Criminal Case Summaries
· People v Bailey (KA 10-01963) – 4AD finds D was not deprived of his right to testify before the grand jury. Three months after an altercation at Attica Correctional Facility, D was visited by a police investigator at another facility. Charges had not yet been filed. At that visit, D told the investigator “I have nothing to say at this time. Also at this time I request an attorney and to be present at any criminal proceedings or hearings if any take place.” D was later indicted without having testified before the grand jury or being given notice of the grand jury presentation. 4AD concludes that D’s statement was not sufficient to invoke his rights under CPL 190.50. D’s statement was not in writing, was not served on the DA, nor did it expressly state he wanted to testify at the grand jury. Also, the DA had no obligation to inform D of the grand jury presentation because he had not been arraigned in a local criminal court upon a currently undisposed of felony complaint (CPL 190.50 [5] [a]).
· People v Burgos (KA 10-01039) – 4AD finds that D was not denied effective assistance of counsel based on his trial attorney’s failure to call a medical expert to testify about the absence of evidence of sexual abuse. D was charged with course of sexual conduct against a child and there was a 1 year delay in reporting from the last incident of sexual abuse. Given the delay in reporting and the fact that there was no vaginal penetration, 4AD determined that it was not likely that there would be evidence of sexual abuse. D’s reliance on Gersten v Senkowski (426 F3d 588) was misplaced. There, the Second Circuit granted a writ of habeas corpus based on counsel’s failure to call a medical expert to rebut the testimony of the prosecution’s expert. Here, the prosecution did not call an expert to testify about the signs of sexual abuse.
4AD also rejects D’s contention that the prosecution misled him by introducing a Valentine’s Day card he sent to the victim, because in the response to the bill of particulars the prosecution indicated it did not intend to offer any statements made by D at trial. The prosecution had no duty to disclose this statement because it was not made to a public servant engaged in law enforcement activity, and the statement was therefore not discoverable.
· People v Coapman (KA 11-01329) – 4AD finds that lower court did not abuse its discretion in denying D’s request for an adjournment to secure the attendance of a defense witness. When seeking an adjournment, a defendant must show that the witness’s testimony would be material, noncumulative, and favorable to the defense. Here, D failed to show the testimony would be material. Further, although the witness was scheduled to leave the country the third day of trial, the court offered to allow the witness to testify out of order or by video. Because the court offered to allow the witness to testify before he departed, 4AD finds that D failed to show that he was prejudiced and that the lower court abused its discretion.
Family Law Case Summaries
· Canfield v McCree - (CAF 10-02113) - In a custody and visitation proceeding, the court did not abuse its discretion by limiting testimony concerning various verbal altercations between the parties. The court was well aware of the parties’ acrimonious relationship, evident during two years of proceedings prior to the hearing, and any further testimony would have been cumulative.
· Grosso v Grosso - (CAF 11-00903) - An order increasing the father’s child support obligation is reversed, as the court erred in calculating his income. Father is a sole shareholder of a subchapter S corporation, and thus considered “self employed” under the CSSA. It was an abuse of discretion for the support magistrate to include entertainment expenses that were listed as deductions on the corporation’s tax return, finding that they were not properly deducted from the corporation's income. For a self employed parent, allowable business expenses should be deducted from income, to the extent they reduce personal expenditures. Here, the mother did not meet her burden of establishing that the expenses were personal in nature. There is no testimony or evidence in the record regarding whether these expenses were business or personal or whether they reduced the father’s personal expenses.
· Matter of Alexis H. (CAF 10-02304) – Neglect was established by a preponderance of the evidence. Imminent danger resulted from mother’s failure to maintain the family residence free from unsanitary or unsafe conditions, her long-standing history of mental illness and noncompliance with treatment, and her failure to seek treatment for substance abuse. This evidence, combined with the adverse inference from the mother’s failure to testify, supported the court’s finding of imminent impairment to the children.
The court agreed with the mother that the Family Court erred in including references to treatment from September 2006, unproven by the evidence. The court’s oral decision, however, made no reference to that treatment, and where an order and decision conflict, the decision controls. Such inconsistency may be corrected on appeal under CPLR 5019 (a). The court, therefore, modified the order to vacate all references to this treatment.
