Criminal Decisions (selected)
People v Daggett (KA 07-01780) – 4AD modifies the sentences for DWI and DWAI in the interest of justice. While the lower court did not abuse its discretion in sentencing D as a persistent felony offender, the imposition of the maximum sentence is unduly harsh and severe. The instant offenses did not result in physical injury or property damage, and the evidence established that D’s criminal history is the product of his alcoholism and mental health problems. The sentence was reduced from 20 to life to 15 to life.
A previous DWI conviction may properly serve as a predicate both for the conviction of felony DWI and for the purpose of determining eligibility for persistent felony offender treatment. It was not an abuse of discretion for the lower court to consider D’s prior youthful offender adjudication as relevant to his history and character under the second prong of 70.10.
The lower court properly concluded that the dismissal of the DWAI count in the first trial was a nullity under People v Dexter, and thus permitted the People to prosecute D on that count in the retrial.
People v Garrett (KA 05-01624) – The lower court erred in admitting evidence of uncharged crimes D committed in Cleveland Cleveland
The court did not err by allowing the People to introduce evidence of prior consistent statements made by one of D’s accomplices who testified against him. On cross-examination, defense counsel spent considerable time eliciting testimony regarding the fact that the accomplice was testifying pursuant to a plea agreement, presumably suggesting that this provided him with a motive to lie. The People were then free to elicit testimony concerning his prior statements, in order to refute D’s suggestion.
People v Jamieson (KA 09-02235) – The evidence of unlawful entry and intent to commit a crime was sufficient to support a burglary conviction. The evidence established that D gained entry to the victim’s home by means of deception, trickery, or misinformation. D was wearing a hard hat and vest, and informed the victim that he was from the cable company and he was there to see if her setup was okay. D’s intent to commit a crime can be inferred from the circumstances of his entry, his unexplained or unauthorized presence on the premises, and his actions and assertions when confronted. Here, D posed as a cable company employee to gain entry to the home and then engaged in a physical altercation with the victim’s brother when confronted about the property taken from the home.
People v Johnson (KA 10-01095) - The verdict sheet contained an impermissible annotation. The court included the language, “an armed felony,” in describing robbery in the first degree, the sole count of the indictment, and the record failed to demonstrate that the defense counsel consented to the verdict sheet. In People v Damiano, the Court of Appeals ruled that when the court determines that listing statutory elements as labels or shorthand on the verdict sheet will aid the jury in its deliberations, the court must obtain defense counsel’s consent to the annotation prior to submitting it to the jury. Lack of objection by defense counsel cannot be transmuted into consent and lack of consent cannot be deemed harmless error. While CPL 310.20 (2) superseded Damiano in part, that statute only applies when there are two or more counts submitted to the jury and the purpose of the annotation is to distinguish between the counts. Here, the indictment only contained one count, and the statute is inapplicable. 4AD reserves decision and remits the matter to the Supreme Court to determine whether defense counsel consented to the annotated verdict sheet.
People v Montanez (KA 10-01395) - 4AD affirms the determination that D is a Level 3 sex offender. The assessment of 15 points under the risk factor for drug or alcohol abuse is supported by clear and convincing evidence. The People presented a risk assessment instrument containing D’s admissions that he began using marihuana at age 9, alcohol at age 12, cocaine at age 25 and crack cocaine in his 30s. Though D had stopped using all substances for a period of time, he had a relapse 4 years prior to the instant offense. In addition, D admitted he was intoxicated at the time of the rape, which would, standing alone, warrant the assessment of 15 points.
The court also did not err in assessing 30 points under the risk factor for the number and nature of prior crimes, including a prior violent felony. That D’s two violent felonies were from 1981 does not render the points “constitutionally unfair” based on lapse of time. This risk factor does not take into account the timing of any particular prior felony. The recency of a prior felony is taken account in risk factor 10, and D was not assessed any points under that risk factor.
People v Osborne (KA 09-01372) – 4AD rejected D’s contention that the court should have granted his motion to sever the trial from his codefendant based on the fact that there was DNA and fingerprint evidence that implicated D, but not his co-defendant, and the co-defendant’s attorney emphasized this to the jury. The co-defendant’s attorney did not act as a “second prosecutor.” He simply argued to the jury that there was no DNA or fingerprint evidence implicating his client. The fact that he stressed the relative weakness of the case against his client does not present an irreconcilable conflict warranting severance. He did not take an aggressive adversarial stance against D or elicit damaging evidence that had not been brought out by the prosecution.
D was not denied his right to counsel when the police questioned him. D was represented by counsel on an unrelated matter, but he was not in custody for that matter at the time of the police questioning in this case. D did not have a derivative right to counsel arising from that prior representation for which he was not in custody.
People v Sanders (KA 10-00362) – (Lindley, J.) – In 2003, D waived indictment and pleaded guilty to an SCI that charged him with second degree assault under a different subdivision than was charged in the felony complaint. D was later convicted of another crime and the prosecution sought persistent felony offender status. D successfully argued that the 2003 charge was jurisdictionally defective and a nullity because his right to be indicted by a grand jury had been violated (because he pleaded guilty to a crime that was not listed in the felony complaint nor a lesser included offense of such a crime). The prosecution thereafter indicted D on a first degree assault charge, stemming from the 2003 incident to which D had pleaded guilty.
