Criminal Cases:
· People v Bryant (KA 08-01316) – 4AD finds that the lower court erred when it denied D’s challenge for cause of a prospective juror. The juror stated during voir dire that there was a possibility she would presume D was guilty if he did not testify. That statement cast serious doubt on the juror’s ability to render a fair verdict, and the trial court was required to elicit an unequivocal assurance from the juror that she was able to reach a verdict entirely based on the court’s legal instructions. 4AD finds that the jury panel’s earlier collective acknowledgment that they would follow the court’s instructions was insufficient to constitute such an unequivocal assurance. 4AD thus granted a new trial.
· People v Glynn (KA 09-01504) – Trial judge was not required to recuse himself based on the fact that he previously represented D on an unrelated matter, and may have previously prosecuted him on another unrelated matter.
· People v Johnson (KA 11-02069) – The lower court suppressed a handgun seized from D. The prosecutor moved for reconsideration of that decision. The lower court granted reconsideration but adhered to its original decision. The prosecutor appealed from the original order but failed to appeal from the subsequent order, which superseded the original order. 4AD exercises its discretion in the interest of justice to treat the prosecutor’s notice of appeal as one taken from the original order. 4AD also reverses the order suppressing the gun because D abandoned the gun before making any contact with the police. The abandonment was not coerced or precipitated by illegal police conduct.
· People v Johnson (KA 11-00548) – In this appeal from a SORA determination, 4AD modifies D’s risk level to level one from level two. 4AD determined that the lower court erred in assessing 20 points against D under risk factor 7, for D’s relationship with the victim. Points may be assessed under that risk factor if the crime was directed at a stranger. Here, D was acquainted with the victim as a consequence of going to church with the victim’s mother and aunt. The Risk Assessment Guidelines and Commentary provide that a “stranger” is anyone who is not an actual acquaintance. There was also no evidence that established D’s primary purpose was to establish a relationship with the victim in order to subject him to sexual abuse.
Martoche, J., and Sconiers, J., dissent and contend that the prosecution established by clear and convincing evidence that D’s primary purpose was to establish a relationship with the victim to subject him to sexual abuse.
· People v Lewis (KA 08-00131) – In this appeal from a conviction of second degree murder, among other charges, D contended that a statement he made to police was involuntary because it was obtained as a result of improper deception (i.e., the attempt to capitalize on the criminal liability of D’s girlfriend, and the use of a videotape as a prop). Deceptive police conduct does not render a statement involuntary unless the deception was so fundamentally unfair as to deny due process, or a threat or promise made by police was likely to induce a false confession. While threats to arrest a suspect’s loved one may result in suppression, police may properly capitalize on a defendant’s sense of shame or reluctance to involve his loved ones in an investigation, so long as the circumstances do not create a substantial risk that the defendant will falsely confess. Here, police did not promise not to arrest D’s girlfriend if he talked, nor were there other circumstances present that created a risk of false incrimination. The use of the videotape of the prop also did not render D’s statements involuntary.
· People v Noguel (KA 11-01926) – D was convicted of assaulting a homeless pandhandler and contended on appeal that defense counsel was ineffective because he failed to challenge a juror. The juror mentioned on voir dire that he volunteered at a homeless shelter. He did not realize he knew the victim, however, until he saw his picture at trial, at which time he promptly informed the trial court that he recognized him. The juror also told the court that he might have “sensitivity” to the victim, who he had seen several times. But, the juror unequivocally stated that he could decide the case based solely on the evidence, and that he could follow the court’s instructions and render a verdict free from sympathy to anyone. Based on the juror’s assurances of impartiality, a challenge to the juror would have been unsuccessful and counsel was not ineffective. 4AD notes that the Third Department’s decision in People v Wlasiuk (90 AD3d 1405) is inapposite because the juror in that case failed to disclose his knowledge of the case during voir dire. Here, the juror did not fail to disclose any information during voir dire and did not know anything about the case before trial started. Further, the attorney in Wlasiuk made an additional error that greatly prejudiced the defendant.
· People v Rogalski (KA 11-02070) – 4AD reverses the dismissal of one count of endangering the welfare of a child because the evidence before the grand jury was legally insufficient. Centra J., and Lindley J., dissent and determine that driving while intoxicated with a child in the vehicle, by itself, cannot support a charge of endangering the welfare of a child. Here, police approached D’s car after she made a wide turn and pulled into a parking lot. D was charged with felony DWI. The dissenting judges conclude that that evidence was insufficient to establish that D engaged in conduct that was likely to result in physical harm to the child.
· People v Stepney (KA 10-01958) – D contended that the lower court erred by failing to excuse a prospective juror who stated he was friends with a former police officer, and that he would probably be more likely than not to credit the testimony of an officer. Nonetheless, D did not raise the issue below, nor did D exhaust his peremptory challenges. 4AD also rejects D’s contention that the court’s failure to excuse the prospective juror sua sponte constituted a mode of proceedings error. Defense counsel was not ineffective for failing to challenge the juror. 4AD notes that during voir dire, one or more unidentified jurors made comments that could be construed as highly favorable to D, and it was possible that the prospective juror who defense counsel did not challenge might have made those statements. D thus failed to show an absence of a strategic explanation for defense counsel’s actions.
Family Law Cases:
· Matter of Maria F. (CAF 10-02394) – In this custody proceeding, Family Court properly granted the Attorney for the Child’s motion for summary judgment to dismiss the father’s petition seeking increased visitation. Because the father’s parental rights were terminated following a finding of permanent neglect, he lacked standing to seek increased visitation. 4AD also disagreed with the father and the AFC that the matter should be remanded for a dispositional hearing, because the issue of standing must be resolved in favor of the father before the best interests of the child issue can be considered.
· Matter of Saperston v Holdaway (CAF 11-01578) – In this custody case, 4AD modifies the Family Court’s order, which granted the parties joint custody of the child, and awarded the father primary physical custody. 4AD awards the mother primary physical custody. Initially, 4AD notes that because this was an initial custody determination, the factors set forth in Tropea v Tropea did not have to be strictly applied. Instead, relocation was just one factor in the court’s custody determination. Here, the Family Court placed undue emphasis on the mother’s relocation and its custody determination lacked a sound and substantial basis in the record. The mother’s relocation to Brooklyn from Western New York did not justify awarding custody to the father because the child will have to travel in order to visit with the other parent regardless of which parent is awarded custody. 4AD, applying the factors set forth in Eschbach v Eschbach (56 NY2d 167), finds that awarding primary custody to the mother is in the best interest of the child because: the mother was the primary caregiver for the first 14 months of the child’s life, the mother demonstrated a superior ability to provide for the child’s intellectual and emotional development, and had a greater ability to provide for the child. 4AD remanded the matter so that Family Court could fashion a visitation schedule
Centra, J., and Martoche, J., dissent and contend that Family Court’s decision was supported by a sound and substantial basis in the record.
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