Van Wie v. Kirk

• Decision Date: 10 June 1998
• Parties: , 1998 N.Y. Slip Op. 5506 Matter of Floyd W. VAN WIE, Petitioner, v. Honorable Patrick L. KIRK, Herkimer County Court Judge, and Honorable Michael E. Daley, Herkimer County District Attorney, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 469

675 N.Y.S.2d 469

244 A.D.2d 13, 1998 N.Y. Slip Op. 5506

Matter of Floyd W. VAN WIE, Petitioner, v. Honorable Patrick L. KIRK, Herkimer County Court Judge, and Honorable Michael E. Daley, Herkimer County District Attorney, Respondents.

Supreme Court, Appellate Division Fourth Department.

June 10, 1998.

Alfred P. Kremer, Rochester, for Petitioner.

Dennis C. Vacco, NYS Dept. of Law, Syracuse, for Respondent Kirk.

Michael E. Daley, Herkimer, for Respondent Daley.

Before DENMAN, P.J., and HAYES, PIGOTT, BALIO and FALLON, JJ.

DENMAN, Presiding Justice:

In this original CPLR article 78 proceeding, petitioner seeks a judgment prohibiting the prosecution of petitioner on indictment No. 94-21; dismissing that indictment; vacating two confessions of judgment executed by petitioner; vacating an affidavit in which petitioner withdrew his claim for workers' compensation benefits; directing the County of Herkimer to refund to petitioner any sums paid pursuant to those judgments; and directing that the matter, if remitted, be heard by a Judge other than respondent Hon. Patrick L. Kirk, Herkimer County Court Judge. In his brief, petitioner additionally requests appointment of a special prosecutor in place of respondent Hon. Michael E. Daley, Herkimer County District Attorney (District Attorney), in the event that criminal charges are refiled against petitioner.

In seeking such relief, petitioner contends that he is innocent of any crime; that, if a crime was committed, it was committed against Oneida County, not Herkimer County; that, if a crime was committed, it was committed in Oneida County, beyond the jurisdiction of respondents; that the matter is within the exclusive jurisdiction of the Workers' Compensation Board (Board) and thus beyond respondents' jurisdiction; and that the prosecution violates the ex post facto clause of the Federal Constitution. Petitioner contends that Judge Kirk should have credited those contentions as a matter of law and granted petitioner's motion to dismiss the indictment, as assertedly required by this We conclude that prohibition does not lie against respondents in these circumstances and that our prior decision does not require dismissal of the indictment. We conclude, however, that petitioner is entitled to vacatur of the confessions of judgment and affidavit of withdrawal executed by him in connection with his plea, which was set aside by the effect of our prior decision (see, People v. Van Wie, supra, at 877, 661 N.Y.S.2d 112).

Court's prior decision in People v. Van Wie, 238 A.D.2d 876, 661 N.Y.S.2d 112.

THE WORKERS' COMPENSATION CLAIM

The prosecution of petitioner arises out of his pursuit of a claim for benefits pursuant to the Volunteer Firefighters' Benefit Law. Such benefits are paid by counties, as self-insurers, pursuant to the Workers' Compensation Law. The record establishes that petitioner was injured on May 30, 1990, while serving as a member of the Old Forge Fire Department in Herkimer County. Petitioner, a scuba diver, injured his back and leg while recovering a drowning victim from Fourth Lake. Petitioner reported the injury to his chief, but did not immediately file a compensation claim.

When the pain in his back and leg did not subside, petitioner visited Dr. Webster, his physician, on August 1 and 20, 1990. The doctor recorded the complaints, diagnosed petitioner with sciatica and a possible herniated disc, and referred petitioner to an orthopedist, Dr. Rinehart.

On September 18, 1990, petitioner reinjured his back while pulling another drowning victim from White Lake in Oneida County. At the time, petitioner was acting as a "borrowed servant" of the Forestport Fire Company in Oneida County, pursuant to a mutual aid agreement between Herkimer and Oneida Counties.

Petitioner first saw Dr. Rinehart on September 25, 1990. Dr. Rinehart observed that petitioner walked with a limp, was unable to bend forward, and was limited in the movement of his legs. Dr. Rinehart diagnosed petitioner with a "herniated nucleus pulposus L-5, S-1 left", prescribed pain medication, and ordered an MRI, which confirmed a "large herniated disc at 5-1 on the left."

Petitioner applied for workers' compensation benefits through the Forestport Fire Company on October 12, 1990, claiming total disability. The Forestport Fire Company submitted the claim to the Board, and petitioner began receiving full benefits from Oneida County on November 7, 1990, retroactive to September 25. Herkimer and Oneida Counties agreed that Oneida County would pay benefits provisionally, pending resolution of the issue of which county should be responsible. Neither county contested the legitimacy of petitioner's compensation claim.

