· People v Anthony (KA 09-01205) – After police received a report that D was in possession of a handgun, an officer approached D in the parking lot of his employer. D denied he had a gun, and after a pat-down search, he consented to a search of his lunch-box and car. Police found a gun and asked D if he knew what had been found. D replied that the gun was his brother’s and D carried if for protection. 4AD holds that the statement was properly admitted. Both the elements of “custody” and “interrogation” must be present before a defendant must be read his Miranda rights. Although the officer’s question was accusatory rather than investigatory, D was not in custody when the officer asked the question. Noting that the standard for determining whether someone is in custody is whether a person innocent of wrong-doing would feel that she is free to leave, 4AD explained that D voluntarily consented to the search and was unrestrained while the officer conducted the search.
· People v Ayers (KA 09-00087) – Police received burglary report from homeowner who said that his back door was ajar, a snow print was in his house, and his wife’s car had been opened. There was a footprint trail in the snow that one officer began following. Two other patrol cars were canvassing the neighborhood. About an hour after the burglary, a patrol car saw D run across the street and up the driveway of a house near scene. Officer told D to stop and arrested him. 4AD holds that officer had at most a reasonable suspicion, which did not justify an arrest. Because the incorrect suppression decision may have affected D’s decision to plead guilty, plea was vacated.
· People v Biro (KA 10-01390) – D was not denied effective assistance of counsel because of trial attorney’s alleged failure to adequately cross-examine police officer who administered the breathalyzer test. The attorney did not question the officer regarding the field and chemical sobriety test, but D did not point to any errors in the administration of those tests that counsel should have asked about. Trial counsel’s strategy was to challenge the allegation that D actually drove the vehicle, and counsel asked questions about that element. Counsel was also not ineffective for failing to ask for a pre-trial hearing pursuant to People v Ingle. The motion would not have been successful because the officer’s observed a traffic hazard and had the authority to approach the vehicle and ask for identification. When they smelled the odor of alcohol and saw an open container in the vehicle, among other things, police had probable cause to arrest.
· People v Boykins (KA 07-02086) – Although the ninth count in the indictment referred to one act of second degree attempted murder, the prosecution presented evidence of two separate acts that could constitute second degree attempted murder. 4AD reversed the conviction on that count because the jury may have convicted D on the unindicted act of attempted murder. D did not preserve this issue, but preservation was not required because the right of a defendant to be convicted of only those charges for which he was indicted is fundamental and nonwaivable.
· People v Carrasquillo (KA 10-00814) – D moved in limine seeking to introduce evidence to explain the presence of DNA found on victim. The lower court denied the motion explaining that it could not rule on the issue until a question was asked and an objection lodged. 4AD explains that lower court implicitly stated that it would thus reconsider the issue and the D waived the issue by not raising it again at the appropriate time specified by the court. In any event, 4AD finds that the evidence was irrelevant. 4AD also exercised its interest of justice jurisdiction to modify the order of protection, which exceeded the maximum of eight years after the expiration of the maximum sentence imposed.
· People v Gandy (KA 09-02631) – 4AD rejects D’s argument that his motion to suppress the evidence should have been granted. D was a passenger in a car that was parked near a house that had been the subject of complaints regarding drug activity. This gave police an objective credible reason to approach the car. Police pulled up alongside the vehicle, which was still capable of moving forward and backward, and asked the occupants “what’s up?” One of the officer’s then approached the parked car and observed a gun between D’s legs. 4AD held that the gun was in plain view and the lower court’s credibility determination that the officer was outside the car when he saw the gun was entitled to great weight.
· People v Goodson (KA 07-02376) – 4AD rejects D’s contention that police did not have reasonable suspicion to require him to exit a vehicle or to frisk him. D was a passenger in a car that was pulled over for traffic infractions. An officer may exercise his discretion to require the driver or passenger in a pulled over vehicle to exit the vehicle even though he lacks any particularized suspicion that the person possesses a weapon. An officer may frisk a passenger if he has reasonable suspicion that he has a weapon or fears for his safety. Here, officer saw D reach toward his waistband and quickly pull his hand away. The officer had also been informed that one of the other passengers was a suspect in a series of robberies, and also observed that passenger make furtive movements. Based on the totality of the circumstances, the officer had a reasonable suspicion to conduct a frisk for weapons.
