Criminal Case Summaries
June 8th
People
v Agarwal (KA 12-00141) – 4AD rejected D’s challenge to the upward
departure from his presumptive level one sex offender risk level to a level two,
because there was clear and convincing evidence of aggravating
factors not adequately taken into account by the risk assessment
instrument. D used the internet to
engage in sexually explicit conversations with an undercover police officer
posing as a 14 year old girl, instructed her to masturbate, provided her with
websites to educate her about sexual positions, communicated that he wanted to
engage in sexual activity with her, and exhibited a willingness to act on his
compulsions by arranging to meet with her and then arrive at the arranged
meeting with various items demonstrating his intent to engage in sexual
activity.
People
v Bigby (KA 11-01322) – D’s sentence is vacated and remitted back for
re-sentencing. After D pleaded guilty,
neither he nor his counsel were present at the time of sentence. Since sentencing is a critical stage of the
proceedings the right to counsel is implicated.
The defendant’s absence from sentencing does not waive his right to have
counsel present.
People
v Butler (KA 09-02374) – D’s absence from a pretrial conference did not
deprive him of the right to be present at a material stage of the criminal
proceeding. Where a proceeding involves
only questions of law or procedure, a defendant’s presence is not
required. D did not have a right to be
present at the conference because the legal discussion did not implicate his
peculiar factual knowledge or otherwise present the potential for his
meaningful participation.
People
v Carrasquillo (KA 10-01400) – D’s sentence is illegal, because although he
admitted to the prior conviction, the certificate of conviction does not
reflect that he was sentenced as a second felony drug offender. Sentence vacated, and remitted for the filing
of a predicate felony statement prior to re-sentencing.
People
v Clark (KA 10-02500) – D’s valid waiver of appeal did not encompass his
challenge to the severity of his sentence, because the court failed to advise D
of the potential periods of incarceration that could be imposed.
People
v Deponceau (KA 08-00634) - The court did not err in allowing D to proceed
to trial pro se. D had 4 attorneys
assigned to represent him. He sought to
have each one replaced. The court
properly denied D’s request for a fifth attorney, as D did not present
a good cause for substitution. D, who
was not totally unfamiliar with criminal procedure, so determinedly and
unequivocally insisted on rejecting counsel and proceeding pro se, the court
had no recourse put to permit him to. D’s
request was accompanied with a knowing, voluntary, and intelligent waiver of
the right to counsel.
Imposing consecutive sentences on each count of conspiracy 2nd
was not illegal. D agreed to the murder
of 2 separate individuals, and thus there are 2 separate and distinct
agreements to commit a felony, even if the same overt act is committed in
furtherance of each. While the statutory
elements of each count were identical, a consecutive sentence can still be
imposed if the DA can demonstrate that the acts or omissions were separate and
distinct acts.
People
v Gutierrez (KA 10-01794) – The court did not err in refusing to suppress D’s
statements to the police, as the record reflects that he was not given false
legal advice. And even assuming that the
police misled D, that deception did not create a substantial risk that D might
falsely incriminate himself, nor was it so fundamentally unfair to deny D due
process.
People
v Guzman (KA 11-00401) – In a SORA determination, the case summary may
constitute clear and convincing evidence of the facts and is sufficient to
support the court’s determination, where D does not dispute those facts. In the absence of evidence to the contrary,
the court correctly relied on the summary to assess points under the risk
factor for failure to accept responsibility and expulsion from treatment, and
the risk factor for improper conduct while confined.
People
v Holmes (KA 08-02353) – Court did not err by refusing to suppress the gun that
D discarded while fleeing from the police.
The police received a 911 call that 3 black males were engaging in
suspicious activity, in that they had emerged from behind the house of the
caller’s sister and entered a blue vehicle.
The officer arrived at the scene a few minutes later and observed D
drive away in the described vehicle with 2 other black males. When the officer turned to follow the vehicle
in his marked police car, it swerved out of the driving lane and
toward the curb. The passenger front
door opened, the vehicle struck the curb, and 2 passengers jumped out. The officer
activated his lights, and D jumped out of the vehicle. The officer pursued D on foot. The information provided by the caller,
together with D’s conduct in driving the vehicle into a curb, abandoning a
moving vehicle, and fleeing on foot in response to a marked police car,
provided the officer with reasonable suspicion to pursue D.
