In the Matter of David W. Howard, Respondent,v.Stature Electric, Inc., et al., Appellants. Workers' Compensation Board, Respondent.BriefN.Y.February 5, 2013Argued By: Susan B. Marris, Esq. Time Requesed: 20 Minutes STATE OF NEW YORK Court of Appeals In the Matter of the Claim for Compensation Benefits under the Workers’ Compensation Law, made by DAVID W. HOWARD, Employee, Claimant-Respondent, -against- STATURE ELECTRIC, INC., Employer and THE STATE INSURANCE FUND, Insurance Carrier Appellants, -and- WORKERS’ COMPENSATION BOARD, Respondent. Case No. 507356 WCB No. 6030 3798 BRIEF ON BEHALF OF APPELLANTS Stature Electric, Inc. (Employer) and The State Insurance Fund (Carrier) SUSAN B. MARRIS, Of Counsel Dated: May 23, 2012 MICHAEL MILIANO Attorney of Record/Deputy General Attorney Of The State Insurance Fund Attorney for Appellants 1045 Seventh North Street Liverpool, New York t 3088 (315) 453-6530 DISCLOSURE STATEMENT The State Insurance Fund is a state agency continued in the department of labor for the purpose of insuring employers against liability for personal injuries or death sustained by their employees. Stature Electric, Inc., is a foreign business corporation with no known parents, subsidiaries, or affiliates but with a "Name History:’ of Amot, Inc. TABLE OF CONTENTS Disclosure Statement ............................................................... Table of Contents ............ . ..................................................... Table of Cases and Authorities ................................................... Jurisdictional Statement ........................................................... Question Presented for Review .................................................... Preliminary Statement ............................................................. Statement of Facts .................................................................. Argument ........................................................................... POINT I: .............................................................................. The Third Department e~ed when it Distinguished an Alford Guilty Plea from a Non-Alford Guilty Plea POINT II: ........................................................................... The Third Department Erred when it found that SIF did not Meet its Burden of Proving Identity of Issues Conclusion ............................................................................. i ii iii iv 1 1-3 3-5 6-15 6-12 12-15 15-16 Cases TABLE OF CASES AND AUTHORIT~S Matter of Hopfl, 48 NY2d 859 [1979] ................................................9 Matter ofLosurdo v Asbestos Free, Inc., 1 NY3d 258 [2003] ....................14 Matter of Silmon v Travis, 95 NY2d 470 [2000] ..................................passim People v Aksoy, 84 NY2d 912 [1994] ................................................13 People v Hill, 16NY3d 811 [2011] ......................................................6 People v Miller, 91 NY2d 372 [1998] ............................................7, 12, 17 City of New York v College Point Sports Assn., Inc., 61 AD3d 33 [2~d Dep’t 2009] .........................................................................13 Howard v Stature Electric, Inc., 72 AD3d 1167 [3rd Dep’t 2010] ...........2, 5, 9, 11 Kuriansky v Professional, Inc., 158 AD2d 897 [3rd Dep’t 1990] .................10,11 Matter of Aaron H. v Barbara H., 72 AD3d 1602 [4th Dep’t 2010] ...............7, 10 Matter of Bottieri v New York State Dept. of Taxation & Fin. 27 AD3d I035 [3rd Dep’t 2006] ........................................................... 14 Matter of Cumberland Phanmacy, !nc. v B!um, 69 A_D2d 903 [2nd Dep’t 1979] .......................................................................7, 8, 10 Matter of Dieter v Trigen-Cinergy Solutions of Rochester, 14 AD3d ~a8tt[e3~Pe~e2r0e~sSe]£/vVAd~22~040~2dd868~5[~30~SD] ep’t I984], lv denied10’ 11, 14 62 NY2d 605 [1984] 7 Matter of State of New York v Mark S., 87 AD3d 73 [3ra Dep’t 2011] ..........7 Merchants Mutual Ins. Co. v Arzillo, 98 AD2d 495 [2nd Dep’t 1984] ..........10, 13 Olsson v MacDonald, 16 AD3d 1017 [3rd Dep’t 2005] ........................... 10, 13 People v Tausinger, 21 AD3d 1181 [3rd Dep’t 2005] ................................ 7 People v Ture, 941 NYS2d 530 [3ra Dep’t 2012] .................................... 6 ¯ rd ~People v Washington, 51 AD3d 1223 [3 D,e~ t 2008] .............................6 State ofNewY~V v ~itt l Ztl ) 1 [3r ~’ ,......... , A ._ A_D...d 9_1 De~t !988] ....................10 11 Zharov v NYS Dep’t of Health, 4 AD3d 580 [3~d Dep’t 2004] ................... 