· People v Lopez (KA 09-02349) – D argued that the lower court erred in determining that the victim had an independent basis for his identification. 4AD explains that factors to consider in determining whether there is an independent basis for a witness’s identification despite the use of improper identification procedures include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Here, the victim viewed D face-to-face for 30 to 45 seconds in a well-lit area. And, the victim’s description was sufficiently specific to establish that he had a clear view of D at the time of the crime.
· People v McClary (KA 10-00700) – 4AD reverses on two grounds. First, lower court improperly removed a sworn juror who was not shown to be grossly unqualified to serve. A prosecution witness stated he had met the juror on two occasions, at a party and when the juror did some work at the witness’s apartment. Juror could not remember meeting the witness. Over D’s objection, the court dismissed the juror. 4AD notes that the standard for dismissing a juror over D’s objection is satisfied “only when it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict.” Here that standard was not met. Also, the error was not subject to harmless error analysis. Second, reversal was necessary due to numerous instances of prosecutorial misconduct: (1) prosecutor improperly elicited testimony from detectives who vouched for the credibility of a confidential informant; (2) prosecutor elicited, during his case-in-chief, testimony regarding D’s post-arrest silence, and mentioned same during summation; (3) prosecutor forced D, during cross-examination, to characterize the prosecution witnesses as liars. 4AD reversed the second issue as a matter of discretion in the interest of justice.
· People v Wright (KA 09-00043) – D’s conviction for robbery in the second degree is dismissed, as it is an inclusory concurrent count of robbery in the first degree. Preservation is not required, and the count must be dismissed as a matter of law. A single instance of prosecutorial misconduct, where DA improperly referred to D’s parole status, did not deprive D of a fair trial.
· People v Towsley (KA 10-00187) - The evidence was legally sufficient to establish that the value of the damaged property exceeded $250, as an experienced contractor testified that the cost of the window he purchased to replace the destroyed window was between $250-$270, plus labor. D was not deprived of a fair trial when the trial court refused to allow his experts to testify by closed caption television. Televised testimony is only to be used in exceptional circumstances and requires a case specific finding of necessity. D did not provide any medical evidence about the condition of his experts that would establish necessity. The court did not abuse its discretion by denying a request for a continuance to locate another expert, as the court had already adjourned the trial for five months for D to find an expert witness. Therefore, D was not precluded from presenting witnesses in his defense. He was also not precluded from presenting a defense, as defense counsel used information from reports prepared by the experts in Texas
The DA laid a proper foundation for testimony regarding canine tracking, by establishing that the dog and his trainer had received proper training in flammable liquid detection and the dog had been proven to be reliable.
D was not subject to custodial interrogation. He was placed in a police car for safety purposes after he attempted to enter a burning building while intoxicated. The door was left open, D was not handcuffed, and the police and fire investigator asked merely investigative questions.
· People v Thomas (KA 08-00320) – D was not deprived of a fair trial when the trial court sustained the DA’s objection to defense counsel’s statement during his summation that a witness should have been called by the DA, and instructed the jury to disregard the statement. When D is not entitled to a missing witness charge, he may try to persuade the jury to draw inferences from the DA’s failure to call an available witness only when the witness has material, noncumulative information about the case. Here, the witness would have merely confirmed the victim’s story, and such testimony would have been cumulative of the victim’s testimony, so the DA was not required to call him. Further, D never made an offer of proof with respect to the prospective testimony, and thus there was no good faith basis to comment on the DA’s failure to call him.
· People v Rudduck (KA 10-00470) – D’s motion to redact erroneous information from his PSR was properly denied. D made no showing that the information was inaccurate. The PSR should include all information that would have a bearing on sentencing determination, even if it would not meet the technical rules for admissibility at trial. Here, the information regarded a complaint where D was accused, but never charged, of a crime. This is permissible in the PSR, as it was based on information gathered during an investigation and relevant to sentencing. While the probation officer should not gather information as to matters that have been terminated favorably to D, when no charges were ever filed, the matter was never terminated.
· People v Roman (KA 05-01321) – The jury verdict finding D guilty of 2 counts of rape in the first degree and acquitting D of 2 counts of rape in the first degree with respect to the same victim, was not repugnant. The jury charges, summations, and trial testimony informed the jury that the acts underlying the charges of which D was convicted of happened subsequent to the acts underlying the charges of which D was acquitted. The charges were adequately linked sequentially by the victim’s testimony.
The DA did not vouch for the credibility of his witnesses. When defense counsel attacks their credibility, the DA is entitled to respond by arguing that the witnesses had been credible. An argument that witnesses testified truthfully is not vouching for their credibility.