· Marino v Marino (CAF 10-01248) – In an appeal by the Attorney for the Child, the award of sole custody to the father is affirmed. There was ample evidence that the mother interfered with the father’s visitation, even after she was warned several times by the court. The court is not required to abide by the wishes of the children to the exclusion of other factors in the best interests analysis, especially where following these wishes would be tantamount to severing her relationship with her father, which would not be in her best interest.
· Matter of Shirley A.S. (CAF 11-01027) – In an appeal of the termination of his parental rights, the father contends that the admission of his records from a drug treatment facility violated 42 USC § 290dd2. But the federal statute does not apply without evidence that the father was treated by a facility “conducted, regulated, or directly or indirectly assisted by any department of agency of the United States.” The father presented no such evidence. In addition, these records are subject to disclosure where there is good cause for it, which clearly exists in this case.
The further contention that the records were not properly certified pursuant to Family Court Act § 1046 is rejected, as that statute does not apply to proceedings to termination parental rights pursuant to Social Services Law § 384-b. In any event the records were properly certified pursuant to CPLR 4518.
· Matter of Nicholas W. (CAF 10-02105) – Order finding child to be neglected is reversed. Father is alleged to have struck his son in the face. Based on this incident, the father pled guilty to assault in the third degree. There was no allocution concerning the conduct underlying the conviction. In Family Court, before the same judge who presided over the criminal case, DSS moved for summary judgment on its neglect petition, based upon the plea. The court granted the motion.
4AD found that DSS failed to meet its burden of establishing that the acts underlying the assault conviction constituted neglect as a matter of law, and thus the issues in the neglect proceeding were resolved by the plea. DSS did not establish that the father intended to hurt his son or that his conduct was a pattern of excessive corporal punishment. Matter is remitted to family court for further proceedings before a different judge.
· Paul S. v Rita S. (CAF 10-02368) (Appeal #2)
Family court properly exercised temporary emergency jurisdiction pursuant to Domestic Relations Law 76-c (3) over children from the state of New Mexico, because there was an imminent risk of harm.
After New Mexico parents were criminally charged with child abuse and ordered to avoid contact with their 4 children, the parents placed them with their aunt and uncle in New York. When the parents were given permission to make changes to the placement, they attempted to take the children away from the aunt and uncle. The aunt and uncle refused and filed for custody in NY family court. The court asserted temporary emergency jurisdiction, granted the request for temporary custody, and DSS filed a neglect petition. A NM family court, asserting jurisdiction over the children, ordered that they be sent to Ohio to live with guardians chosen by the parents. The NY family court refused to follow the NM order, and after finding that there was a continued emergency, the court determined that the children were neglected and placed the children in the custody of DSS.
4AD agreed that the family court had continuing emergency jurisdiction over the children, because there was a real and immediate emergency requiring NY state intervention to protect the kids. In the beginning, 76-c (3) applied because the parents were threatening to take the children to an undisclosed location and there was no NM order to prevent it. After the NM family court issued an order, however, the court still had emergency jurisdiction because the case fell into a very narrow exception to 76-c (3), which states that the emergency order should stay in effect until the home state has taken steps to assure the protection of the children. The Court found that New Mexico has not acted to assure protection of the children. No abuse or neglect proceeding was ever commenced. The family court did not appoint an Attorney for the Children and the court changed the children’s placement without giving the kids a voice in the courtroom, or making a best interests determination. Moving the children to Ohio would perpetuate the emotional abuse and deprivation and demonstrate to the children that their abusive parents were still in control.
The dissent argued that there was no imminent danger that the children would be placed back with or under the control of their parents to justify invoking the exception to 76-c (3), which should be used exceedingly rarely. The NM court ordered the parents to attend a workshop, approved a home study of the Ohio family, ordered that the children not be removed from that family, and put an order of protection in place prohibiting the parents from communicating with the children regarding the custody or criminal case. The majority has created a jurisdictional competition with NM, and there is nothing to suggest that NM is not competent to determine custody in this matter.
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