10, 11 Statutes WCL § !14-a [1] ........................................................................14 iii JIfRISDICTIONAL STATEMENT This is an appeal from a non-final Order of the Appellant Division, Third Department, which is now appealable pursuant to CPLR 5602 [a] [1] [ii], as the Workers’ Compensation Board has issued a final decision filed November 30, 2011. (Record on Appeai at A1 i-Ai6.) The Court of Appeals laas jurisdiction over this motion and the appeal pursuant to CPLR 5602 [a] [1] [ii]. QUESTION PRESENTED Whether the Appellate Division, Third Department misapplied the controlling principles of law and misapprehended the relevant facts when it disregarded well- settled Court of Appeals precedent that an Alford plea may be used in an administrative forum to prove a violation of administrative law. A~SWER The Third Department erred when it held that an Alford plea to the same act, which constituted a violation of Workers’ Compensation Law § 114-a, could not be used in the Workers’ Compensation forum to establish a violation of Workers’ Compensation Law § 114-a. PRELIMINARY STATEMENT_ ~’-~ °*~~ Insurance ~,,,,A z,,¢x~,,~ ,~,~d~ workers’ aamp~n~tJan inm~rance to the employer Statare Electric, Inc. (collectively referred to as "SIF"). David W. Howard ("Claimant") is the workers’ compensation claimant, and the Workers’ Compensation Board ("Board") is a respondent herein. By Memorandum of Decision, m~m~ ’~"÷~’*’~",_,,.~,~,,., 6, 2008, the Board ~,,,,,~t~..~.~ that claimant violated Workers’ Compensation Law ("WCL") § l14-a based upon claimant’s criminal conviction following a guilty plea to Insurance Fraud. By Memorandum and Order, entered April 1, 2010, the Appellate Division, Third Department determined that because claimant’s conviction was via an Alford plea, the claimant did not make any factual admissions; therefore, the issue of whether claimant committed the charged conduct was not determined in the criminal action. (Ho~vard v Stature Electric, Inc., 72 AD3d 1167, 1169-1170 [3rd Dep’t 20!0].) The Third Department remanded the matter to the Board for a hearing to detern~ine whether claimant violated WCL § ! !4-a. By Notice of Motion to the Third Department, dated June 4, 2010, SIF requested Reargument or in the alternative, Leave to Appeal to the Court of Appeals. By Decision and Order on Motion, decided and entered July 29, 2010, SIF’s Motion was denied. By Notice of Motion, dated August 26, 2010, SW requested that this Court grant Leave to Appeal. By Order decided November 18, 2010, this Court dismissed the motion upon the ground that the order sought to be appealed from was not final. There was an evidentiary hearing before a WCL Judge (~WCLJ"), who found that claimant did not violate WCL § 114-a. SIF sought review of that decision, and by Memorandum of Decision, filed November 30, 2011, the Board af~_rmed the WCLJ’s decision and found no violation ofWCL § 114-a. SIF filed a motion for Leave to Appeal to this Court; and by Order, decided and entered March 27, 2012, this Court granted SIF’s motion for Leave to Appeal. The Court of Appeals has jurisdiction over this appeal pursuant to CPLR 5602 [a] [1] [ii]. 2 On appeal, SIF submits that the Appellate Division, Third Department disregarded well-settled law, including this Court’s precedent, when it held that an Afford plea to insurance fraud could not be the basis for a finding of a violation of WCL § l14-a. This is claimant, injured his compensation benefits. SW~Wr~w OF FACTS a workers’ compensation matter, wherein David Howard, the back in March 2003, and began collecting workers’ Claimant returned to work in July 2003; then stopped working in August 2003 and resumed collecting workers’ compensation lost wage benefits. (Record on Appeal at 5-6.)5 Claimant subsequently misrepresented his work status to SIF. Based npon those misrepresentations, SIF’s Division of Confidential Investigations commenced an investigation, ~hich culminated in claimant’s arrest. On November 22, 2005, claimant was arrested and charged with Insurance Fraud 3~d, Grand Larceny 3rd, Offering a False Instrument 1~t, and violating WCL § 114 [1]. (Id. at 83-84.) On June 25, 2007, claimant by way of an Alford plea, pled guilty to Insurance Fraud 4t~, Fraudulent Practices. (Id at 77-81.) On August 20, 2007, claimant was sentenced to a one year conditionaI discharge. (Id. at 82.) I References in this form are to the Record on Appeal. 