Stats & Case Summaries - Fourth Department Decisions Released on April 27, 2012

Criminal Case Summaries:

·        People v Addison (KA 10-02438) – D contended that the evidence was legally insufficient to establish criminal mischief in the third degree.  The evidence showed that D shoveled substantial amounts of snow and large chunks of ice onto a neighbor’s car, causing a crack in the windshield, which caused more than $250 to repair.  D did not dispute that he engaged in that conduct, but argued that he did not do so with intent to cause damage, as required under Penal Law § 145.05 (2).  4AD rejected this argument and noted that a defendant is presumed to have intended the probable and natural consequences of his conduct.  Here, a cracked windshield is the natural and probable consequence of heaving large chunks of ice onto a car.

·        People v Baker (KA 10-01978) – The lower court erred in sentencing D to consecutive terms of imprisonment.  D was convicted of three counts of third degree criminal possession of a weapon.  One count involved a rifle, and two counts involved knives.  D possessed all three weapons on one date with the intent to use them unlawfully against two siblings.  Because D possessed the weapons at the same place and time, with the intent to use them against the same victims, the offenses arose from the same act and concurrent sentences should have been imposed.  4AD thus modified the judgment by directing that all the sentences shall run concurrently.

·        People v Cipollina (KA 10-01052) – D contended that his conviction of second degree assault was based on legally insufficient evidence.  Specifically, he claimed the evidence was insufficient to show that he caused injuries to a police officer who was struck by another patrol car arriving on the scene after D abandoned his vehicle following a high-speed chase and while the officer was pursuing D on foot.  4AD concludes that where flight naturally induces an officer to pursue a defendant, and the officer is injured while pursuing the defendant, the causation element of the crime will be satisfied.  The injury need only be reasonably foreseeable, and liability will still attach if the defendant’s conduct is not the sole cause of the injury, so long as the defendant’s actions are a sufficiently direct cause.

·        People v Coble (KA 10-01481) – 4AD reverses D’s conviction of second degree burglary.  D was convicted of that charge and second degree robbery.  The lower court found two co-defendant’s guilty of second degree burglary, which was a lesser included offense of the first degree burglary count in the indictment.  The court, however, failed to dispose of that count with respect to defendant.  It nonetheless sentenced D on that charge.  On appeal, the People conceded that the lower court’s failure to dispose of that count constituted a verdict of not guilty pursuant to CPL 350.10 (5).

D also argued that the testimony of one of the complainants should have been precluded because she violated the court’s order excluding certain witnesses from observing the trial.  4AD explained that issuing an exclusion order was in the court’s discretion, and a witness’s violation of that order does not disqualify her from testifying.  The sanctions imposed on a witness for violating an exclusion order are committed to the court’s sound discretion.  While a witness may be precluded from testifying, that sanction is the most drastic available and should be used only in the most egregious circumstances.  Here, the court did not abuse its discretion, especially because the witness was cross-examined about her violation of the order, and the court was permitted to consider the violation in assessing credibility.

·        People v Drake (KA 10-01259) – D was retried on charges of second degree murder after the Second Circuit Court of Appeals granted a conditional writ of habeas corpus (Drake v Portuondo, 553 F3d 230 [2d Cir 2009]).  The charges stemmed from an incident in 1981, when D was 17-years-old, and went to shoot his rifle at abandoned cars.  While shooting at one of the cars, D killed two teenagers who were inside.  D told police he did not see the two victims before he started shooting, and that he then attempted to conceal the crime by moving the car and hiding the bodies in the trunk. 

4AD finds that it was reversible error for the court to admit evidence of an uncharged crime—i.e., D’s alleged postmortem sexual assault of the victim.  The evidence was admitted to prove D’s intent to kill.  Because D presented expert testimony that the victim’s body was not sexually assaulted, there was a trial within a trial on the issue of whether the uncharged crime had actually been committed.  4AD concludes that the uncharged crime evidence was not directly relevant to D’s intent.  4AD further finds that, even assuming the evidence was relevant, its prejudicial effect substantially outweighed any probative value.  Given the heinous nature of the uncharged crime, and the attenuated nature of its relevance, the lower court abused its discretion in determining it was more probative than prejudicial.

4AD also finds an additional basis for reversal in D’s pro se supplemental brief, because the lower court failed to apprise counsel of part of a jury note asking for advice if the jury could not reach a unanimous verdict, and further failed to respond to the question.  That mode of proceedings error also required reversal.

·        People v Hicks (KA 08-01991) – The lower court erred when it precluded a defense witness from testifying about D’s presence and activity about 1 hour before the crime.  That testimony would have contradicted the victim’s version of events leading up to the crime.  In addition, while the lower court did not abuse its discretion in denying D’s request to file a late alibi notice, the testimony in question did not constitute alibi testimony under CPL 250.20 (1), which defines alibi testimony as that which establishes D’s whereabouts “at the time of the commission of the crime.”  The witness’s testimony would not have accounted for D’s presence at the time of the crime or shortly thereafter.  4AD also noted that an alibi notice need not be given just because a witness’s testimony might be circumstantial alibi evidence.  The court’s preclusion of the witness’s testimony thus violated D’s constitutional right to call a witness.

