Stats & Case Summaries - Fourth Department Decisions Released on March 16, 2012

Criminal Cases:

·        People v Allen (KA 10-00080) – D was convicted of second degree murder and weapons offenses.  The lower court did not abuse its discretion when it denied D’s motion to sever his trial from that of his co-defendant.  There was no irreconcilable conflict between defense theories.  Neither defendant blamed the other for the shooting, and both took the general defense approach of attempting to show that the prosecutor could not show that the codefendant was the shooter.

·        People v Bachiller (KA 11-01328) – 4AD reverses lower court’s decision granting suppression of a handgun.  Police received a report of a stabbing.  When they arrived at the scene, there were about 100 people leaving a house party, and the officers observed a heated argument between D and another man.  The area had been the scene of a homicide and numerous violent crimes.  Police then saw the other man run, and D started to chase him.  At that point, the officers had a founded suspicion that criminal activity was afoot, and could lawfully make a common-law inquiry.  A number of officers began patrolling to area to determine whether D and the other man were involved in the stabbing or other criminal activity.  When one officer spotted D, he began walking briskly in the opposite direction.  That officer radioed two others, who then saw D.  D again changed direction and started to run.  The officers observed D clutch an object in his waistband, and believed it was a gun.  The officers pursued D, who discarded a handgun while in flight.  4AD finds that D’s flight coupled with his grabbing of an object in his waistband justified police pursuit—“flight in response to an approach by police, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion.”

·        People v Dizak (KA 10-00616) – The prosecutor argued that D’s notice of appeal was defective because it was not served within 30 days after sentencing (see CPL 460.10 [1] [b]).  4AD concludes that any defect in service is not fatal because the prosecutor waived objection to the defect in service by responding to the appeal on the merits rather than filing a motion to dismiss the appeal at an earlier time.  The prosecutor also failed to demonstrate any prejudice resulting from the failure to comply with CPL 460.10 (1) (b).  4AD nonetheless affirms D’s conviction of conspiracy and criminal solicitation.  The court agreed with D that the lower court erred when it limited his cross-examination of a prosecution witness.  Although the court correctly refused to allow D to cross-examine the witness about his youthful offender adjudication, it erred by limiting his cross-examination about the underlying circumstances of the adjudication.  The error, however, was harmless.

·        People v Drake (KA 10-01765) – Police observed D drive his vehicle into a gas station.  The night before, police had received 5 911 calls reporting a man displaying a handgun.  The calls provided a description of the man’s physical appearance, his car, and his location.  D’s physical appearance and car matched that description.  Based on that information, the police were justified in approaching D and asking his name.  When police parked their car behind D’s, he jumped out of the car, leaving the driver’s door open, and darted toward the store.  An officer testified he could not see D’s hand, and D was moving his hands in an unusual manner.  4AD concluded that based on the totality of the circumstances, police had a reasonable suspicion to temporarily detain D and conduct a protective frisk.  An officer attempted to frisk D, but was unable to do so because of his bulky clothing and repeated movements.  For that reason, 4AD found that the officer was justified in placing D in the back of a patrol car until assistance arrived.  When a second officer arrived, he observed crack cocaine on the front seat of D’s car. 

·       People v Mills (KA 09-00594) – The lower court properly denied D’s suppression motion.  A police officer observed D’s vehicle at 2:30 a.m. parked on the street with the engine running, in an area known for drug activity.  A check of the license plate showed that the car was registered to a parolee.  The officer thus had a “credible, objective reason not necessarily indicative of criminality” to approach the vehicle and request information.  Upon approaching the vehicle, the officer observed baggies of marijuana in plain view.

·        People v Scott (KA 10-02161) – D was convicted of burglary, attempted murder, and arson.  The lower court properly denied D’s motion to suppress evidence seized by a parole officer.  The parole officer was assisting two police officers trying to locate D.  When they came upon D, the parole officer smelled alcohol on his breath.  The officer knew that one of the conditions of D’s parole was to refrain from consuming alcohol, and the officer was acting within his duties as a parole officer to take a saliva and breath sample for alcohol and drug testing.  The search by the parole officer, with the assistance of the police officer, was therefore in furtherance of parole purposes.  The trial court also did not abuse its discretion in refusing to allow D to introduce evidence of a third party’s involvement in the crime.  While such evidence may be admissible, “there must be such proof of connection with [the crime], such a train of facts or circumstances as tend clearly to point out [someone] besides [D] as the guilty party.”  Remote acts that are disconnected with the criminal activity cannot be proved for such a purpose.  Here, there was a lack of evidence supporting D’s theory that a third person was involved in the crime, and evidence that a third party had a motive to harm one of the residents of an apartment building was irrelevant and likely to cause undue prejudice and confusion.

·        People v Smith (KA 09-02653) – 4AD concludes that the lower court erred by failing to grant D’s motion to suppress DNA evidence.  The trial court granted the prosecution’s first motion to obtain a buccal swab of D’s saliva.  The order was sought by order to show cause, and D did not appear on the return date of the order.  The swab was obtained but was sent to the wrong lab and was compromised.  The prosecution then sought a second order by letter.  D was not given notice of the second application, nor was he served with the second order.  Police then approached D on the street, handcuffed him, and brought him to the station.  When D refused to open his mouth so that police could obtain a swab, police forced him to do so by applying a taser to D’s skin.