3 At a workers’ compensation hearing on December 13, 2007, based upon claimant’s criminal conviction, SIF raised a violation of WCL § 114-a. (_~d. at 86.) SIF produced the arrest information, the transcript of the plea allocution, and an extract of the court minutes. (Record on Appeal at 86, 76-84.) By reserved decision, filed March 14, 2008 (amended April 4, 2008), the WCLJ found that a hearing was necessary on the issue of a violation of WCL § 114-a. (~rd. at 107, 109.) SIF filed an Application for Board Review of that decision. (Id. at ! 12-117.) By Memorandum of Decision, filed October 6, 2008, the Board modified the WCLJ’s decision. The Board found that based upon claimant’s criminal conviction following a guilty plea to Insurance Fraud, there was no need for a hearing regarding a violation of WCL § 114-a. Specifically, the Board determined that as a matter of law, the criminal plea may be given preclusive effect, which vitiated the need for a hearing. (Id. at 155.) By Notice of Appeal, dated and served October 7, 2008, claimant appealed the Board Decision to the Third Department. (Id. at 158.) By Memorandum and Order, filed April 1, 2010, the Third Department found that claimant was entitled to a hearing, because the doctrine of collateral estoppel did not apply. (Howard v Stature Electric, Inc., 72 AD3d 1167 [3rd Dep’t 2010].) Specifically, the Third Department held the doctrine inapplicable because it found no identity of issues. (Id. at 1170.) To satisfy this element, the court ruled that the issue in question must have been actually litigated and resolved in the prior 4 proceeding. (Id.) The appellate court found that because claimant pled guilty by way of an A/ford plea, the claimant did not make any factual admissions. Therefore, the court concluded that whether claimant committed the charged conduct had not been determined in the criminal action. (Id. at 1169-1170.) l~ov, e gwr,~,ev,~me~, agreed with the Board’s prior decisions, wherein the Board found a violation of WCL § 114-a based upon a (non-A/ford) guilty plea to the criminal charge. In footnote 3 the Third Department declared: "It]he Board has previously found violations of Workers’ Compensation Law § 114-a based upon guilty pleas (see e.g. Europa Tile & Masonary, 2007 NY Wrk. Comp. Lexis 6740, *6, 2007 WL 2923176, *3 [WCB No. 09218601, Aug. 7, 2007]; Matter of Lewis County Dairy, 2007 NY Wrk. Comp. Lexis 10675, *6-7, 2006 WL 3927451, *3 [WCB No. 60002515, Nov. 29, 2006]). In these cases, however, the pleas included admissions to the acts constituting the crime." (Howard 72 AD3d at 1170 n 3.) SIF respectfully submits that the Third Department erred when it reversed the Board’s finding that claimant violated WCL § 114-a based upon his criminal conviction to Insurance Fraud; and remitted the matter to the Board for an evidentiary hearing. 5 ARGUMENT Point I THE THIRD DEPARTMENT ERRED WHEN IT DISTINGUISHED AN .4LFORD GUILTY PLEA FROM A NON-ALFORD GUILTY PLEA It is well-settled that an AIford plea binds as strongly as an admission of the fi~cts constituting the crime and is the equivalent of a conviction. As such, the conviction vitiates the need for an administrative hearing in an administrative forum. Accordingly, the Third Department erred when it reversed the Board’s finding that claimant violated WCL § 114-a based upon his criminal conviction to Insurance Fraud; and remitted the matter to the Board for an evidentiary hearing. It is the law of this State that an Alford plea must be "the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt." (Matter ofSilmon v Travis, 95 NY2d 470, 475 [2000]; People v Washington, 51 AD3d 1223, 1223-24 [3ra Dep’t 2008].) In People v Hill (!6 ~NY3d 8!!, 8!4 [20! !]), this Coart reiterated its long standing principle that ’°’Alford pleas are--and should be--rare’ (id. at 474), and are ’allowed only when, as in AIford itself, [they are] the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt.’" (ckation omitted.) In People v Ture Q__ AD3d ~ 941 NYS2d 530 [3rd Dep’t 2012]), the Third Department recently declared that lain Alford plea may only be allowed 6 when ... there is strong evidence of defendant’s guilt before the court." (Ture at 530.) Typically, defendants enter Alford pleas to avoid the risk of a lengthier sentence if convicted after a trial. (See People v Tausinger, 21 AD3d 1181, 1182 [3’d Dep’t 2005].) It is well-settled law that a conviction base~ up,~** an A~jv, d vLa ~s treated ~ the same mariner as a conviction based upon a non-Alford guilty plea. In Silmon, this Court declared that an Alford plea "may generally be used for the same purposes as any other convictiom" (Silmon, 95 NY2d at 475; People v Miller, 91 NY2d 372, 378 [1998].) Additionally, this Court declared in Miller: "a plea in which a defendant admits guilt shares an identity with an A~ford plea in that both result in convictions." (Miller at 378 (citation omitted).) Moreover, protestations of innocence in a subsequent civil or administrative proceeding will not limit the preclusive effect of an Alford plea. (See Matter of State of New York v Mark S., 87 AD3d 73, 75 n 1 [3~d Dep’t 2011], lv denied 17 ~.