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In re Wie6/10/1998
(Herkimer Co.)
Petition unanimously granted in part without costs and judgment granted in accordance with the following Opinion by Denman, P. J.: 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 Court's prior decision in People v Van Wie (238 AD2d 876).
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).
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 her
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