In an opinion by J. Peradotto, 4AD finds that D was denied due process of law because he was not given notice of the second order, and that his Fourth Amendment rights were violated when the police forced him to open his mouth by using a taser.  First, where there are no exigencies, the prosecution’s motion to obtain a defendant’s DNA must be made on notice to the defendant.  Although D did not appear on the return date of the first motion, his failure to do so did not constitute a waiver of his right to notice of the second request.  Second, the use of the taser to force D to comply was objectively unreasonable under the Fourth Amendment (see Graham v Connor, 490 US 386).  Although D’s crimes were serious, the record showed that D was not a threat to the officers or himself, and he did not try to flee from the officers.  In addition, D only refused to open his mouth for about 10 to 15 minutes before police decided to utilize the taser.  4AD notes that there were no exigent circumstances that warranted the use of the taser, as opposed to some less intrusive method.  DNA evidence, notably, unlike evidence of intoxication, does not degrade over time, nor is it subject to alteration.  4AD further notes that there were reasonable alternatives to using the taser, such as arresting D for contempt and seeking court intervention.

J. Scudder dissented, contending that notice of the initial request by the prosecution was sufficient because the second application was nothing more than a duplicate, and the use of the taser was not objectively unreasonable because police placed D on the floor so that he would not fall when tasered, and D was tasered for a short duration.

·    People v Tolliver (KA 10-01061) – D was convicted of murder and criminal possession of a weapon.  D was not deprived of a fair trial based on the use of his nicknames “Crim” and “Criminal” in the indictment and by prosecution witnesses at trial.  The jury was instructed that the indictment was not evidence of the accusations against D.  Because the prosecution’s witnesses knew D only by those nicknames, it was proper for the prosecutor to elicit the nicknames for identification purposes.  And, the trial court instructed the jury that the nicknames were relevant only to establish D’s identity.

·        People v White (KA 11-00140) – D was convicted of third degree rape.  The incident was alleged to have occurred on October 10, 2005.  He was arrested on August 20, 2008, and indicted on February 19, 2009.  The trial court did not err in denying D’s motion to dismiss the indictment pursuant to CPL 30.30 (1) (a).  The prosecution announced ready for trial in open court on February 19, 2009, within the six-month period.  Although D was not arraigned until March 6, 2009, that delay was attributable solely to the court, and was therefore not charged to the prosecution.  The prosecution complied with its obligation to notify D of its readiness for trial by giving D prompt written notice.  Because D was given notice, it was of no moment that D’s attorney was not present in court when the prosecution announced ready, and that the written notice was sent to the wrong attorney.  4AD holds the case and remits to the trial court for a hearing to determine whether defense counsel was ineffective for failing to move to dismiss the indictment based on constitutional speedy trial and due process grounds.

Family Law Cases:

·        Matter of Cleophus B. (CAF 10-02163) – 4AD previously affirmed a decision dismissing a neglect petition against the father of the subject child.  Family Court had adjudicated the child to be neglected by the mother.  The father then moved to vacate the order placing the child with DSS.  The court denied the motion and held a hearing to determine whether extraordinary circumstances existed, which would warrant continued placement with DSS.  Family Court found that extraordinary circumstances did not exist and placed the child with the father, but subjected him to supervision by DSS.  The father failed to comply with drug testing.  4AD initially determined that the Family Court properly held a hearing to determine whether the father was entitled to custody, because the child had been in foster care for nine-months prior to the father’s motion.  4AD then rejected the father’s argument that the Family Court was without jurisdiction to place him under DSS’s supervision because it had dismissed the neglect petition against him.  Under FCA § 1054 (a), if the Family Court releases a child to the custody of a person who had custody when the neglect petition was filed or was otherwise responsible for the child’s care at that time, that person can be subjected to supervision.  It did not matter that a neglect adjudication was not entered against the father.

·        Matter of DiPaolo v Avery (CAF 11-01012) – 4AD finds that the Family Court erred by sua sponte dismissing the mother’s custody modification petition.  The petition alleged that modification was warranted because the mother and her new husband have completed housing and have a stable home.  And, the bill of particulars further added that the father was not involved in the children’s schooling and refused to obtain counseling for the children’s adjustment and coping issues.  These allegations show a sufficient change of circumstances to warrant a hearing.  4AD thus reinstated the petition and remitted the matter to a different Family Court judge.

·        Matter of Ilona H. (CAF 10-02262) – 4AD reverses Family Court’s decision determining that the father neglected the subject child.  4AD first explains that while exposure of a child to domestic violence may be the basis for a neglect finding, such exposure is not presumptively neglectful.  Not every child exposed to domestic violence is at risk of impairment.  The only evidence here was that the father struck the mother on one occasion when the child was eight-months-old, and the father testified that the incident occurred outside the child’s presence.  That evidence was insufficient to show by a preponderance of the evidence that the child’s physical, mental, or emotional condition had been placed in danger as a result of the father’s conduct.