-NY3d 7!4 [20!1] ("Alford pleas . . . ’are no different from other guilty pleas’"); Matter of Aaron H. v Barbara H., 72 AD3d 1602 [4th Dep’t 2010], lv denied NY3d __, 907 NYS2d 752 [2010]; Matter ofFeuereisen v AxeIrod, 100 AD2d 675, 676 [3~d Dep’t 1984], lv denied 62 NY2d 605 [1984]; Matter of Cumberland Pharmacy, Inc. v Blum, 69 AD2d 903,415 NYS2d 898 [2~d Dep’t 1979] (a plea 7 binds as strongly as an admission of the facts constituting the crime charged and such a guilty plea constitutes sufficient evidence in the civil proceeding).) In Aaron H., the respondent mother in a family court proceeding successfully argued that the petition regarding sexual abuse should be dismissed. (Aaron H., 72 AD3d at 1603.) SubsequepX to the dismissa!, the mother entered an Alford plea to sexual abuse. Thereafter, based upon the Alford plea, the family court vacated its dismissal. (Id.) The Appellate Court afftrmed, holding that the mother’s Alford plea conviction to ’°sexual abuse eonstltnted eonclt~sive proof of the abuse allegations in the petition with respect to that child." (_rd. (citations omitted) (emphasis added).) Similarly, in Cumberland Pharmacy, the criminal defendant pied guilty without an admission of the facts constituting the crime (also known as a "Serrano pIea"). (Cumberland Pharmacy, 69 AD2d at __, 415 NYS2d at 900.) Based upon that conviction, the defendant was disqualified from participating in the Medicaid program. (Id.) The Second Department declared: "[a] conviction is conclusive proof of the underlying facts upon which it rests and the defendant is estopped from relitigating those facts in any future proceeding." (Id. (citations omitted).) in this case, the Third Department fo-tmd that at the criminal proceeding, the claimant "made no factual admissions" and that claimant’s counsel indicated that claimant was "pleading guilty ’without an admission of wrongdoing.’" (Howard, 72 AD3d at 1169-70.) As demonstrated above, claimant’s Alford plea cannot shield claimant from a subsequent civil penalty. It is respectfully submitted that the Third Department erred when notwithstanding that the claimant pled guilty to insurance fraud, it remitted this case for an evidentiary hearing. An Alford Plea’s Preclusi~e Effect is Not Limited to The Con,Action In Howard, by citing to, among others, Matter of ttopfl, 48 NY2d 859 [1979], the appellate court attempted to limit the use of the Alford plea to the conviction itself. (Id. at 1169.) Although in Hopfl, an attorney was automatically disbarred because of a felony conviction based upon an Alford plea, this Court has not limited the use of an Alford plea to civil or criminal penalties, which arise only when there is a conviction. In that regard, while noting that an Aiford plea is and should be rare, this Court in Silmon declared: "[1]ike any other guilty plea, it [Alford plea] may be used as a predicate for civil and criminal penalties." (Silmon, 95 NY2d at 475 (citations omitted) (emphasis added).) The civil courts consistently treat a conviction based upon an Alford plea in the same mariner as a conviction based upon a non-Alford guilty plea. (e.g. Aaron H., 72 AD3d 1602 (Alford plea to sexual abuse constituted conclusive proof of the abuse allegations in the family court petition); Cumberland Pharmacy, 69 AD2d at __, 415 NYS2d at 900 ("[Alford] guilty plea binds it as strongly as any admissions 9 of the facts constituting the crime charged and its guilty plea constitutes sufficient evidence for the finding that it engaged in an unacceptable practice"); Merchants Mutual Ins. Co. v Arzillo, 98 AD2d 495, 504 [2na Dep’t 1984] (court found that there is ample authority, which holds that a guilty plea is equivalent to a conviction after trial for issue preclusion and it precludes relitigation in a subsequent civil action).) Indeed in Merchants Mutual, the Appellate