In re the Claim of Weigand

Nov 5, 1992
Versions:187 A.D.2d 791
590 N.Y.S.2d 142
1992 N.Y. App. Div. LEXIS 12583

In the Matter of the Claim of Todd A. Weigand, Appellant. Elbridge True Value Hardware, Respondent; John F. Hudacs, as Commissioner of Labor, Respondent.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 28, 1991, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment as a result of an act constituting a felony in connection with such employment.

We affirm the decision of the Unemployment Insurance Appeal Board which disqualified claimant from receiving unemployment insurance benefits because he had "signed a statement admitting” that he had committed "a felony in connection with [his] employment” (Labor Law § 593 [4]). Claimant had been charged with two misdemeanors stemming from the theft of merchandise and cash from his employer. The case was adjourned in contemplation of dismissal and ultimately dismissed. Before that happened, however, claimant signed a sworn statement admitting that he began stealing merchandise from his employer in January 1989 and continued to do so until his termination. He also admitted that in the summer of 1989 he started making false returns *792on the cash register and keeping the money, and that he did this "numerous times each month”; he acknowledged misappropriating at least $3,000 in this manner. The Board noted that larceny of $1,000 is a felony in this State (see, Penal Law § 155.30 [1]) and that, while in this instance no single theft amounted to that sum, claimant "clearly operated with a single intent and scheme to deprive the employer of his property over a period of months”. Claimant contends that there was no common scheme and that he was only engaged in a series of separate and impulsive undertakings (see, People v Cox, 286 NY 137, 142). This, however, was a question of fact for the Board to resolve (see, Matter of Chassman [Levine], 50 AD2d 1000), and as this is not a criminal case the Board’s findings need only be supported by substantial evidence, which they were (see, Matter of Gill [New York Tel. Co.—Ross], 78 AD2d 749).

We also reject claimant’s contention that because the records of the criminal proceeding had been sealed pursuant to CPL 160.50 it was improper for the Board, to have considered his statement. When an individual commences a civil action and affirmatively places the information protected by that statute in issue, the confidentiality privilege is waived (see, Wright v Snow, 175 AD2d 451, lv dismissed 79 NY2d 822). The same result obtains here. By applying for benefits, claimant placed in issue the question of whether he had committed a felony in connection with his employment.

Yesawich Jr., J. P., Levine, Crew III, Casey and Harvey, JJ., concur. Ordered that the decision is affirmed, without costs.