Criminal Decisions
· People v Adair (KA 07-01482) – There is legally sufficient evidence that D attempted to gain possession of an officer's firearm and, considering the circumstances of this attempt, there is a valid line of reasoning and permissible inferences for the jury to find that D's intent was to use the weapon unlawfully against the police. The court's denial of D's two requests for adjournment during trial did not deprive him of a fair trial, as D failed to make the requisite showing of prejudice. Defense counsel offered no reason for his first request. D's second request was to locate a witness, however there is no indication that her testimony would have been favorable to D. Defense counsel was not ineffective. Despite being assigned 17 days prior to trial, it is apparent from his overall performance that he adequately prepared for trial.
· People v Agostini (KA 11-00007) – The prosecution’s cross-examination of D’s wife concerning her past employment as an exotic dancer was improper, as this does not constitute a prior bad act and it was not relevant to the case. However, it did not cause substantial prejudice to D, as it was limited and not pervasive in nature. D’s further contentions of prosecutorial misconduct were unpreserved and without merit, as a curative instruction was given and defense counsel did not object to the instruction or move for a mistrial. It was not an abuse of discretion to limit D’s cross examination of a police detective regarding the methods used to take witness statements, as that detective only interviewed one witness and D was able to cross examine all of the witnesses.
· People v Attea (KA 09-00436) – D’s guilty plea was not jurisdictionally defective. The court properly exercised its discretion pursuant to CPL 10.20 (3) to sit as a local court in order to arraign D on his felony complaint. A superior court is mandated to sit as a local court to arraign D on a felony complaint if D is brought before it following his arrest. However, the court’s jurisdiction is not determined by whether D was actually “arrested” on the felony complaint.
The dissent argued that the instances in which a superior court may sit as a local court for purposes of arraignment are defined by statute and limited in nature. Courts do not have unlimited discretion to decide what circumstances they may sit as a local criminal court. CPL 180.20 (2) states that D must have been arrested by a police officer, and here it is undisputed that D was not arrested. Thus the statute is not applicable and the plea was jurisdictionally defective.
· People v Barrett (KA 10-00698) – D’s PSR suggested that he may not have been competent at the time of the plea. However, D’s contention that the plea was not voluntary was not preserved for the 4AD’s review, as D did not make any statements during the plea allocution that were inconsistent with his guilt or otherwise called the voluntariness of his plea into question. It was not an abuse of discretion for the court to fail sua sponte to order a competency exam based on information in PSR.
· People v Bedell (KA 08-00186) – It was not an abuse of discretion to deny D’s request that the County Court Judge recuse himself in a perjury trial, where the judge had presided over the proceedings in which D gave the testimony underlying the perjury charges. The prior proceedings were a matter of record and there was no need to call the judge as a witness. The conviction is supported by legally sufficient evidence, as the jury could rationally find that D's contradictory statements were material to the proceedings. The court's warnings during the proceedings did not coerce D to perjure himself.
· People v Bernardo (KA 10-02313) – 4AD reverses a dismissal of the indictment. The Supreme Court erred in determining it did not have geographical jurisdiction. Pursuant to CPL 20.20 (1) (a), D may be prosecuted in NY when an element of the offense occurred in NY. Endangering the welfare of a child is a continuing offense, in which a series of acts is combined to make out the offense. As the abuse began in NY, an element of the crime occurred in the state and the court had geographical jurisdiction. The indictment is also not timebarred. There is a two year statute of limitations on endangering a welfare of a child, which does not commence until after the last act of abuse occurs.
· People v Bogar (KA 09-02049) – It was not error for the court to allow a police detective to testify that a video recorded by D depicted illegal conduct. Although a witness should not be permitted to testify about his or her opinion regarding an issue that is within the jury's exclusive province, D opened the door to the testimony. The court also provided the jury with appropriate limiting instructions, minimizing potential prejudice. Testimony of the victims was not improperly bolstered with testimony of the victims' out of court statements, as they fell within recognized exceptions to the rule against hearsay. It was not an abuse of discretion for the court to deny D’s motion to sever the counts of the indictment. Despite D’s age of 75 years old, it was not unduly harsh and severe to sentence him to 25 years in prison, given the depravity of D’s conduct and his refusal to take responsibility.
· People v Aquino (KA 10-00325) – Country court erred by delegating its responsibility to conduct a restitution hearing to a court attorney. 4AD notes that while as a general matter a D may not appeal as of right from a restitution order, here, the court bifurcated the sentencing proceeding by severing the restitution issue for a separate hearing, thereby obviating the need for D to seek leave to appeal from the restitution order. Preservation was not required because D was deprived of his right to be sentenced as provided by law.
