Stats & Case Summaries - Fourth Department Decisions Released on April 20, 2012

 Criminal Case Decisions:

·        People v Blair (KA 08-00865) – Lower court did not improperly question D when he testified on his own behalf.  The court properly acted within its power to encourage clarity in the development of proof, and did not give any impression about its own view of the credibility of the witness’s testimony or the merits of any issue in the case.

·        People v Capers (KA 09-01169) – The lower court erred by permitting a police investigator to testify that D refused to answer certain questions and that the interview was subsequently terminated.  The investigator’s testimony implied that D had invoked his right to remain silent.  A defendant’s silence or his decision to invoke his right against self-incrimination during police interrogation cannot be used against him on the prosecution’s direct case.  The error, however, was harmless.

·        People v Colucci (KA 11-01157) – D prematurely challenged his waiver of the right to challenge his judgment of conviction by means of a CPL 330 or 440 motion, or by a motion for a writ of error coram nobis.  NY courts may decide only matters that are presently justiciable.  To be justiciable, a controversy must “involve present, rather than hypothetical, contingent or remote, prejudice” to a party.  Here, D’s contention sought merely an advisory opinion.

·        People v Culver (KA 10-02425) – D contended that his plea should be vacated because he was deprived of his right to effective assistance of counsel.  4AD rejected D’s contention that the plea was not knowing, voluntary, and intelligent, because defense counsel misinformed him regarding his possible sentencing exposure.  While counsel’s bad advice regarding a defendant’s sentencing exposure is a factor to be considered in determining whether a plea was valid, that advice alone is not dispositive.  Other factors, such as the nature and terms of the agreement, the reasonableness of the bargain, and the age and experienced of the accused, must also be considered.  Here, 4AD finds that considering all the relevant factors, D received meaningful representation.

·        People v Jenkins (KA 11-00288) – D pleaded guilty to felony DWI and first degree aggravated unlicensed operation of a motor vehicle.  At the time of the plea, the lower court advised D that it could sentence him to a term of up to 2 to 4 years in prison or to probation.  The court did not, however, indicate that it was required to impose either a fine, or a term of incarceration, or both.  At sentencing, the court imposed both a fine and probation on each count.  The court’s failure to properly advise D of the direct consequences of his plea required vacatur of the plea.

·     People v Johnson (KA 06-02304) - The evidence was legally sufficient to convict D as an accomplice to the crime of criminal possession of a weapon in the 3rd degree.  D was driving a moped with his codefendant as a passenger, and stopped the moped just prior to the shooting.  It may be inferred that  D was aware that the codefendant had a loaded firearm and that he intentionally aided in that possession by stopping to allow the codefendant to line up his target and fire.  D also sped away from the scene, swerving past a police officer, drove onto a sidewalk, cut through a parking lot, and tried to maneuver around the police, ignoring their efforts to stop him.

      The Crawford right of confrontation does not apply at sentencing proceedings.

·      People v Jones (KA 11-01061) - The waiver of the right to appeal is invalid, as the brief reference to this right during the plea colloquy was insufficient to establish that the waiver was a knowing and voluntary choice.  D's challenges on appeal are therefore not encompassed by a valid waiver, however, they are without merit.  The conviction is affirmed.

·    People v LaTorre (KA 10-01872) - The issue of legal sufficiency is preserved with regard to identification, but not with regard to intent, because only the former was addressed in the defense attorney's motion for a trial order of dismissal.  The evidence of identification in this case, though largely circumstantial, is legally sufficient to support a conviction.  Reversal is only warranted where the testimony is incredible and unbelievable, e.g.- manifestly untrue, physically impossible, contrary to experience, or self contradictory.

 ·      People v Lucas (KA 10-00201) - In a conviction for murder in the 2nd degree, the evidence was legally sufficient to establish the defendant's intent to kill.  Intent to kill may be inferred from D's conduct, as well as the circumstances surrounding the crime.  D had quarreled with the victim immediately before the shooting.  The shooting occurred while D was facing the victim and, with the encouragement of a bystander, D pointed the gun toward the victim from a few feet away and fired the weapon. 

·       People v Mohamed (KA 11-01413) - In a second degree assault trial, the only issue was the identity of the second assailant (the first assailant was D's brother).  The victim was not able to identify the second assailant.  The testimony of an accomplice was that D was the second assailant.  She claimed that D and his brother had been involved in a bar fight with the victim, and then asked her to invite the victim to her house.  When the victim arrived, D and his brother assaulted him.  4AD found that the accomplice's testimony was sufficiently corroborated by numerous prosecution witnesses who testified about the bar fight and by telephone records that establish that the accomplice contacted the victim prior to the assault.  Corroborative evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth.

·      People v Morris (KA 10-02124) – D’s contention that the trial court abused its discretion in denying his motion to withdraw his guilty plea survives his waiver of the right to appeal, however, it is without merit.  The court’s refusal will only constitute an abuse of discretion if there is some evidence of innocence, fraud, or mistake in inducing the plea.  Here, despite D’s claim that he was misinformed with respect to the negotiated sentence, the court properly informed D that the sentence was required to run consecutively to his prior undischarged sentence, and that any jail time credit would be determined by DOCS.

       D made 2 requests for substitution of counsel.  D’s first request was set forth in a brief notation in counsel’s “status report” to the court, without any reasons provided, and was not repeated at subsequent appearances.  4AD found that D abandoned that request when he decided to plead guilty while still being represented by the same attorney.  D’s second request was made during sentencing.  To the extent that the voluntariness of the plea is implicated (and thus the contention survives the plea and waiver of appeal), 4AD finds that the court made sufficient inquiry into the request.  The court allowed D to express his objections, and then reasonably concluded that they were without merit.

