Case Summaries - Fourth Department Decisions Released on November 18, 2011 & October Term Stats

Criminal Cases

·        People v Bell (KA 08-01880) – 4AD rejected D’s argument that his waiver of the right to appeal was invalid because County Court did not specifically inform him that the general waiver of the right to appeal encompassed that court’s suppression ruling.

·        People v DeProspero (KA 11-01004) – (Opinion by Peradatto, J.) D pleaded guilty to possessing a sexual performance by a child after an investigation uncovered that D downloaded child pornography to his computer.  After sentencing, D’s attorney contacted the District Attorney requesting the return of computer equipment that had been seized in connection with the investigation pursuant to a May 2009 warrant.  Prior to returning the equipment, in January 2010, the State Police examined it and discovered, inter alia, evidence of D’s commission of predatory sexual assault against a child.  D was indicted and pleaded guilty after his challenge to the January 2010 search, inter alia, was denied.

4AD affirms the denial of D’s suppression motion finding that the January 2010 search of D’s computer equipment did not violate his rights under the Fourth Amendment.  D provided no support for his contention that the police’s authority to search his computer equipment was terminated once the 2009 prosecution ended.  No deadline was specified in the warrant and it authorized the police to retain the equipment for further analysis and investigation. 

Further, the Fourth Amendment itself does not contain any time limit in which police must examine computer equipment after it is seized.  The Fourth Amendment only requires that the search be made within a reasonable time, and here, that requirement was met.  There was no evidence of bad faith on the part of the DA or police, and the prosecution presented evidence demonstrating that the delay in searching the computer equipment was not unreasonable.  4AD also notes that police had an obligation to search D’s equipment for contraband before returning it to him, and that returning child pornography to D would in and of itself be a crime.  Finally, 4AD rejected the argument that police were required to obtain a new warrant to search the property that they seized pursuant to the May 2009 warrant.

·        People v Molson (KA 10-01757) – 4AD rejects D’s argument that the evidence was legally insufficient to establish his liability as an accessory (second-degree murder).  Accessorial liability requires that D, acting with the mens rea required for commission of the crime, intentionally aids another in the conduct constituting the offense.  Here, 4AD concludes that D shared a common purpose and collective objective with his accomplice and D either shot the victim or shared the accomplice’s intent to do so.  A witness testified that she saw D approaching a porch with a gun raised toward the victim.  Before the shooting, D overheard the accomplice say he was going to “Fxxx [the victim] up” and D arrived and left the scene with the accomplice.  Also, soon after his arrest, D told a jail officer that he “just committed murder.”

The accomplice’s “Fxxx [the victim] up” statement was not hearsay because the prosecution sought to admit it as circumstantial evidence of D’s state of mind—i.e., D went to the crime scene knowing that violence would result.  D’s statement to another individual that he was told to leave a bar shortly before the shooting because the bar’s manager said “he had a gun” was hearsay.  That statement was double hearsay (because it repeated what the bar manager said), and was therefore inadmissible under the general rule that a defendant’s out of court statements are admissible.  The error, however, was harmless.

·        People v Moss (KA 10-00082) – 4AD rejects D’s argument that the CPL 710.30 notice did not give him adequate notice of the statement the prosecution intended to introduce at trial.  The notice provided that D stated he “was just going to steal some cable from the house,” while at trial an officer testified that D said he “went into the house to steal cable.”  The prosecution is not required to give a verbatim report of the complete oral statement in the CPL 710.30 notice.

·        People v Pealer (KA 11-01024) – 4AD rejects D’s argument that County Court’s admission of breath test calibration and simulator solution certificates, used in verifying the accuracy of the breathalyzer test, violated the Confrontation Clause.  Both documents are used to establish that the breath test machine used in a particular case is accurate.  County Court admitted the documents as business records under CPLR 4518 (c), over D’s objection that admission of the documents violated his rights under Crawford to cross-examine the individuals who certified the results in the documents.  4AD explains that the documents are not accusatory.  Alone, they do not shed any light on D’s guilt or innocence.  The individuals who prepared the documents were therefore not D’s “accusers.”  4AD further explains that this case differs from the US Supreme Court’s recent decision in Bullcoming v New Mexico because there, documents were introduced certifying D’s BAC.  That evidence was directly probative of an element of the offense, whereas here, they are not.  Further, the US Supreme Court in Melendez-Diaz v Massachusetts stated that “documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”  The documents here are of that type.

Family Court Cases

·        Matter of Coleman v Murphy (CAF 11-01094) – 4AD reverses Family Court’s dismissal of father’s petition to terminate his support obligation.  Father alleged that mother had frustrated his visitation rights and his son had abandoned him.  Family Court dismissed the petition without prejudice “for lack of proper cause of action for filing.”  The Family Court Referee erred in dismissing the petition without conducting a hearing.  Such a hearing was required because the father’s petition established a prima facie case that his son abandoned him and his visitation rights were frustrated.  Deliberate frustration of visitation rights may, under certain circumstances, warrant the suspension of future support payments.  4AD therefore remitted for further proceedings.

·        Matter of Moore v Kazacos (CAF 11-00116) – Family Court Referee did not err by failing to consider the factors delineated in Tropea v Tropea (delineating factors to be considered when determining whether relocation is in the best interests of the child).  The mother relocated from Syracuse to North Carolina shortly after filing an initial custody proceeding.  Because this was an initial custody determination, a strict application of the Tropea factors was not necessary.

·        Matter of Brian P. (CAF 10-01425) – 4AD rejects mother’s arguments that the evidence was legally insufficient to establish that she neglected her son and that such a finding was negated by the fact that she sought medical care for her youngest son.  While the mother sought medical care for her son and brought him to the hospital when directed to do so, she continued to live with her boyfriend despite the fact that she knew or should have known that the boyfriend was physically abusing her son.  Thus, the finding that the mother failed to take steps to avoid the risk of harm to her son by continuing to live with the boyfriend and allowing him to babysit her son, was supported by the preponderance of the evidence.

·        Matter of Thurston v Skellington (CAF 11-00883) – 4AD reverses Family Court’s award of custody to the maternal grandmother because it was not supported by a sound and substantial basis in the record.  4AD notes that while the grandmother loves the child and wishes to care for him, the un-refuted evidence demonstrated that she lacks the capacity to provide for the child’s emotional and intellectual development.  The grandmother had a long history of indicated child protective services reports, was unemployed and relied on governmental assistance, suffered from health problems, did not drive, and had a limited education. 4AD notes that those circumstances are particularly problematic in light of the child’s behavioral and learning disabilities.  The foster mother and the child’s teacher testified that the child required constant one-on-one attention.  And, DSS and a clinical psychologist expressed concern that the grandmother would not be able to care for the child, especially as he got older.