4AD, in an opinion by Lindley, J., affirms the lower court’s dismissal of that charge because it is barred by the double jeopardy clause. The issue was “whether the 2003 conviction bars further prosecution under principles of double jeopardy, even though it was based on a jurisdictionally defective SCI.” While the double jeopardy clauses of the U.S. Constitution and the New York Constitution do not bar a second prosecution when the prior judgment has been vacated on D’s motion or appeal because of an error in the proceedings, here, the 2003 conviction was never vacated. Court explained it could not see how D could have two convictions for the same offense on his record without implicating the double jeopardy clauses. 4AD noted its decision was consistent with Matter of Campbell
People v Wolf (KA 10-02152) – D’s contention that the court abused its discretion in denying her motion to withdraw her guilty plea was knowing, voluntary, and intelligent survived her waiver of appeal. But, a court’s denial of permission to withdraw a plea does not constitute an abuse of discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea. Here, D did not submit her own affidavit, or any medical evidence, to substantiate her claim that her mental illness precluded her from entering a voluntary plea. D’s claim was also belied by the record, which 4AD stated showed D was lucid, responded to questions in a clear manner, repeatedly stated she understood the proceedings, and declined opportunities to speak with her attorney.
Family Law Decisions (selected)
Matter of Beck v Butler (CAF 10-02459) – 4AD upheld the lower court’s finding that Respondent committed the family offense of harassment in the second degree against Petitioner. R verbally abused and threatened P numerous times throughout a single day, and left numerous threatening messages on P’s mobile phone. Threats were made credible by P’s prior experience with R. While obscenities may not constitute criminal conduct, 4AD found that the verbal acts made in the context described by P were not constitutionally protected.
Matter of Gibson v Jones (CAF 10-02365) – Respondent appealed from Support Magistrate’s order finding he willfully violated a Family Court order and sentencing to six-months imprisonment. 4AD reverses. A person facing possible imprisonment because of a willful violation of a court order has the right to the assistance of counsel. That person may proceed pro so, but only after a knowing, voluntary, and intelligent waiver and a showing that the person is aware of the dangers and pitfalls of proceeding without counsel. Here, the lower court failed to conduct a “searching inquiry” to ensure that Respondent’s wavier was valid.
Matter of Jacob E. (CAF 10-00915) – In this termination of parental rights case, 4AD finds that Family Court properly granted DSS’s motion pursuant to § 1039-b of the Family Court Act, relieving DSS of its obligation to make reasonable efforts to reunite the child with the mother. DSS established, by clear and convincing evidence, that mom’s parental rights had been terminated with respect to the child’s half-sibling, and that mom repeatedly failed to comply with alcohol, substance abuse and mental health treatment programs. Mom failed to show that requiring DSS to make reasonable efforts would be in the child’s best interests.
Matter of Grybosky v Riordan (CAF 09-01654) – 4AD affirms custody order. Dad met his burden of establishing a change of circumstances. Dad’s petition was prompted by an incident in which Mom left child in a casino hotel room for 3 hours while she gambled. As a result of the incident, child missed the first day of first grade, Mom was arrested for endangering the welfare of a child, and CPS issued an indicated report. Additionally, after that incident, Mom left child in the care of a male friend’s daughters, while she and the friend went out for drinks. Child also exhibited poor hygiene and the court noted that, while the child was in Mom’s custody, her teeth decayed to the point of requiring 11 extractions and the placement of steel crowns.
Matter of Damian G. (CAF 10-00960 & CAF 10-01045) – 4AD affirms neglect adjudications against Mom and Dad. Mom attempted to drive a car with her children while she was intoxicated. Dad failed to take anti-seizure medication so that he could drink alcohol, knowing that he is likely to become violent if he has a seizure. He did have a seizure and an emergency call was made on his behalf. He had a second seizure when police arrived and he did become violent. 4AD found he failed to “exercise a minimum degree of care” for his children and placed them in imminent danger, as they were on their way home with their mother at the time of Dad’s second seizure.
(Smith, J., dissenting) – Judge Smith contends that the children did not suffer actual harm and petitioner failed to establish that the parents placed the children in “imminent danger of physical, emotional or mental impairment.” With respect to Dad, his failure to take the anti-seizure medication did not create a risk that was “sufficiently near or impending” to support a finding of neglect. With respect to Mom, the courts' determination that she was intoxicated was not proven by a preponderance of the evidence. Even assuming that the State Trooper’s testimony that he smelled a strong odor of alcohol was credited, that did not establish that Mom was intoxicated, or that her actions placed her children in imminent danger. Other witnesses testified that Mom was not stumbling, swaying or slurring her speech.
Matter of Tiffany M. and Tonika M. (CAF 10-02449) – In this termination of parental rights case, the expert testimony of petitioner’s psychologist establish by clear and convincing evidence that, because of the Mom’s mental illness and mental retardation, she was unable to presently and for the foreseeable future provide proper and adequate car for her children. Though the petition did not allege mental illness as a ground for termination of parental rights, Mom did not object to that testimony. And, although Family Court did not specifically refer to Mom’s mental retardation in its decision, it determined that Mom lacked the mental capacity to care for her children.
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