People
v Howington (KA 11-02514) – In this appeal by the DA, an order granting
suppression is affirmed. The police
officer’s testimony was that he detected the odor of unburned marihuana when he
approached the vehicle. The hearing
testimony established, however, that the only marihuana found in the vehicle
was in a closed plastic bag inside D’s pocket, and that D drove with the
windows open for several blocks prior to the stop. The trial court expressly stated that it did
not credit the testimony that the odor of raw marihuana was present. The court found that there was no probable
cause to arrest D for possession of marihuana, and the officer did not have the
right to search D incident to arrest.
4AD granted deference to the credibility determination of the court
below, as it was supported by the evidence.
People
v Huntsman (Appeal #1) (KA 08-02239) -4AD agrees that the evidence on the monetary value of the
items allegedly stolen and damaged is legally insufficient to support the conviction
of the crimes. For the grand larceny conviction,
the sole evidence concerning the value of the items was the testimony of the
complainant, who estimated the value of 2 family rings to be $1,500-$2,000 and
clothing and other unidentified items to be at least $3,500. But the police officer testified that the
complainant told him that the jewelry had sentimental, but no monetary value,
and the only other items missing were her jeans and panties. Conclusory statements and rough estimates of
value are not sufficient to establish the value of stolen items under Penal Law
155.20. The judgment is modified by
reducing grand larceny to petit larceny.
For the criminal contempt 1st conviction, the
only evidence that the damage to complainant’s residence exceeded the monetary
threshold required was the testimony of a police investigator, who stated that
based on his training and experience, the total amount of damage was probably
around $500. His general approximation
was insufficient to establish the amount of damage. Criminal contempt 1st is reduced
to criminal contempt 2nd.
The court erred in admitting D’s cell phone records in evidence. They were neither municipal nor medical
records, and thus not self-authenticaing under CPLR 4518 (c), and the records
were not so patently trustworthy to be self-authenticating. Because the DA otherwise failed to present a
foundation for the admission of the records, they should have been
excluded. The error was harmless,
however.
People
v Jimenez (KA 09-02644) – Order denying D’s application for resentencing
for drug convictions is reversed. The DA
conceded that the court erred in determining that D was ineligible for
resentencing on the ground that he had a prior “exclusion offense”, because the
court calculated the look back period of 10 years from the date of the
commission of the crime, rather than from the date that D filed the application
for resentencing.
People
v Long (KA 10-02077) – In a trial for criminal contempt and stalking, the
court did not err in its Molineux ruling.
D’s prior behavior towards the complainant was admissible to explain the
issuance of the order of protection, establish D’s motive and intent in the
commission of the crimes, and to establish complainant’s state of mind. The probative value outweighed the risk of
prejudice.
People
v McCray (KA 11-01022) – The court properly denied D’s motion to suppress his
statements to the police and evidence seized from his apt, determining that D’s
initial statements were the result of investigatory questioning, and he voluntarily
consented to the search. 4AD rejects the
contention that the police should have ceased questioning him, because they had
probable cause to arrest him. There is
no constitutional right to be arrested, and the police are not required to stop
investigating at the first indication that they may have probable cause for an
arrest. The totality of the circumstances
establishes that D not only consented, but cooperated with the search, by
tossing his keys to the officer. This
signified D’s consent and willingness to cooperate.
People
v Meden (KA 11-00975) - D’s sentence imposed upon a violation of probation
is illegal and cannot stand, despite the failure of either the defense or the
People to raise this issue, either in the court below or on appeal. D pleaded guilty to a Class E felony, and
though he had a prior conviction from 2007, there is no indication that he was
adjudicated a 2nd felony offender. D was
sentenced to a determinate term of 3 years, and 3 years post release
supervision. D faced an indeterminate
term of incarceration, with a minimum of 1-3 and a maximum of 1-4 years. As the sentence is illegal, it is vacated and
remitted for resentencing.
People
v Morgan (KA 07-01252) - The court did not err in refusing to suppress two
eyewitness IDs. Showing the witnesses a
photo array followed by a lineup was not unduly suggestive. In contrast to the repeated display of a
defendant’s photo in successive arrays until a positive ID is obtained, the
potential for irreparable misidentification is not manifest when the witness
views an array containing the defendant and the subsequently views the defendant
in person in a lineup. Here, the photo
array and lineup were separated by 8 hours and there are no other circumstances
indicating police suggestiveness. The circumstances
were not so suggestive as to create the substantial likelihood that defendant
would be misidentified
D was not denied effective assistance of counsel. Counsel did not concede that the DA met its
burden on summation, but rather chose a forthright though brief statement to
submit his client to the mercy and fair-mindedness of the jury, which does not
render him ineffective.