· People v Quinones (KA 09-00483) – The superior court information was not jurisdictionally defective for not specifying the “class D felony or higher level crime” that D committed or attempted to commit. The information charged D with identity theft in the first degree, in the language of the statute. A superior court information is subject to the same rules as an indictment and an indictment that states no more than the bare elements of the crime charged and parrots the Penal Law is legally sufficient, as D may request a bill of particulars.
· People v Perez (KA 09-01288) – D was incarcerated when he was convicted of promoting prison contraband in the first degree. After a disturbance in the prison yard, an officer asked D to face the wall and before frisking him, the officer asked D if he had anything on him. D answered yes. This statement was properly admitted. When the circumstances of the detention and interrogation of a prison inmate entail added constraint that would lead a prison inmate to reasonably believe that there has been a restriction on that person’s freedom over and above that of ordinary confinement in a correctional facility, Miranda warnings are necessary. Here, though D was restrained to a greater degree than other inmates, it was not established that D was restrained in a manner over and above that of ordinary confinement in a correctional facility. His detention was equivalent to a frisk for weapons. At a stop and frisk inquiry level, Miranda warnings need not be given prior to questioning. If a stop and frisk would not constitute custody in a nonprison setting, 4AD sees no need to give inmates greater protection in a prison setting.
Further, the question should not have been suppressed based on the public safety exception to Miranda. It was the officer’s practice to ask inmates whether they had anything on them before a pat and frisk so that he would not get hurt. Although his question to D was partially to obtain information about a possible violation of the inmate rules, the question was also reasonably prompted by a concern for the safety of the officer, and therefore not solely for the purpose of eliciting testimonial evidence.
A delay of 11.5 months did not deprive D of due process. There is no specific temporal period that is presumptively prejudicial, and the delay of 11.5 months by itself does not require dismissal. There is no contention that the delay was caused by any bad faith, but rather staffing problems in the DA’s office. As D was already incarcerated, there was no further curtailment of his freedom, and there is no evidence that the defense was impaired by delay.
D was properly sentenced as a second felony offender. The felony conviction for which he was incarcerated at the time of the incident qualified as the requisite predicate felony conviction.
Dissent:
The dissent stated that reversal is required, as the trial court should have suppressed D’s statement, and he cannot say with certainty that the erroneous suppression ruling played no part in D’s decision to plead guilty. The officer testified that D was not free to leave once he was escorted out of the yard and that he was subjected to greater restraints than the other inmates. Under those circumstances, D could have reasonably believed that his freedom was restricted over and above that of ordinary confinement. The officer should have given D Miranda warnings.
The dissent also found that public safety exception to Miranda should not be extended to the prison context under these facts. The altercation that gave rise to D's detention had fully dissipated. The officer admitted that his question to D included an attempted to obtain information about a possible violation of inmate rules. It was likely that the inquiry would elicit evidence of a crime and it did elicit an incriminatory response.
Family Law Decisions:
• Matter of Shawn A. (CAF 10-00959) – Mom failed to appear for dispositional hearing in this termination of parental rights case. Her attorney was present but declined to participate in her absence. Mom’s unexplained failure to appear therefore constituted a default and 4AD dismisses her appeal.
• Matter of Carey v Windover (CAF 10-00207) – In this custody case, 4AD first notes that mom failed to include in the record on appeal the prior custody order giving her primary physical custody and visitation to dad. Although such an omission would normally result in dismissal, 4AD explains that there is no dispute regarding the access awarded to the mother under the order and decides to reach the merits. 4AD finds that dad did meet his burden of showing extraordinary circumstances justifying the modification of the custody order. Dad showed that mom moved 4 times in the year prior to the filing of the petition and sometimes stayed in a residence for only 2 to 3 weeks. Court-appointed special advocate also testified that conditions in mom’s home were not suitable for children. Dad, on the other hand, had a stable residence with beds for the children and was fully employed.
• Matter of Bethany F. (CAF 10-00547) – In this Article 10 case, 4AD finds that the Family Court did not err by failing to hold a Frye hearing regarding the validity of the Sgroi method utilized in clinical intervention of child sexual abuse victims. Once the reliability of a scientific procedure has been established, a Frye inquiry need not be conducted each time such evidence is offered, and courts may take judicial notice of its reliability. 4AD explains that the Court of Appeals has cited Dr. Sgroi’s book and other New York courts have admitted testimony of experts utilizing the Sgroi method. The counselor who testified also stated that the method is used by “all” counselors in the field to validate allegations of sexual abuse. Thus, because the testimony here was not novel, a Frye hearing was not required.