 ·   People v Oberlander (KA 10-00038) – 4AD reversed a conviction of offering a false instrument for filing in the first degree.  The conviction arose from D’s alleged failure to report on an application for food stamp benefits that the father one of her children was living in the household, with the intent to defraud DSS.  While the evidence is legally sufficient, the verdict is against the weight of the evidence, and the indictment is dismissed.

      It is undisputed that D advised DSS of her intent to move in with the father in January 2006.  D’s coworker and the coworker’s boyfriend both testified that the father lived with D at her previous residence as well.  But D, the father, and D’s mother all testified that the father did not live with D until January 2006.  DSS records indicate that the father had a different address prior to that date.  4AD found that the testimony of the coworker and her boyfriend was not credible, while the testimony of D and her mother was, and concluded that the jury did not properly weigh the relative probative force of the conflicting testimony and the relative strength of the conflicting inferences that may be drawn from the testimony.

      The documentary evidence (the rental agreement for the new residence) is inconclusive with respect to when the father signed.  The landlord testified that he did not recall when, and by whom the agreement was returned to him.  D testified that the father was not present when she signed on October 14, 2005, but he later signed the copy that was retained by the landlord (D submitted into evidence the agreement which was not signed by the father, which she retained).  Therefore, with respect to whether the rental agreement established that the father lived with D before January 2006, 4AD concluded that the jury failed to give the evidence the weight it should be accorded.

·   People v Williams (KA 09-00297) - Conviction for assault in the second degree is upheld where D repeatedly punched a 66-year-old defenseless victim in the face, while he was standing and after he had been knocked to the ground.  Victim suffered a serious physical injury to his eye, including permanent loss of vision.  D is presumed to intend the natural and probable consequences of his actions, and a serious physical injury was a natural and probable consequence of his actions here.

Family Case Decisions:

·        Matter of Fontaine v Fontaine (CAF 11-02558) – 4AD reversed the Family Court’s order, which directed that the father’s visitation continue to be supervised, because the court attorney referee failed to set forth the facts essential to her decision in the order.  The record was insufficient to allow 4AD to make its own findings of fact.  4AD thus remitted the matter for a new hearing on the petition and a new Lincoln hearing.  4AD also noted that the lower court properly permitted the Attorney for the Child to approve visitation supervisors.  That decision did not improperly delegate the determination of an issue involving the best interests of the child, such as determining when unsupervised visitation may resume.

·        Matter of Barlow v Smith (CAF 11-00798) – 4AD affirmed the Family Court’s denial of the mother’s petition seeking permission to relocate from Erie County to Detroit, Michigan.  The court properly applied the Tropea v Tropea factors and found that relocation would not be in the children’s best interest.  The mother failed to demonstrate that her children’s and her own life would be enhanced economically, educationally or emotionally by the relocation.  In addition, the relationship between the father and the children would be adversely affected by the relocation because of the distance between Erie County and Detroit, and the mother failed to establish that there was a visitation arrangement conducive to maintaining a relationship between the children and their father.  The court also noted an additional factor—i.e., that the mother failed to show that she made any attempt to secure mental health services in Detroit.

·         Matter of Leonardo v Leonardo (CAF 10-02110) - 4AD affirmed an order from the family court, directing the father to pay child support.  Despite the father's contention that the support magistrate was lacking jurisdiction, the magistrate properly considered the current custodial arrangement in determining which parent was the custodial parent for purposes of child support.  The family court also properly imputed income to the father, because, despite his allegation that he was no longer employed full time, he failed to demonstrate that he was unable to earn the same salary that he was earning at the time of the divorce. 

    The father did not have a right to counsel in a child support modification proceeding, and his contention of ineffective assistance of counsel may not be considered absent extraordinary circumstances, which are not present here.

·       Matter of Marquardt v Marquardt (CAF 11-00770) - 4AD affirmed the Family Court's finding that respondent committed acts constituting the family offense of disorderly conduct.  At the beginning of the hearing, respondent requested that the Court limit the proof to events that occurred within 2 years prior to the filing of the petition.  Respondent therefore waived his contentions that he was denied due process based on the Court's consideration of events that occurred during that time period and that the proceeding is barred by laches or the statute of limitation.

·      Matter of Leann S. and Michael S. (CAF 10-00110) - The Family Court's finding of sexual abuse is supported by a preponderance of the evidence.  Out of court statements of the daughter may form a basis for the finding, as long as they are sufficiently corroborated.  Here, they were corroborated by testimony of an expert, who found the daughter's consistent accounts of the abuse to be reliable and parallel those normally made by abuse victims.  The record also supports the determination that the father derivatively neglected his son.  The sexual abuse of the daughter demonstrated fundamental flaws in his understanding of the duties of parenthood.

·      Matter of Triplett v Scott (CAF 11-01102) - 4AD modified an order granting custody to the mother by vacating statements that the order was entered upon the default of the father and that the father failed to appear.  The Family Court repeatedly stated that the father was not in default, and where the order and decision conflict, the decision controls.  Further, the father was represented by counsel, and when a party fails to appear, but is represented by counsel, the order is not entered upon default and appeal is not precluded.

      The father's contentions are without merit, however.  The court did not abuse its discretion by conducting the hearing in his absence.  He appeared by counsel, had notice of the hearing, and chose not to attend.  The court's determination that it was in the best interests of the child to award sole custody to the mother has a sound and substantial basis in the record.