Criminal Case Summaries:
· People v Bona (KA 11-01543) – Lower court erred by not allowing D to withdraw his guilty plea. After D was indicted, his case was transferred from County Court to drug court for consideration of judicial diversion pursuant to CPL 216.05. D agreed to participate in drug court and entered a plea. Though drug court informed D there would be a drug court contract, D at no time agreed on the record or in writing to abide by the release conditions of drug court (CPL 216.05 [5]). When D returned to court he refused to sign the contract and declined judicial diversion. The court proceeded to sentence D and denied his motion to withdraw the plea. 4AD agrees with D that he never entered judicial diversion, because there was never an order entered pursuant to CPL 216.05 granting judicial diversion, and that the court should have permitted him to withdraw his plea.
· People v Howard (KA 10-00153) – 4AD finds that the lower court erred when it permitted a fire marshal to testify about six categories of motivation for setting a fire, including revenge and crime concealment. The prosecution failed to present any proof that the six categories were generally accepted in the scientific community, or that the categories were beyond the ken of the juror. The error, however, was harmless. Additionally, there was no error in allowing the fire marshal to testify that he eliminated all causes of the fire except the “human element” (see People v Rivers, 18 NY3d 222).
Family Law Case Summaries:
· Matter of Kenneth L. (CAF 10-01967) – Family Court did not abuse its discretion by denying mother’s motion to vacate a default order in this TPR case. Although the mother contended that her car broke down on the way to the hearing and she could not find alternative transportation, this was not a reasonable excuse because the mother failed to advise either the court or the petitioner of her unavailability. The mother also contended that she contacted her attorney, but the attorney stated on the record that she did not contact him. Further, the mother did not demonstrate a meritorious defense to the TPR petition, and did not explain her four-month delay in attempting to vacate the order.
· Matter of Makayla L.P. (CAF 11-00689) – In this neglect case, 4AD finds that Matter of Afton C. (17 NY3d 1) does not require reversal. In Afton, the Court of Appeals held that the mere fact that a parent had been adjudicated a level-three sex offender and had not sought treatment, was insufficient to demonstrate that the parent breached a minimum duty of parental care and posed a near or impending harm to his children. The Court in Afton, however, explained that if there are other factors in addition to the sex offender classification, there may be sufficient evidence to support a neglect finding. Here, the father had been convicted of the sexual abuse of a young mentally challenged stepsister in the parent’s care. Further, after his release from prison for that conviction, the father was convicted of subsequent offenses, including third degree assault, stemming from an incident in which he allegedly bit, pinched, and threatened to kill the respondent mother. Thus, the serious nature of the underlying sex offense along with the father’s subsequent reckless behavior constituted sufficient evidence to support the neglect finding.
Family Law Case Summaries:
· Matter of Kenneth L. (CAF 10-01967) – Family Court did not abuse its discretion by denying mother’s motion to vacate a default order in this TPR case. Although the mother contended that her car broke down on the way to the hearing and she could not find alternative transportation, this was not a reasonable excuse because the mother failed to advise either the court or the petitioner of her unavailability. The mother also contended that she contacted her attorney, but the attorney stated on the record that she did not contact him. Further, the mother did not demonstrate a meritorious defense to the TPR petition, and did not explain her four-month delay in attempting to vacate the order.
· Matter of Makayla L.P. (CAF 11-00689) – In this neglect case, 4AD finds that Matter of Afton C. (17 NY3d 1) does not require reversal. In Afton, the Court of Appeals held that the mere fact that a parent had been adjudicated a level-three sex offender and had not sought treatment, was insufficient to demonstrate that the parent breached a minimum duty of parental care and posed a near or impending harm to his children. The Court in Afton, however, explained that if there are other factors in addition to the sex offender classification, there may be sufficient evidence to support a neglect finding. Here, the father had been convicted of the sexual abuse of a young mentally challenged stepsister in the parent’s care. Further, after his release from prison for that conviction, the father was convicted of subsequent offenses, including third degree assault, stemming from an incident in which he allegedly bit, pinched, and threatened to kill the respondent mother. Thus, the serious nature of the underlying sex offense along with the father’s subsequent reckless behavior constituted sufficient evidence to support the neglect finding.
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