Criminal Case Summaries:
· People v Bracy (KA 10-01766) – 4AD finds that the marijuana found on D’s person should have been suppressed, but the lower court properly denied suppression of a gun. 4AD initially determined that the officer did not unlawfully approach D and ask for identification. The officer observed D standing with another man next to an occupied vehicle in an area known for violence. D and the man were standing in the street, such that cars had to drive around them. Under these circumstances, the officer had an objective credible reason for approaching D and asking for identification (People v De Bour).
4AD next concluded that the officer had a reasonable suspicion that D posed a threat to her safety, and was therefore justified in frisking D. When the officer first asked for ID, only one person answered (one of the men in the car), and all that he said was that he was not driving. The officer again asked for ID but no one answered, and D and the other man both quickly reached toward their pockets or waistbands. 4AD also noted that the men were wearing long hooded jackets that covered their pants pockets. Based on this information (and that the area was known for violence), the officer justifiably frisked the men for her safety, and discovered the gun during the frisk.
Finally, 4AD concluded that the marijuana should have been suppressed because the officer observed the bag when she lifted D’s shirt, and thought that it was a kit used for testing marijuana. Because the purpose of the frisk was to search for weapons, the officer exceeded the scope of the search by removing the bag from D’s waistband to determine the contents.
· People v Connors (KA 10-02424) – Lower court did not err by not ordering a mental competency exam sua sponte pursuant to CPL 730.30. D had a history of mental illness and was hospitalized because of suicidal ideation. 4AD explained that a defendant is presumed competent, and a history of mental illness does not by itself undermine that presumption. During the course of the proceedings D was represented by two attorneys, neither of which requested a competency exam. The lower court also asked the first attorney whether an exam should be ordered while D was hospitalized. The court also had the opportunity to observe D and question her about her competence. D told the court that the medication she was taking helped her condition, and that she understood that the decision to plead guilty was her own.
· People v Dennis (KA 10-00664) – The lower court did not err by giving the jury an instruction on consciousness of guilt because the prosecution presented evidence warranting the instruction. D became a suspect in a murder about one month after it occurred. Police attempted to locate D at the address on his driver’s license, and at the addresses of his current and former girlfriend. Police additionally informed D’s family they were looking for him. Six months later, when police obtained information regarding D’s whereabouts, he was driving his car, which he rammed into a police car before surrendering. Also, the prosecutor was not required to prove that D was aware the police were looking for him.
· People v Kalb (KA 10-01131) – 4AD rejects D’s argument that the lower court violated CPL 310.30 and People v O’Rama because he was denied a meaningful opportunity to give input on or fashion a response to a jury note. D’s argument was not preserved. Preservation was required because, unlike O’Rama, “this [was] not a case where there was ‘a failure to provide [defense] counsel with meaningful notice of the contents of the jury note or an opportunity to respond.’” D, defense counsel, and the prosecutor knew the contents of the jury note, which requested additional instructions on the elements of the charged offenses. D and defense counsel were present throughout the proceedings, and no objection was made to the content of the jury note or to the court’s response to it.
· People v Kelley (KA 10-00306) – 4AD rejects D’s argument that he was improperly questioned without being given Miranda warnings. D was not in custody. D was questioned in his sister’s home for about 20 minutes, and there was no indication that his freedom of movement was restricted. D was walking around the room and changed his shirt while speaking with police, and his brother and sister were present in the room. While the questioning may have been accusatory, that alone did not result in D being in custody for Miranda purposes.
· People v McKinney (KA 08-00176) – 4AD modifies D’s conviction of leaving the scene of a personal injury incident (D felony), to the same charge as an E felony. The People conceded at oral argument that D was indicted only for the E felony, and that Supreme Court erred when it granted the People’s oral motion to amend the indictment to reflect that the victim died, thus raising the offense to a class D felony. Because the prosecution proved beyond a reasonable doubt that D left the scene of a personal injury incident that resulted in a serious physical injury, 4AD modifies the judgment by reducing the conviction from a class D to a class E felony.
· People v Pallagi (KA 11-00745 & KA 11-00747) – 4AD reverses Ds’ conviction of grand larceny in the fourth degree. The Ds stole items from a store by removing the security sensors and hangers from the items. 4AD first determined that the lower court erred by denying Ds’ motion to strike the testimony of a police officer, who recounted a statement made by one of the Ds to police. The specific statement was not included in a CPL 710.30 notice. 4AD notes that while the People need not provide all statements made by a defendant verbatim, “they must be described sufficiently so that the defendant can intelligently identify them.” Here, the statements were not described adequately such that the Ds could intelligently identify them.
