Criminal Case Summaries
· People v Anderson (KA 08-01544) – D’s waiver of appeal, although knowing, voluntary, and intelligent, did not encompass his challenge to the denial of his request for YO status because no mention of YO status was made during the plea colloquy before D waived his right to appeal. D’s challenge to the severity of his sentence was also not encompassed by the appeal waiver because he waived his right to appeal before the lower court advised him of the potential periods of imprisonment that could be imposed. Nonetheless, the lower court did not abuse its discretion by denying D’s request and the sentence is not harsh or severe.
· People v Barboni (KA 09-02360) – 4AD finds that evidence supporting D’s conviction of depraved indifference murder was legally sufficient. The victim, a 15-month-old child, was happy and healthy before he was left alone with D. Expert testimony showed the child sustained at least 5 traumatic blows to the head that caused his death, and sustained other injuries. Injuries were caused within 2 hours of death, during which time D was alone with the child. D was also apathetic in response to child’s suffering.
· People v Burnett (KA 07-02075) – Defense counsel was not ineffective for allowing D to appear in jail garb at trial. Counsel contacted D about wearing appropriate clothing and told D to let him know if he needed anything. D did not respond. Counsel also contacted D’s mother, who assured counsel she would take care of the clothing. 4AD determined that counsel therefore took appropriate steps to ensure D was dressed appropriately. D contended that counsel should have moved for an adjournment upon seeing D in jail garb, but 4AD explained that “a defendant is not denied effective assistance of counsel for failing to make a motion ‘that has little or no chance of success.’”
· People v Dillon (KA 10-01092) – 4AD finds that the prosecution established by a preponderance of the evidence that the victims sustained losses in the amount of about $38K, and by failing to request a hearing on the issue of his ability to pay restitution, D failed to preserve his contention that the court failed to consider his ability to pay. In any event, the pre-sentence report contained information about D’s education history and employment income, and 4AD thus concluded that the lower court considered D’s ability to pay pursuant to PL § 65.10 (2) (g).
(Carni, J., dissenting) – Judge Carni disagreed with the majority that D failed to preserve his contention that the court did not consider his ability to pay the restitution, and further disagreed that the record established D’s ability to pay. D was sentenced to 5 years probation and ordered to pay restitution. D’s sentence did not include an incarceration component. With respect to preservation, the majority relied on People v Ford (77 AD3d 1176), where the defendant received a prison sentence and ordered to pay restitution, and People v Passalacqua (43 AD3d 964), which provides no indication whether the defendant received a prison sentence. Judge Carni argues that the nature of the sentence imposed is critical because § 65.10 permits restitution as a condition of a sentence of probation only in the amount a defendant can afford to pay. Because a defendant has a right to be sentenced according to the law, preservation would not be required in this case. With respect to D’s ability to pay, the lower court’s written decision is silent on that issue, and Judge Carni could not agree with the majority that this Court should search the record to determine D’s capacity to pay. In any event, even if searching the record was appropriate, the record here shows D would be unable to pay the $38K in restitution in the required time.
· People v Jerge (KA 11-00536) – 4AD reverses because County Court erred when it denied D’s CPL 330.30 motion based on juror misconduct. CPL 330.30 permits a trial court to set aside a verdict when during the trial, improper conduct may have occurred out of the court’s presence, which may have prejudiced D, and was not known by D at the time the verdict was rendered. Here, two jurors interjected their professional knowledge into deliberations by voicing professional opinions that were not the subject of expert testimony during the trial. The jurors, one a DSS caseworker and the other a substance abuse counselor, both voiced that they had experience working with or counseling child sexual abuse victims. And, when other jurors voiced concerns about the victim’s credibility, the two jurors stated that they dealt with such behavior every day, that it was normal, and that “this is the pattern of how these things normally take place.” Moreover, the two jurors also opined that based upon their professional experience, the victim acted like a victim of sexual abuse. The concerned jurors testified at the post-trial hearing that they were swayed by the two professional jurors to convict D. The lower court erred in concluding that it was “common knowledge” that sexual abuse victims may delay reporting and have difficulty recalling specifics of abuse. 4AD explains that the behavior and response of sexual abuse victims is not within the common ken of juror knowledge, and expert testimony on this subject is permitted.