Court held that a conviction based upon a "Serrano or Alford guilty plea" is. subject to the doctrine of issue preclusion in a civil matter. (Merchants Mutual at 505.) Additionally, the Third Department’s own precedent demonstrates that a criminal guilty plea may be used in a civil proceeding to prove a violation of civil law. (Olsson v MacDonald, 16 AD3d 1017 [3rd Dep’t 2005]; Matter of Dieter v Trigen-Cinergy Solutions of Rochester, 14 AD3d 748 [3ra r~..,÷ onn~~ L ~.,~,,Jj, !v dismissed 4 NY3d 881 [2005]; Zharov v NYS Dep ’t of Health, 4 AD3d 580 [3~d Dep’t 2004]; Kuriansky v Professional, Inc., 158 AD2d 897 [3rd Dep’t 1990]; State of New York v Britt, 141 AD2d 911, 912 [3ra Dep’t 1988] (the plea and conviction constitute conclusive proof of the underlying facts in the civil action based on the same transaction and "conclusively establish a violation of the statute [Social Service Law § i45-b]’).) In Dieter, the Third Department affirmed the Board when it ruled that claimant violated WCL § 114-a and was disqualified from receiving an award. 10 (Dieter at 749.) This finding was made upon the claimant’s conviction based upon a guilty plea. (Id. at 748-49.) Additionally, in Zharov, a physician pled guilty to criminal insurance fraud, and based upon that plea, the State Board for Professional Medical Conduct found a violation of the education law and penalized the physician by revokdng her license. (Zharov at 580.) Similarly, in Kuriansky, the Third Department held: "[a] plea of guilty, even a Serrano plea in which a defendant’s version differs from the crime charged but he chooses not to contest the underlying facts . . . can have collateral estoppel effect." (Kuriansky at 899 (citations omitted) (emphasis added).) Furthermore, as indicated in its footnote 3 in the case at bar, the Third Department seemingly concurred with those Board decisions, wherein the Board found violations of WCL § 114-a based upon the claimant’s criminal conviction via non-Alford guilty pleas. (Howard at ! 170 n 3.) Therefore, it is clear that the appellate court’s determination that the instant claimant is entitled to a hearing regarding a WCL § 114-a violation, is premised on its treating an Alford plea differently from a non-.4[ford guilty plea. Based upon the above cited cases, it is settled law that an Alford plea is treated the same as a non-Alford plea; and the Alford plea may be used in an administrative forum to prove a violation of administrative law. In this case, in accordance with this Court’s and Appellate Division precedents, the Board properly used the Alford plea as a predicate for a civil penalty pursuant to WCL § 114-a. The Third Department committed reversible error by reversing the October 6, 2008 Board Decision. (Silmon, 95 NY2d 470; Miller, 91 NY2d 372.) Additionally, the Third Department erred when it found that SIF did not meet its burden of demonstrating the identity of issues; and therefore, collateral estoppe! did not apply. Point II THE THIRD DEPARTMENT ERRED ~VHEN IT FOUND THAT SIF DID NOT MEET ITS BURDEN OF PROVING IDENTITY OF ISSI~S The Third Department’s finding that SIF "did not meet its burden of demonstrating the identity of issues" (Howard, 72 AD3d at I169), is without support in the law or the facts. As the arrest and conviction are based upon the same circumstances as the vioiafion of WCL § "" " ~ "i t4-a, ~r clearly met its burden of proof. When invoking collateral estoppel based upon a guilty plea, the identity of issues is established when the defendant in the criminal action is before the civil tribunal based upon the same underlying act. (City of New York v College Point Sports Assn., Inc., 61 AD3d 33, 43 [2nd Dep’t 2009]; Olsson, 16 AD3d at 1017 ("party in a civil action may be collaterally estopped from challenging liability when that party has pleaded guilty to criminal charges addressed to the same incident"); Merchants Mutual Ins. Co., 98 AD2d 495.) The Appellate Division in 12 City of New York declared that: "a plea of guilty to a criminal charge, where the same transaction is at issue in a civil litigation, is the clearest case for the application of collateral estoppel." (Id at 43 (citation omitted).) Moreover, the court in City of New York determined that when defendants enter criminal pleas, they waive the opportunity to contest the facts underlying the charge; and therefore they must accept the consequence of the plea in another forum. (Id.) In this case, it is undisputed that claimant was arrested on the basis of submitting