Stats & Case Summaries - Fourth Department Decisions Released on September 30, 2011

Criminal Decisions (selected)

People v Baker (KA 10-0196) – In this consolidated appeal, 4AD first found that police had a reasonable suspicion to pull over D’s car for a traffic infraction.  A computer check of the license plates showed that they were issued to another vehicle and reported stolen.  Officer checked the correct license plate number, but, even if he entered the wrong number accidently, a mistake of fact may be used to justify a stop.

4AD vacated the sentence imposed for D’s conviction of arson.  The lower court improperly considered evidence of an uncharged crime.  Although a court may consider uncharged crimes in sentencing a defendant, the court must be satisfied that the information it’s considering is reliable and accurate.  Here, there was no indication in the record that the court ascertained the reliability of the information, which D disputed.

People v Cameron (KA 10-00828) – In this consolidated appeal, 4AD modified the order of protection, as a matter of discretion in the interest of justice, by changing the expiration date so that it ran from the date of conviction rather than the date of sentencing.  4AD also reversed the lower court’s SORA determination because it made only general and conclusory findings of fact and conclusions of law, and 4AD was therefore unable to conduct a meaningful review.

People v Crane (KA 10-00179) – 4AD found verdict finding D guilty of falsifying business records in the first degree was not repugnant or inconsistent with the verdict finding D guilty of grand larceny in the third degree.  The lower court correctly denied D’s motion to suppress his statements.  Miranda warnings were not required because D was not in “custody.”  Although questioning was accusatory, it was not conducted in a police-dominated atmosphere.  D voluntarily spoke to plain-clothes detective in the parking lot of a store.  The detective told D he was not there to arrest him and D was never restrained during the interview.

People v Davis (KA 07-02656) – 4AD rejected D’s argument that the GJ proceedings were tainted, finding the joinder of unrelated rape charges proper as they were the same or similar at law. Any potential prejudice was mitigated by the trial court’s severance before trial. The People’s failure to instruct the GJ to only consider the incidents separately was not preserved for appellate review, as counsel did not make a sufficiently specific objection in her omnibus and failed to adequately challenge the defective instruction after she finally learned about it from the trial court.  Further, such defect did not impair the integrity of the grand jury process so as to require dismissal.

4AD then found the trial court properly quashed D’s subpoena for NY DNA database info of other possible suspects under the Executive Law, finding that D failed to set forth a factual predicate to support an exception to the prohibition.  Further, complainant’s 911 call played to the jury was admissible as an excited utterance.  Finally, 4AD found no confrontation violation in allowing police to testify that D changed his story when presented with information provided by his wife, and noted that counsel failed to preserve that issue for appeal by contemporaneous objection. 

People v Dombrowski (KA 10-00213) – D moved under CPL 440 to vacate his judgment of conviction of burglary.  D argued that trial counsel was ineffective because he failed to call witnesses whose testimony would have supported the defense theory that D did not enter the apartment unlawfully.  D submitted affidavits from these witnesses, who, the court noted, were present in the courthouse during D’s trial.  4AD could discern no tactical reason why trial counsel would not have called the witnesses and remanded the case for a hearing regarding counsel’s reasons for not calling the witnesses.

People v Frazier (KA 10-00535) – Lower court erred in denying D’s CPL 440 motion without holding a hearing.  D submitted an affidavit stating that counsel did not inform him of a favorable plea offer that he would have taken.  D also submitted an affidavit from the prosecutor that recounted the specific terms of the plea offer.  These submissions supported D’s contention that he was denied effective assistance of counsel.

People v Gilmer (KA 07-01622) – Lower court erred in summarily denying D’s request for a Wade hearing regarding a witness’s identification of D.  Lower court concluded D failed to comply with CPL 710.60 (1), which requires sworn allegations of fact supporting the grounds for a motion to dismiss.  Such sworn allegations, however, are not required when a motion seeks suppression of an identification because of an improper pretrial identification procedure.  D did not know the facts surrounding the pretrial photo array procedure and thus could not make sworn allegations of fact.  Error deemed harmless.

People v Glover (KA 08-01205) – Police were entitled to approach D to conduct a common-law inquiry because they had a founded suspicion that criminal activity was afoot.  Police were traveling in a marked police car and observed D whistle at a group of males standing in an area known for drug activity, and they then dispersed.  Police exited their vehicle and D refused to remove his hand from his pocket despite repeated commands to do so.  D’s conduct, and the fact that a shooting had recently occurred in the area, gave the police a reasonable suspicion that D posed a threat to their safety.  The frisk that yielded a handgun was constitutionally justified.

People v Houghtaling (KA 10-02041) – Court erred by conducting trial in D’s absence.  Even if D was advised and warned that trial would proceed without him, court failed to inquire into D’s absence and set forth on the record the facts and reasons it relied on to determine D’s absence was deliberate.

People v McGee (KA 09-01054) – There was sufficient evidence to support D’s conviction as an accessory to attempted murder and reckless endangerment, as accessorial liability requires only that D, acting with the requisite mental culpability, intentionally aid another in the conduct constituting the offense.  The evidence established that D shared his co-defendant’s intent to kill and intentionally aided him by driving the vehicle, positioning it to enable him to get a clear shot, and driving away quickly to evade police.  The evidence also established that the circumstances evinced a depraved indifference to human life, as D drove down a residential street, where a number of children were playing outside, with his codefendant shooting at and striking several houses and vehicles.  There was also sufficient evidence to establish the requisite “community of purpose” for accomplice liability to attach. 

