Criminal Cases
· People v Calkins (KA 10-00921) – 4AD reverses D’s conviction for third degree criminal mischief because of prosecutor’s failure to instruct the Grand Jury on the defense of justification (physical force in defense of persons) with respect to that crime. The prosecutor charged the defense with respect to assault and 4AD notes that the Grand Jury voted not to indict on that charge. The error was compounded by the prosecutor’s failure to charge justification based on the use of physical force in defense of premises. Also, the error was further compounded because the prosecutor did not inform the Grand Jury of D’s request to call a witness to the incident. While a grand jury need not be charged with the same degree of precision as a petit jury, here, D was exposed to the possibility of prejudice due to the prosecutor’s failure to charge justification.
· People v Collins (KA 10-00025) – D was not denied his due process or equal protection rights by prosecutor’s decision to try him for predatory sexual assault against a child instead of first degree rape. That these crimes may be identical in some cases does not amount to a due process or equal protection violation, and this was not an “exceptional case” in which the People had to exercise their broad discretion to charge the lesser crime. Mandatory surcharge and crime victim assistance fee should have been based on the statute in effect at the time of the crimes.
· People v Hershey (KA 11-00262) – Grandmother was convicted of recklessly causing the death of her grandson. 4AD finds her 5 to 15 year prison sentence (the max permitted) harsh and excessive, noting that D was 70-years old, had no prior criminal record, and her crime was not intentional. Also, victim’s parents supported D throughout the trial and pleaded with the court not to incarcerate her (stating that incarceration of D would only add to their grief). 4AD states that it is cognizant an innocent life has been lost, but a 2 to 6 year sentence is more appropriate.
· People v Mays (KA 07-02669) – D’s contention that lower court erred by permitting interaction between prosecutor and jurors during deliberations while a video was replayed was not preserved for review. 4AD rejected D’s argument that preservation was not required because the error constituted a mode of proceedings error pursuant to People v O’Rama (78 NY2d 270). Instead, the prosecutor’s communication with the jury was ministerial and was “wholly unrelated to the substantive legal or factual issues of the trial.”
(Fahey & Martoche, JJ, dissenting) – The dissent argues that the lower court improperly delegated control of a critical portion of the trial to the prosecution by allowing the prosecutor to respond to juror questions and guide the jurors through the playback of the video recording. Dissent notes that the jury note requesting playback of the video was not part of the record and there is no record of a discussion between the prosecutor and defense counsel regarding a response to the note. Disagreeing with the majority, the dissent states that preservation is not required because the interaction between the prosecutor and the jurors “goes to the general and over-all procedure of the trial.” The prosecutor was permitted to discuss exhibits with the jury, during deliberations and on the record. The prosecutor’s communication was not ministerial in nature and therefore violative of CPL 310.30. A violation of that section does not require preservation. The dissent also distinguished the Third Department’s decision in People v Davis (260 AD2d 726), arguing that in that case the prosecutor did not communicate with the jury, but merely showed the foreperson how to operate the vcr. The dissent further points out that this error is particularly egregious because the court delegated its duty to the prosecutor (instead of court personnel, for example).
· People v Warren (KA 08-01036) – D was tried before a jury along with a co-defendant, and another co-defendant was simultaneously tried by a bench trial. After the prosecution rested, the bench trial co-defendant testified and inculpated D while exculpating himself. The jury acquitted the co-defendant and the judge acquitted the bench trial co-defendant. 4AD finds that the lower court erred by permitting this arrangement. D moved for severance before trial and argued that the co-defendant should not be permitted to testify before the jury. Because the bench trial co-defendant’s defense was in irreconcilable conflict with D’s defense D was prejudiced by this arrangement due to the significant danger that this conflict alone would lead the jury to infer D’s guilt.
Family Law Cases
· Matter of Zachary T. (CAF 10-00514) – Father neglected the child by failing to protect him from being sexually abused by others, when the father was aware of the sexual activity and took no action to prevent it from continuing. Family court did not err in finding derivative neglect of the child based on the father's sexual abuse of his nephew. As they shared a house, the father was the functional equivalent of a parent in a familial or household setting, and his nephew was his legal responsibility within the meaning of the Family Court Act.
· Clime v Clime (CAF 10-01308) – 4AD upholds an order awarding primary physical custody to the father. Mother does not challenge that there was a change in circumstances, and the best interests determination is supported by a sound and substantial basis in the record. Both parents were equally fit and able to raise the child, and family court's determination was based on the fact that the father was better financially situated and had a larger safety net.
While the court proceeded without the originally assigned Attorney for the Child, the child's interests were fully protected by a substitution. The substitute reviewed the case file, interviewed the child, spoke to the original Attorney for the Child and actively participated in the hearing.
· Butler v Hess (CAF 11-00204) – 4AD reverses an order prohibiting mother from relocating with the child. Mother established by a preponderance of the evidence that the relocation would be in the child’s best interests, where she and her husband both lost their jobs, and her husband took a job in Pennsylvania out of financial necessity. Family court did not adequately consider the financial considerations and primarily based its decision on the conclusion that the relocation would qualitatively affect the child's relationship with the father. This was error, as the feasibility of preserving the relationship between parent and child does not take precedence over economic necessity. In fact, the Court of Appeals has found that economic necessity may present a particularly persuasive ground for permitting a proposed move.
In addition, the record established that the relocation would not have a substantial impact on the father's visitation schedule, as the mother and her husband testified that they would transport the child to the father every other weekend, and offered to pay for a hotel room for the father to exercise additional access.
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