to SIF false written statements regarding his work activity, while he was collecting workers’ compensation indemnity benefits. (Supra at 3-4.) It is also undisputed that claimant pled guilty to Insurance Fraud in the Fourth degree. (Zd. at4.) l~ne crime of insurance fraud is committed: ’:upon the filing of a false ’written statement as part of, or in support of... a [fraudulent insurance] claim for payment.’" Moreover, documents (People v Aksoy, 84 NY2d 912, 914 [1994] (citation omitted).) the criminal act of insurance fraud "encompasses the filing of and the making of a false claim for payment." (Id.) A written statement within the meaning of the statute may consist of a "materially false or misleading document" submitted to the insurer. (Id.) Similarly, WCL § 114-a [1] provides in part: "[i]f for the purpose of obtaining compensation pursuant to section fifteen of this chapter, or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact .... " With respect to a WCL § 114-a fraud finding, a misrepresentation is material when it is significant or essential to the issue at hand. (Matter ofLosurdo v Asbestos Free, Inc., 1 NY3d 258, 265 [2003].) In Matter of Bottieri v New York State Dept. of Taxation & Fin. (27 AD3d 1035 [3rd Dep’t 2006]), the Third Department affirmed the Board’s finding of a violation of WCL § !14-a based upon that claimant’s fraudulent response to SIF’s questionnaire regarding his work status. (See also Dieter, 14 AD3d at 749 (claimant misrepresented his work stares on an application for additional payment).) claimant’s fraudulent responses to § 114-a. Clearly, pursuant to this statute, the instant SIF’s questionnaire is a violation of WCL In the instant case, as the criminal conviction and the workers’ compensation violation of WCL § 114-a are both based upon the same act (submission of the questionnaire with false responses related to claimant’s work activity), SIF has met its burden of demonstrating the identity of issues. Moreover, in the court below, claimant made no argument related to identity of issues. Indeed, claimant’s only 14 argument on appeal was that he was entitled to a hearing on the issue of a WCL § 114-a violation, because his guilty plea was by way of an Alford plea; and as such, he made no factual admission. (Claimant’s Third Department Brief at 6-10.) CONCLUSION The issue before this Court is whether a claimant who pleads guilty by way of an Alford plea to a crime related to workers’ compensation fraud, may have that conviction support a violation ofWCL § 114-a. It is settled law that an Alfo~dplea may be used in an administrative forum to prove a violation of administrative law. As demonstrated above, the Third Department misapprehended both the law and salient facts when it reversed the October 6, 2008 Board Panel Decision, which found a violation ofWCL § 114-a based upon claimant’s Alford plea conviction in the criminal matter. Specifically, the Third Department ignored Court of Appeais and other appellate court precedent when it tried to limit the use of an Alfo~d plea to the conviction itself. It is settled law that an Alford plea may generally be used for the same purposes as any other conviction, which includes using the AIfordplea to prove a violation of civil law. (Silrnon v Travis, 95 NY2d 470, 475 [2000]; People v Miller, 91 NY2d 372 [1998].) In this case, in accordance with the Court of Appeals and Appellate Division precedent, the Board properly used the Afford plea as a predicate for a civil penalty pursuant to WCL § 114-a. 15 Secondly, the Third Department erred when it found that collateral estoppel did not apply because SIF did not meet its burden of demonstrating the identity of issues. Although claimant never raised this issue, SIF clearly met its burden. To that end, the criminal conviction and the violation ofWCL § 114-a, are both based upon the same acts, to wit, claimant’s submission of false responses regarding claimant’s work activity. Therefore, SIF met its burden of demonstrating the identity of issues. Accordingly, for the reasons stated above and in SIF’s Brief ~filed with the Third Department, SIF respectfully requests that this Court reverse the Third Department’s April 1, 2010 Memorandum and Order and reinstate the Board’s October 6, 2008 decision. Dated: May 23, 2012 By: MICHAEL MILIANO Attorney of Record/Deputy General Attorney of The State Insurance Fund Attorney for Appellants Susan B. Marris, of Counsel i045 Seventh North Street Liverpool, New York 13088 (315) 453-6530