· People v Burton (KA 10-00758) – D was indicted on 2 counts of first degree sexual abuse and 1 count of second degree attempted assault, arising from an incident with one complainant, and 3 counts of second degree assault, inter alia, arising from an incident with a second complainant. Lower court did not err by rejecting D’s motion to sever the counts relating to each incident. Counts were properly joined pursuant to CPL 200.20 (2) (b) on the ground that D’s modus operandi with respect to each sexual assault demonstrated a distinctive pattern. Also, certain offenses were the same or similar in law (CPL 200.20 [2] [c]) and D failed to show good cause for severance.
· People v Hobby (KA 08-00656) – The possibility that a possible federal prosecution might have affected D’s decision to plead guilty was insufficient to establish that D’s plea was coerced.
· People v Johnson (KA 06-03762) – Police saw D approach parked car and try the driver’s side door handle, while glancing left and right. D then walked to passenger side door, again glanced left and right. D then tried the driver’s side door again, again glancing left and right. D then walked back to passenger’s side, reached in car, put his hands in his pockets and walked away. Police approached D and asked if he owned the car he just reached in. D answered he did, but the registration came back to someone else. D could not name owner. 4AD finds police had a founded suspicion that criminal activity was afoot and thus properly approached D. After D answered falsely police had probable cause to arrest and search.
· People v Jason L. (KA 10-01492) – CPL 450.30 (2) does not authorize the People to appeal from a lower court’s youthful offender finding. That section only permits the People to appeal from an illegal sentence.
· People v Lamar (KA 10-00699) – Indictment alleged that D and co-D “each being aided by the other” acted in concert to rob the victim. Jury charge, however, provided that People were required to prove that D robbed victim and was aided by another. The charge thus cast the D as the principal and the co-D as the accomplice, but the court refused to charge the jury on accessorial liability. 4AD found that the evidence failed to show that the D acted as the principal. There were equally strong inferences that D was the principal or accomplice. The jury improperly gave more weight to the evidence that showed D was a principal.
· People v McGinnis (KA 08-00858) – Officer was justified in asking for D’s consent to search his vehicle because after he pulled over D’s car officer had a founded suspicion that criminal activity was afoot. Officer was aware of D’s criminal background, saw D leave at high rate of speed from known drug location, and D lied about location from which he was driving.
· People v Nappi (KA 10-00826) – Lower court properly seized gun and ammo seized by D’s parole officer from D’s residence without a warrant. Parole officer can conduct a warrantless search where the search is rationally and reasonably related to the performance of the parole officer’s duty. Here, the search was related to the officer’s duty of preventing parole violations for the protection of the public from the commission of further crimes. Officer had a rationale and reasonable basis to believe a gun would be in D’s residence based on information provided by D’s wife. That police assisted after the gun was found by the parole officer did not render the initial search a police operation.
· People v Ott (KA 06-01424) – D contended that County Court Judge did not have subject matter jurisdiction to preside over suppression hearing because case was pending in Supreme Court. 4AD notes that although a claim raising the lack of subject matter jurisdiction may be raised for the first time on appeal, here, because both courts had the power to hear the case, D’s claim was the equivalent of an improper venue claim, which is not jurisdictional (and waived if not timely raised). People v Adams (74 AD3d 1897) was inapposite because there the case was transferred to a different judge in violation of 22 NYCRR 200.14, which requires transfer before entry of a plea.
· People v Robbins (KA 09-00980) – D’s waiver of her right to appeal did not encompass the challenge to the severity of her sentence because D entered the waiver before being advised of the maximum sentence she could receive. But 4AD found period of post-release supervision not unduly harsh or severe.
· People v Spencer (KA 10-00727) – Lower court properly granted People’s request to delete language from the indictment identifying a drug buyer as an undercover police officer. The amendment did not change the theory of the prosecution or otherwise tend to prejudice D on the merits.
· People v Weston (KA 08-00830) – D contended photo array was unduly suggestive. 4AD rejected argument and first noted that subjects in photo array were sufficiently similar in appearance. 4AD then explained that during interview with police, an accomplice said he knew the perpetrator as “Ratchet.” Police then presented a photo array and asked accomplice to identify “Ratchet” if he could do so. Police did not say whether “Ratchet” was actually depicted in the array nor did they tell accomplice that he had to make an identification.
· People v Worth (KA 09-01449) – 4AD agreed with D that his indeterminate 2 to 7 year sentence was illegal because the lower court failed to sentence him as a second felony offender. 4AD noted that there was nothing in the record, however, that indicated that D was promised a 2 to 7 year sentence. 4AD thus rejected D’s argument that the plea must be vacated based on the trial court’s inability to comply with the plea agreement. Instead, if a specific sentence was promised, the sentencing court has the discretion to impose that sentence or to afford D an opportunity to withdraw his plea.
· People v Davis (KA 09-01861) – In light of the brutal nature of D’s crime the lower court did not abuse its discretion by not sentencing D as a youthful offender. D repeatedly punched a 64-year old man who was taking his morning walk and broke his jaw.