·        People v Johnson (KA 08-01990) – 4AD rejected D’s claim that the warrantless search of D’s car was illegal.  D’s parole officer placed D on a list of 15 other parolees who would be searched by a task force composed of parole and several police agencies.  His reason for doing so was that D had just moved into a new residence that the officer had not yet visited.  D had previously consented to searches of his residence, property and person.  The officer arrived at D’s house shortly before 9 p.m.  D arrived in a borrowed car, locked the door, and accompanied the officers inside.  While D’s residence was being searched, another parole officer took the car keys and searched the car, finding cocaine in a beverage container. 

4AD first concluded that the lower court erred in determining that D did not have standing to challenge the search of the car.  4AD noted that the People did not dispute standing, but that in any event, D had a possessory interest in the car even though he did not own it.  Nonetheless, the search of the car was valid.  An individual’s status as a parolee is a relevant factor in determining whether a search is reasonable.  Here, the search was rationally and reasonably related to the parole officer’s duty and was lawful.  The participation of other police agencies did not render it illegal.  D’s parole officer alone made the decision to include D in the list of parolees to be searched.  While police had received a tip that D was in possession of a gun, that tip was received 2 months before the search and the lower court determined it played no role in the search.  The court’s finding is entitled to deference.

·        People v Skinner (KA 10-01815) – D was convicted of second degree assault (PL § 120.05 [7]), based on an incident during which he injured an employee of Industry Secure Facility, where D was serving a sentence imposed upon him as a juvenile offender.  Before and during trial, D moved to dismiss the charge on the ground that he did not assault an individual “while confined in a correctional facility” as defined in Correction Law § 40 (3).  4AD agreed that D’s conviction was not supported by legally sufficient evidence and modified the conviction to third degree assault.  Although Correction Law § 40 (3) provides that “correctional facility” includes “a secure facility operated by the state division of youth”, that part of the definition is prefaced by “for the purpose of this article only”—i.e., Article 3 of the Correction Law.  Therefore, that part of the definition does not apply to PL § 120.05 (7).  4AD also pointed to article 205 of the Penal Law, which includes a broader definition of “detention facility.”  That definition includes a juvenile detention facility, and, the Legislature could have made that broader definition applicable to PL § 120.05 (7).  Instead it chose the more narrow definition in Correction Law § 40 (3).

Family Law Case Summaries 

·        Matter of Chautauqua Cty Dept of Social Services v Rita M.S. (CAF 11-02254) – In about 2008, the Appellants, father and stepmother, were arrested and charged in New Mexico with felony child abuse against the children.  A magistrate in that state ordered that they have no contact with the children.  The Appellants then directed that the children should stay with their aunt in New York.  In 2010, the Department of Social Services brought a petition seeking child support from Appellants.  A default order was entered.  The Appellants later moved to vacate the default order on the grounds that the court lacked personal jurisdiction.  The court denied the Appellants’ motion, finding it had jurisdiction under Family Court Act § 580-201 (5).

4AD finds that the lower court properly found that it had personal jurisdiction under FCA § 580-201 (5).  That section provides that an NY court has personal jurisdiction over a nonresident in a support proceeding if, among other things, the children reside in NY as a result of the acts or directives of the nonresident.  Here, the Appellants directed that their children live with their aunt in NY.  They gave the aunt powers of attorney to manage certain affairs of the children, and the aunt executed a contract with the New Mexico child protective agency, whereby she agreed to provide for the children’s needs.  The contract also provided that the aunt was to contact the Appellants if she needed financial assistance.

4AD further rejected the Appellants contention that the court’s assertion of personal jurisdiction in this case violated due process.  For the reasons stated above, the Appellants should have reasonably anticipated being haled into court in NY.  4AD distinguishes the U.S. Supreme Court’s decision in Kulko v Superior Ct. of California (436 US 84).  There, the father merely acquiesced in his daughter’s decision to live with her mother in California.  Here, the Appellants directed that their children live in NY by expressing their desire that they live with their aunt rather than in foster care, and by executing the necessary documents to facilitate their transfer.  Moreover, by sending their children to live with their aunt without providing financial assistance, the Appellants purposefully availed themselves of the privilege of conducting activities within NY.  This was especially true since the safety contract stated that the Appellants were still legally responsible for the children’s well-being.

·        Matter of Mathewson v Sessler (CAF 11-01896) – 4AD modified the Family Court’s order, which modified a prior custody arrangement and gave the parties joint legal custody, and increased the father’s visitation.  4AD finds that the father failed to demonstrate a sufficient change in circumstances warranting a change in the existing custody arrangement.  The father’s new job, which gave him more free time with the children, and his purchase of a new home did not constitute the requisite change in circumstances.  4AD further found that the Family Court abused its discretion in setting a revised visitation schedule.  Although the father did not demonstrate a change in circumstances, the mother conceded that an increase in visitation from that allowed in the prior order was in the best interests of the children.  4AD thus invoked its authority to increase or decrease visitation and set forth a visitation schedule that reflected a balance between the excessive visitation granted by the Family Court and the limited prior visitation schedule.

·        Matter of McDermott v Bale (CAF 11-02154) – In this custody proceeding, the Attorney for the Child appealed from a custody order that incorporated the terms of a written stipulation executed by the parties.  The Family Court approved the stipulation over the AFC’s objection.  4AD agreed with the AFC that he has a right to meaningful participation in the proceedings, however, that right does not give the AFC a “veto power” over an agreement reached by the parties.  Here, the AFC was given a full and fair opportunity to be heard, and the court, as well as the parties, gave credence to many of his suggestions, which were incorporated in the stipulation.