentence, in addition to persistency status, was excessive. Kristen McDermott for the defendant, defendant pro se; and Victoria M. White for Onondaga County District Attorney's Office