· People v Hill (KA 09-00308) – D requested to be excused from the last part of his trial. Although D did not specifically waive his right to testify, D’s responses to the court’s questions demonstrated that he knowingly, voluntarily, and intelligently waived his right to be present for the remainder of the trial. Defense counsel also indicated she discussed D’s request with him and he indicated he did not wish to be present. 4AD determined that D was well aware of the likely consequence that he would not be able to testify based on his absence from the proceeding, and he thus waived that right.
· People v Kalinowski (KA 09-01627) – County Court failed to comply with CPL 330.10 in handling the first note from the jury. At start of jury deliberations, court and parties agreed that if the jury requested evidence, the court would provide the evidence to the jury without reassembling the parties in the courtroom. The first jury note concerned clarification regarding the path of a bullet and asked to see the autopsy report. The court did not read the note into the record, nor did it respond to the note on the record. Nor was there any indication in the record that the D or her attorney were apprised of the note or its content. The stipulation did not make the court’s actions proper because counsel should have been heard regarding a proper response regarding the requested clarification. Preservation was not required because this was a mode of proceeding error.
· People v Mox (KA 09-01107) – 4AD reversed guilty plea because D’s recitation of the facts underlying the crime cast significant doubt on his guilt. Preservation was not required. Lower court had a duty to inquire to determine whether D’s guilty plea was knowing and voluntary. Here, D’s allocution did not remove doubt about the intent element of first degree manslaughter. D’s allocution suggested that his schizoaffective disorder caused him to be in a psychotic state at the time of the crime, and this essentially negated the intent element. (Smith, J. dissenting).
· People v Tooley (KA 10-00357) – County court properly determined that upward departure from D’s presumptive SORA risk level was warranted. D admitted during pre-sentence interview that he previously sexually abused two children, who were not victims of this underlying crime. This aggravating factor was not properly taken into consideration by the risk assessment guidelines. The upward departure was thus supported by clear and convincing evidence.
Family Law Decisions
· Matter of Nicholas B. (CAF 10-00705) (TPR) – Though notice of appeal was filed prematurely, court reviewed merits of case in the interest of justice and in the interest of judicial economy. Mother’s failure to satisfy requirements for mental health services and keeping a clean home demonstrated her unwillingness to correct conditions that led to her children to be placed with DSS. Termination of parental rights was in the children’s best interest because at the time of the dispositional hearing the children had been in foster care for six years. And, even after her parental rights were terminated, mom made little progress in complying with mental health services; her little progress did not warrant additional delay in placing children in stable home.
· Matter of Canady v Binette (CAF 09-00644) (Relocation) – Father argued that Mother’s relocation petition should have been denied because he did not have the financial means to travel to Louisiana Louisiana
· Matter of Brothers v Champman (CAF 10-00294) (Custody) – 4AD upheld order granting the parties joint custody of their children and primary physical custody to the Father. The Father demonstrated a change in circumstances that reflected a real need for change to ensure the best interests of the child (applying factors set forth in Maher v Maher, 1 AD3d 987). Mother repeatedly changed residence and currently resided with a paramour with a significant history of domestic violence and irrational behavior. Although Mother was cognizant of the need to improve her parenting skills, her transient lifestyle resulted in the child attending three different schools within only a few years. Although Father needed to take a greater role in the child’s education, he had taken a number of steps in that direction. Mother was unemployed and her income consisted of public assistance. Father provided a safe home environment; while Mother was a caring parent, she chose to live with potentially dangerous boyfriend.
· Matter of Thor C. (CAF 10-00916) (Article 10) – The Family Court violated the Mother’s right to due process by refusing to allow her to testifying during the fact-finding phase of the Article 10 proceeding. A prior order found that the Mother neglected her son’s three siblings by failing to take appropriate action after learning that her children were sexually abused by their father. Because the son was not a part of the prior proceeding, the Mother should have been allowed to testify in response to new evidence offered in the instant proceeding.
· Matter of Nicholas J.R. (CAF 10-00914) (Article 10) – Noting the undemanding nature of the corroboration requirement for out-of-court statements regarding sexual abuse, 4AD held that child’s statements regarding sexual abuse by his Mother were sufficiently corroborated by the testimony of an evaluating psychologist who testified that statements made to the psychologist and a caseworker for CPS during videotaped interview were credible. The Court further explained that while repetition of a child’s accusation does not corroborate the child’s prior account, “the consistency of the child[’s] out-of-court statements describing [the mother’s] sexual conduct enhances the reliability of those out-of-court statements.” 4AD also concluded that the Family Court properly excluded evidence of the father’s alleged corporal punishment of the child because the evidence was not relevant to whether the mother sexually abused her son.
· Matter of Vieira v Huff (CAF 10-00275) (Custody) – 4AD upheld Family Court’s custody determination but modified the order because the Family Court lacked the authority to condition any future application by the Mother for modification of her visitation on her participation in mental health counseling.
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