People v Adams (KA 10-01684) – D argued his discovery rights were violated because of prosecution’s failure to retain videotape of traffic stop. 4D rejects argument because existence of tape was contested and was thus a credibility issue for jury. Court below granted D’s request for adverse inference charge if jury credited D’s version that there was a videotape.
· People v Backus (KA 10-01297) – Sentences for vehicular assault in the second degree (E) reduced to 1 year definite sentences (from 1 to 3 indeterminate). Court noted that prior to D’s release pursuant to CPL 460.50 (1) he served 8 months in jail. Since his release D completed chemical dependency treatment, refrained from alcohol, maintained employment, pursued 2nd degree, and got license back. Court also noted nature of crime and history and character of D [Fahey, J. dissenting].
· People v Boutin (KA 10-01020) – D convicted of assault-1st and reckless endangerment-1st, both of which must be committed under circumstances evincing a depraved indifference to human life. 4D finds evidence legally insufficient to show depraved indifference. D kneed in the face a drunken bar patron who had been carried out of bar and was lying on the ground. Victim’s head hit ground and he suffered facial fractures and internal head injuries requiring emergency surgery. This was not sufficient proof of “wanton cruelty, brutality or callousness directed against a particularly vulnerable victim” combined w/ utter indifference to life or safety of helpless target. 4D modified conviction to assault-3rd and reckless endangerment-3rd and vacated sentence.
· People v Butler (KA 09-02408) – D’s waiver of appeal encompassed challenge to restitution order inasmuch as amount of restitution was included in plea agreement.
· People v Grady (KA 09-01940) – “Danger to the community” is not an aggravating factor justifying an upward departure in risk level inasmuch as sex offenders at all three risk levels are, at varying degrees, deemed dangers to the community. Lower court also erred in considering D’s use of drugs and alcohol because those issues were already taken into consideration when D was assessed maximum points for that history.
· People v Gumpton (KA 10-00217) – Although in support of motion to withdraw plea counsel attacked the strength of prosecution’s proof and contended that the case was “eminently triable,” D wasn’t entitled to withdraw plea merely because she discovered that her calculus misapprehended the quality of the State’s case. Claim of innocence was also belied by plea colloquy. Claim that counsel was ineffective also contradicted by plea colloquy.
· People v Hill, Jr., (KA 10-01905) – 10 year look-back period for purposes of determining if an offense is an “exclusion offense” that prohibits resentencing under CPL 440.46 is calculated from the date D moved for resentencing, not from the date of the instant offense.
· People v Hurlbert (KA 06-01618) – Trial court did not err in permitting counsel to represent D after it found out that counsel previously represented prosecution witness who waived attorney-client privilege for purposes of cross-examination. Although court did not ask D if he understood risk involved in potential conflict, failure to ask was not error because D did not establish that potential conflict bore “a substantial relation to the conduct of the defense.” Also, aggregate term of 105 years imprisonment was not illegal. Where crimes are committed through separate and distinct acts, even though part of a single transaction, consecutive sentences are possible even if statutory elements of offenses overlap.
· People v Johnson (KA 09-01375) – assault-2nd is a lesser included offense of assault-1st and should have been considered only in the alternative as an inclusory concurrent count of assault-1st.
· People v Sawyer-Plato (KA 10-01674) – D was initially arraigned on 2 counts of misdemeanor DWI. Driver’s abstract showed that D had previously been convicted of DWI in 2004. Prosecution sought and obtained felony DWI indictment; D was arraigned and People announced ready for trial. Cert. of conviction was then produced and showed that D was not convicted of DWI but DWAI. Prosecution then amended indictment to misdemeanor DWI. D then argued that prosecution didn’t announce ready for trial w/in 90 days. Court held that specific contingencies that trigger CPL 30.30 (5) were not present here. Thus CPL 30.30 (1) applied and under that section the readiness time requirement is based on the most serious offense charged. That the driver’s abstract was erroneous did not negate the fact that felony DWI was the most serious charge.
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