• Matter of Howard v Howard (CAF 10-02092) – In this custody case, 4AD finds that the Family Court erred by dismissing mom’s pro se modification petition before receiving a report from the referee and allowing mom to object to it. The referee was only permitted to hear the matter and issue a report because the parties did not consent to the referee rendering a final determination. Furthermore, the referee’s failure to advise mom regarding her right to counsel pursuant to Family Court Act § 262 (a) (v) also mandates reversal. Such error requires reversal with regard to the merits of the underlying petition.
• Matter of Howden v Keeler (CAF 09-02206) – In this custody case, 4AD first notes that dad made a sufficient showing of a change in circumstances to require a hearing on whether the existing custody order should be modified. Mom withheld the child from dad and made several unfounded allegations of sexual abuse against the dad. 4AD further finds that modification of custody was in the best interests of the child. A concerted effort by a parent to interfere with the other parent’s contact with the child is so inimical to the best interests of the child to raise a strong probability that the interfering parent is unfit to act as a custodial parent. In addition to mom’s interference and unfounded allegations, she subjected the child to unnecessary medical examinations.
• Matter of Rhea L.W. (CAF 10-02220) – 4AD reverses the Family Court’s revocation of an order of conditional discharge. Family Court found that the respondent (a minor) willfully violated a condition directing her to enroll in a facility for troubled youth. The county attorney’s own evidence, however, established that the respondent was unable to enroll because her mother could not afford the fees. The county attorney failed to meet its burden that the respondent willfully violated the condition. The court should have dismissed the petition.
• Matter of La’Derrick J.W. (CAF 10-01325) – 4AD upheld a termination of parental rights on the basis of permanent neglect. DSS made diligent efforts to strengthen the relationship between the mom and her children, however, mom moved to Louisiana and failed to maintain contact. Freeing the children up for adoption was in their best interest, as they had been in the custody of the same foster mom for several years.
It was not a denial of due process to hold the dispositional hearing in the mother’s absence where she failed to appear based on the medical condition of another child, and the hearing had already been postponed for this reason. A parent’s right to be present for the dispositional hearing is not absolute, and in light of the time that the children had spent in foster care and the attorney’s vigorous representation of the mother’s interests, it was not an abuse of discretion to conduct the hearing without her.
• Thillman v Mayer (CAF- 10-00316) – The family court properly granted dad’s cross petition for primary physical custody. The mom previously had primary custody on an agreement of the parties. This proceeding was the initial court determination of custody and, while the informal arrangement of the parties is a factor to be considered, dad need not prove a substantial change in circumstances to get a modification. Family court’s determination that this was in the best interests of the child is entitled to great deference and has a sound and substantial basis in the record.
• Matter of Sean S. (CAF 10-01554) – Family court’s modification of a permanency goal for two brothers to adoption is vacated and 4AD approves the permanency goal of placement in another planned permanent living arrangement. Family court’s determination lacks a sound and substantial basis in the record, and appears to be based solely on the absence of the brothers and their foster parents from the hearing. This was not a rational basis for rejecting APPLA as a permanency goal, as there was sufficient information to determine the best interests of the children. The brothers were represented by their Attorney for the Children, the evidence was undisputed that they strongly opposed adoption, and both brothers were nearing the age of majority.
• Matter of Kevon S. (CAF 10-00757) – Dad’s parental rights were terminated on the grounds of abandonment, as dad failed to visit and communicate with the child for a period of 6 months before filing of the petition. 4AD agrees that the family court erred in its order when it applied a disjunctive reading of the statute, referring to the dad’s failure to visit with or communicate with the child. The error is harmless, however, as the petitioner met its burden under the statute.
• Matter of Ethan S. (CAF 10-00666) & Matter of Jason S. (CAF 10-00734) – Family Court’s determination that the adoption could proceed without the biological dad’s consent was proper. Dad forfeited his right to consent as he did not maintain substantial and continuous or repeated contact. He did not provide any financial support and failed to see or communicate with the child. Two letters and one phone call are too infrequent and insubstantial to meet his burden. His substance abuse treatment did not provide a substantial explanation for his failure, as he still had access to many modes of communication.
Dad’s petition to modify a former order of custody and visitation is dismissed in light of the court’s decision.
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