(Fahey, J., dissenting) – Judge Fahey finds no error in denying the 330.30 motion but would modify the judgment because the proof at trial rendered the second degree sexual abuse count duplicitous. With respect to the 330.30 motion, the first of the testifying jurors could not state that the professional jurors indicated that they worked with or counseled sexual abuse victims. The professional jurors’ conduct therefore did not rise to the level of juror misconduct. In addition, the second testifying juror indicated upon cross-examination that she had an independent mind and Judge Fahey could not conclude that she reached a verdict based on something other than the proof presented at trial.
· People v Kalikow (KA 11-01306) – 4AD affirms County Court’s order suppressing evidence and statements. Although police may lawfully arrest a person for violating an ordinance and search him or her incident to that arrest, here, police merely issued an appearance ticket to D for violating an open container ordinance. Because police had no intention of performing a custodial arrest, their search of D was unlawful.
· People v Morrison (KA 09-00310) – The prosecution failed to turn over a written report made by an investigator with the Medicaid Fraud Control Unit until after the investigator testified at trial. The report was made after the investigator interviewed D two weeks after he allegedly raped a 90-year-old resident of the health care facility at which D worked. 4AD found that the prosecutor’s failure to turn over the report did not constitute a Brady violation. D knew of, or should have known of, the statements he made to the investigator and the report therefore would not have revealed any essential information the defense did not already know. Also, here, despite the delayed disclosure, D was given an opportunity to use the report to cross-examine the witness after his original testimony was stricken and the witness was recalled. 4AD did agree that the delayed disclosure constituted a Rosario violation and violated CPL 240.20 (1) (a). D, however, was not prejudiced because the trial court, rather than granting a mistrial, provided “suitable alternative relief.”
4AD further found that it was error to allow into evidence a certified DNA report prepared by an analyst who did not testify. A supervisor, who did not have anything to do with the DNA analysis performed, testified as to the results instead. Admission of the report and the supervisor’s testimony violated the Confrontation Clause. Citing Bullcoming v New Mexico, 4AD concluded that the “People could not substitute [the testifying analyst’s] testimony for that of the actual analyst who performed the tests . . . .” The error, however, was harmless.
· People v Peck (KA 08-00330) – D pled guilty to burglary, a class D felony, and was promised a one-year conditional discharge if he completed a drug treatment program successfully. If he did not, he would be sentenced to 1 to 3 years. D was terminated from the drug treatment program because of post-plea arrests. At sentencing, D denied the charges and requested an opportunity to prove his innocence. County court, relying on the “mere fact” of D’s arrests, sentenced him to 1 to 3 years. 4AD reserved decision and remitted for a hearing. 4AD first noted that even if D’s waiver of appeal was valid, it did not encompass his argument that the court failed to conduct an inquiry to determine whether there was a legitimate basis for D’s termination from drug court. 4AD then explained that the court failed to conduct an inquiry of sufficient depth to determine whether there was a legitimate basis for D’s termination, including whether the post-plea arrests were “without foundation.”
· People v Poole (KA 11-01407) – In this appeal from a SORA determination, County Court did not err when it assessed 30 points against D under risk factor 3, for the number of victims. Children depicted in pornographic images constitute “victims” for SORA purposes. Here, D admitted that he possessed thousands of images and hundreds of videos depicting child pornography, and the People therefore established by clear and convincing evidence that D’s crime involved 3 or more victims. D also admitted that he did not know any of the children depicted in the images, and the Court therefore properly assessed 20 points under risk factor 7, for a crime that “was directed at a stranger.”
· People v Webb (KA 10-00852) – 4AD found that D did not receive effective assistance of counsel. Despite the court’s Sandoval ruling permitting the DA to ask D about 3 prior convictions but precluding questioning about a 4th conviction, counsel elicited the fact of this fourth conviction from D. Counsel then failed to object when the prosecutor questioned D about the underlying facts of this conviction, which involved flight from police (as did this case). Counsel’s elicitation of this 4th conviction could not be deemed strategic and deprived D of a fair trial, especially because D’s credibility was central to his defense. Defense counsel further failed to object when the prosecutor elicited testimony from a witness that D’s nickname was “Threat,” and again failed to object when the prosecutor told the jury they should consider D’s nickname as evidence that he possessed a weapon.
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