Appellate Division, 4th Department Case Summaries: October 12, 2011 [Daily Record (Rochester, NY)]
| By Daily Record Staff | |
| Proquest LLC |
APPELLATE DIVISION, FOURTH DEPARTMENTWorker's Compensation
Indemnification
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.
Ineffective Assistance of CounselPeople v. Dombrowski KA 10- 0213Appealed from
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
Previous Conviction People v. SandersKA 10-00362 Appealed from
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."
Persistent Felony Offender People v. DaggettKA 07-01780 Appealed from
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
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