People v Moran (KA 08-01253) - D failed to preserve his contention that his waiver of the right to a jury trial is invalid based on the fact that the record does not establish that he signed the written waiver in open court, as required by CPL 320.10 and the NY Constitution, and that the waiver was not voluntary.  Both of these contentions are without merit, as D repeatedly waived his right to a jury trial in open court and executed a written waiver prior to trial.  Although the transcript does not conclusively establish that D signed the written waiver in open court, the waiver form expressly states that the waiver was made in open court.  The record also contains an extensive colloquy concerning the waiver.

People v Myers (KA 10-01759) - 4AD upholds D’s classification as a Level 3 Sex Offender.  The lower court did not err in assessing 10 points under risk factor 13 based on his unsatisfactory conduct while confined.  Points are properly assessed under that risk factor when an offender receives dispositions for behavior such as attempting to contact the victim.  D admitted at the SORA hearing that he sent 2 letters to the police officer that arrested him, threatening to kill the officer and his family.  In addition, the case summary stated that D had 39 Tier II infractions and 10 serious Tier III infractions.

D was not denied a meaningful opportunity to present mitigating evidence at the SORA Hearing.  While the People did not provide timely notice of their intent to seek an assessment of points under that risk factor, the court granted defense a brief adjournment to review the documentary evidence.  Defense counsel then proceeded with the hearing without requesting a further adjournment or other corrective action, and thus D is deemed to have waived his contention.  In addition, there was no prejudice to D, as he was aware of the nature of the evidence sought to be admitted by the People.

People v Newman (KA 10-02037) - Lower court did not err in admitting a videotape into evidence where there were sufficient assurances of identity and unchanged condition of the evidence.  Any alleged gaps in the chain of custody went to the weight of the evidence, not its admissibility.

D’s conviction of promoting a sexual performance of a child was supported by legally sufficient evidence.  Despite D’s absence during the recording of the sexual act, the People established that he knew the character and content of the performance.  For his convictions of unlawful surveillance, the element that D made the recordings for his own sexual arousal or sexual gratification could be inferred from D placing the cameras in the victim’s bathroom and bedroom.

People v Schroo (KA 09-02050) - D was not in custody when he made incriminating statements to the police.  The lower court's determination that D was not in custody will not be disturbed unless it is “clearly erroneous,” which is not the case here.  At the first interview, D drove himself to the public safety building, was interviewed for 25 minutes, and the questions were investigative, rather than accusatory.  The second interview took place in D’s home, where he was also not in custody.

People v Spencer (KA 07-02181 & KA 07-02180) – Appeal No. 2 is reversed.  D’s waiver of indictment was invalid.  At the time that D waived his indictment and consented to be prosecuted by a Superior Court Information, he had already been indicted on burglary charges arising from the same incident.  Under CPL 195.10 (2) (b), waiver cannot be accomplished after indictment, even when it is D who orchestrates the scenario.  This contention is a jurisdictional one, which survives his appeal waiver and guilty plea.

People v Walker (KA 11-00648) – The lower court did not err in refusing to allow D to present the testimony of a false confessions expert.  Admissibility of expert testimony is within the lower court’s discretion, and the court properly determined that the expert did not possess knowledge beyond the ken of the average juror.  The lower court properly denied D’s motion for a subpoena for the victim's counseling records, as the reason for them was speculative and merely “grasping at a straw.”

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 him 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 Jose T. (CAF 11-00371) - 4AD modifies the child's permanency goal from placement for adoption to placement in an alternative planned permanent living arrangement with the child's foster parents.  There was not a sound and substantial basis in the record for the denial of the Attorney for the Child's petition to modify.  The Attorney for the Child established that there is a compelling reason why adoption is not in the best interests of the child.  The 14-year-old child adamantly refused to consent to adoption and wished to remain with his foster placement, where he is safe and happy.  The child currently has contact with his family and friends, including his older brother.  Adoption could remove him from this positive environment, diminish contact with his family and friends, and is against the child's express wishes.   Further, the child has a significant connection to an adult willing to be a permanency resource for him, which is required for APPLA placement.  His foster parents consider him to be a part of their family and unequivocally stated their willingness to be a resource for him as long as he needs.

Matter of Sean W. (CAF 10-01355) - 4AD affirms an order terminating a mother's parental rights based on permanent neglect.  The contention that the Family Court should have entered a suspended judgment lacks merit, as there was no evidence that the mother had a realistic, feasible plan to care for the child, and the record establishes that the mother was not likely to change her behavior.  The mother's recent progress did not warrant any further prolongation of the child's unsettled familial status.

Ineffective assistance of counsel may not be inferred from the attorney's advice to admit to the allegations in the petition.  With regard to the attorney's failure to request a suspended judgment or post-termination contact, the mother did not meet her burden of establishing that the deficient representation resulted in actual prejudice.  The evidence established that neither would have been in the child's best interests.

The court did not lack jurisdiction over the termination proceedings based on noncompliance with Social Services Law § 384-b (3) (c-l).  This statute concerns venue, not subject matter jurisdiction, and venue may be waived if not raised, as was the case here.  Further, this statute expresses a mere preference that a petition to terminate parental rights shall be assigned to the judge who heard the most recent proceeding.  This does not constitute a mandate and does not implicate subject matter jurisdiction.