On November 12, 1990, petitioner underwent a laminectomy by Dr. Rinehart and was discharged from the hospital two days later. Dr. Rinehart rendered postoperative care on November 20, 1990, December 18, 1990, and January 15, 1991. Because petitioner was still experiencing pain and various limitations, Dr. Rinehart filed a C-4 form on January 23, 1991, concluding that petitioner was totally disabled from work as a result of a compensable injury.

A Workers' Compensation Law Judge (WCLJ) initially heard the matter on January 29, 1991. Oneida County urged that the WCLJ direct payment pursuant to Workers' Compensation Law § 25(1)(f), which provides for payment of benefits by one insuring entity where the only issue is which entity is responsible. Oneida County placed Herkimer County on notice of its potential liability. The WCLJ made a preliminary determination of total disability and confirmed the payment of benefits to date.

Between late January and October 1991, petitioner saw Dr. Rinehart 12 times and was referred to several other doctors and therapists. Dr. Rinehart recorded the continuing complaints of back and leg pain and continued to mark petitioner as disabled from work, despite his attempt to return to "light work" at Dr. Rinehart's urging.

In November 1991, another compensation hearing was held at which both Oneida and Herkimer Counties were represented. Again, the only issue raised was whether After November 1991, petitioner continued to see Dr. Rinehart and was referred to another orthopedic surgeon, Dr. DuMond. Both doctors diagnosed petitioner as having a permanent partial disability rendering him unable to work.

Oneida or Herkimer County was responsible to pay benefits. The WCLJ continued the award at $340 a week based on a finding of total disability and adjourned the matter until January 1992, pending a physical examination by a physician for the Board. Without contesting the legitimacy of petitioner's claim, Herkimer County took the position that Oneida rather than Herkimer County should be responsible for benefits because petitioner had been serving Oneida County at the time of the reinjury.

At another hearing in May 1992, at which both counties again were represented, the WCLJ considered those diagnoses as well as the report of the Board's own physician. The Board's physician concluded that petitioner was totally disabled and referred him to the Department of Neurosurgery at Upstate Medical Center. The counties continued to dispute which county was responsible for payment of benefits, which the WCLJ again confirmed at a rate of $340 per week.

Beginning in July 1992, petitioner complained of problems with his knee. Dr. Rinehart ultimately diagnosed petitioner with a torn meniscus, recommended orthoscopy, and concluded that the knee problem was the result of petitioner's having favored his injured back. At the insistence of Oneida County, Dr. Rinehart obtained an independent medical opinion from Dr. Nastasi, who confirmed the knee injury.

In January 1993, the WCLJ held another hearing at which petitioner sought authorization for surgery on his knee. Again, the only issue raised was which county was responsible for payment. In February 1993, the WCLJ issued another decision confirming the award of $340 per week and authorizing surgery on petitioner's left knee. Dr. Rinehart performed that surgery on February 8, 1993. Following examinations in February, March, and April 1993, petitioner was found to have a permanent partial disability because of chronic back and leg pain.

In June 1993, the Board's doctor reiterated that petitioner had a temporary total disability as a result of his back injury and recent knee surgery. In September 1993, a different doctor for the Board found that petitioner had a permanent partial disability. The first report coincided with another hearing on June 1, 1993, which resulted in a further order, dated June 17, 1993, continuing the award of $340 per week based on a finding of disability. Herkimer County again asked the WCLJ to determine which county was liable for benefits. On September 23, 1993, at Oneida County's request, the WCLJ reduced the benefits to $280 per week and reserved decision concerning which county was liable. Petitioner continued to see Dr. Rinehart and several other doctors throughout the remainder of 1993.

THE CRIMINAL INVESTIGATION, THE INDICTMENT, AND FURTHER

PROCEEDINGS BEFORE THE BOARD

In September 1993, petitioner learned that he was being investigated by the District Attorney for fraud in pursuing the compensation claim. The apparent impetus for the investigation was a discrepancy in the medical records concerning the date of injury, and also the fact that petitioner had worked while receiving benefits. Upon learning of the investigation, Dr. Rinehart attributed the date discrepancy to his own misunderstanding, not to inconsistent statements by petitioner, and placed that explanation in petitioner's medical record. Dr. Rinehart admitted misrecording the date of the second accident, despite petitioner's consistently relating it as September 18, 1990, because Dr. Rinehart was confused by petitioner's reference to a third scuba diving incident (apparently non-service related) occurring on ...