4AD then explained that if this were the only error, it would remand for a new trial. Nonetheless, the Court further found the evidence legally insufficient because the People did not prove beyond a reasonable doubt that Ds stole property worth $1,000 or more. 4AD explained that the evidence was legally sufficient to establish petit larceny, but it would not simply modify the judgment by reducing the charges because the CPL 710.30 error requires a new trial. As a result, 4AD dismisses the indictment against the Ds, but does so without prejudice to the People to file any appropriate lesser charge.
(Scudder, J., dissenting) – J Scudder first disagrees with the majority that the lower court erred by denying Ds’ motion to strike the police officer’s testimony. He does agree with the majority that the evidence is legally insufficient and would therefore modify the judgment by reducing the convictions of grand larceny in the fourth degree to petit larceny. J Scudder further notes that once the majority determined that the court erred by failing to strike the officer’s testimony, it could not go on to then consider the sufficiency of the evidence. Instead, it should have remanded for a new trial on the indicted charges. J Scudder argues that the Court of Appeals’ implicitly held in People v Wright (17 NY3d 643) that “if there is a trial error that deprived defendant of a fair trial, the error deprives this Court of the authority to review a further contention that the conviction is not based upon legally sufficient evidence and to reduce the conviction to a lesser included offense.”
Family Law Case Summaries:
· Matter of Jayden B. & Nathan F. (CAF 11-00694) – In this neglect case, 4AD reverses the Family Court’s dismissal of DSS’s petition because the evidence established neglect by a preponderance of the evidence. 4AD determined that the children were in imminent danger of emotional harm based upon incidents of domestic violence between respondent and the mother of the children. Respondent did not appear at the fact-finding hearing and 4AD therefore drew the strongest inferences against her that the evidence permitted. The evidence demonstrated that during one incident, police were called to the home, and that mother admitted she received a scratch on her neck because she and respondent were fighting. The younger child’s proximity to this physical and verbal fight, together with a pattern of ongoing domestic violence, placed him in imminent risk of emotional harm. The five-year-old child also demonstrated with Barbie dolls to a CPS worker how another domestic violence incident occurred. The child further told the CPS worker that mother and respondent fought often, that respondent locked them out of the house, and that he was afraid of respondent. The child’s statements were sufficiently corroborated. In article 10 proceedings, corroboration is satisfied by “‘[a]ny other evidence tending to support the reliability of the previous statement’ of the child.”
· Matter of Miranda F. (CAF 10-01802) – In this neglect case, 4AD modifies the Family Court’s order insofar as it found that the father derivatively neglected his two biological daughters. 4AD preliminarily rejected the Attorney for the Child’s argument that the appeal should be dismissed insofar as it concerned the father stepdaughter because the AFC was not served with a notice of appeal. The AFC filed a brief and appeared at oral argument, and 4AD excused the defect in service and treated the appeal as timely taken pursuant to CPLR 5520 (a). Petitioner conceded at oral argument that it did not present evidence of derivative abuse with respect to the biological daughter, and the lower court therefore erred in granting summary judgment. With respect to the stepdaughter, the father was convicted of rape in the third degree. That conviction is sufficient to support a finding of abuse under the Family Court Act. While the Petitioner did not submit nonhearsay testimony establishing that the father was convicted of rape, the judge presiding at Family Court also presided at the criminal case and therefore was able to take judicial notice of the latter proceedings.
· Matter of Atreyu G. and Reyauna G. (CAF 10-02508) – In this TPR case, 4AD rejects the mother’s argument that she was denied procedural due process because Family Court conducted a fact-finding hearing in her absence. A parent’s right to be present at fact-finding and dispositional hearings in TPR cases is not absolute. The mother initially appeared in the matter without counsel, and Family Court adjourned the case and appointed counsel. The mother failed to appear on the rescheduled date. Counsel did appear, but he did not know the mother’s whereabouts and she had not met with him to prepare for the hearing. The record also showed that the mother was aware of the hearing. Although the mother claimed she was in jail until that morning, she made no attempt to contact her attorney, and the statement does not establish that she was in jail at the time of the hearing. 4AD concludes that based on the amount of time the children had spent in foster care, and on the fact that counsel vigorously represented the mother’s interest, Family Court did not abuse its discretion by proceeding in the mother’s absence.
· Matter of Liliana G. (CAF 11-00296) – In this neglect case, 4AD determines that the Family Court erred by determining that DSS was no longer required to use reasonable efforts to reunify the mother and child. DSS alleged that the mother’s parental rights to two other children were involuntarily terminated. Family Court Act § 1039-b (b) provides that if a parent’s rights have been terminated with respect to a sibling, DSS is not required to use reasonable efforts to reunite the parent and the subject child “unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future.” 4AD explained that when there is a genuine issue of fact created by the pleadings, due process requires that an evidentiary hearing be held. Here, there was a genuine issue of material fact created by the pleadings and the court below should have held a hearing before determining that DSS was no longer required to use reasonable efforts.
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