People
v Peck (KA 11-00376) – Despite the fact that tape-recorded conversations were
improperly admitted into evidence at the grand jury, as the DA failed to
establish an adequate foundation for their admission, this did not require
dismissal of the indictment. The
submission of inadmissible evidence to the grand jury will be deemed fatal only
when the remaining evidence is insufficient to sustain the indictment. Here, the remaining evidence was legally
sufficient.
The defendant’s contention that the court erred in allowing
a deliberating juror to separate from the other jurors to make a phone call
will not be reviewed in the absence of an objection. Violations of the sequestration provision of
CPL 310.10 are not mode of proceedings errors, as it does not entail a part of
the process essential to the form and conduct of the actual trial.
People
v Salim (KA 10-01173) – Conviction of harassment in the 2nd degree and
assault in the 3rd degree is reversed, and a new trial granted. The court abused its discretion in admitting rebuttal
evidence concerning defendant’s relationship with a woman other than his
wife. D’s extramarital relationship was
not a material issue in the case, and the testimony served solely to attack D’s
credibility on a collateral issue. The
general rule concerning the impeachment of witnesses with respect to collateral
matters is that the cross-examiner is bound by the answers of the witness to
questions concerning collateral matters inquired into solely to affect
credibility.
People
v Santiago (KA 08-01881)- Judgment is modified by reversing one of the two
convictions for sexual abuse 1st and dismissing that count. The
indictment was multiplicitous. When the
evidence shows a single uninterrupted attack, where the attacker gropes
several parts of V’s body, the attacker may be charged with only one count of
sexual abuse.
People
v Schrier (KA 11-02547) – There was legally sufficient evidence of unlawful
surveillance 2nd. D concedes
that he videotaped V in her bathroom without her knowledge or consent, but
contends that the DA failed to establish the 3 remaining elements of the
crime. 4AD disagrees. The court was entitled to infer from the
evidence that D made the recording for his own amusement or entertainment and
that he intentionally used an imaging device to surreptitiously record V. D taped V in the early morning hours,
obscured himself and his compact camera, and initially denied that the
recording existed when questioned by police.
The court was also entitled to infer that the recording was made at a
place and time when a reasonable person would believe that she could fully
disrobe in privacy. V was recorded at
7:30am in the 2nd floor bathroom of her home. Her location was largely obscured from outside
view, except from a particular vantage point through a certain window that
could be obtained only be a person of above-average height, standing
immediately outside her door. And V was
only partially visible. V testified that
she did not believe that a person standing outside could see her because she
was unable to see the window while standing at the front door, and she didn’t
realize anyone could have the necessary angle.
People
v Scott (KA 11-00404) – SORA determination is reversed. The court erred in granting the DA’s request,
made for the first time at the hearing, to assess 20 additional points for risk
factors that were not included in the risk assessment instrument, and therefore
determine that D was a level 3, rather than level 2 risk. The DA failed to provide D with the required
10-day notice that they intended to seek a determination different from that
recommended, and the court failed to provide D with a meaningful opportunity to
respond to the proposed amendment. D was
denied his due process rights by the assessment of additional points.
People
v Soloman (KA 10-01960) – Conviction for assault 2nd and
criminal possession of a weapon 4th is reversed. The court erred in charging the jury that the
victim of the assault was justified to use physical force to the extent that he
reasonably believed such to be necessary to prevent or terminate what he
reasonably believed to be the commission of larceny. This justification charge was not responsive to
the evidence, because there is no view that V used such force, or would have
been justified in doing so. This
patently improper jury instruction was so prejudicial as to deny D a fair trial
and was not harmless.
People
v Spratley (KA 11-00486) - The court failed to rule on D’s renewed motion
to dismiss the indictment based on allegedly prejudicial conduct during the
grand jury proceeding. 4AD cannot deem
the court’s failure to rule on the motion as a denial thereof. Decision reserved and remitted for a decision
from the lower court on the motion.
Conviction for assault 2nd is not against the weight of the
evidence. D contends any injury to V was
not caused by a deadly weapon and such injury did not constitute a physical
injury within the meaning of Penal Law § 10.00 (9). A physical injury is either impairment of a
physical condition or substantial pain, which means more than slight or trivial
pain, but it need not be severe or intense.
A variety of factors are relevant in determining whether physical injury
has been established, including the injury viewed objectively, the victim’s
subjective description, and whether the victim sought medical treatment. V was injured by a bullet that grazed his
face, received several stitches, and testified that he was in excruciating pain
at the hospital, and that he still has pain, as well as difficulty eating and
talking. The hospital records
demonstrated that V described his pain as 0/10, and he was not prescribed any
pain meds. A finding that V’s injury was
not caused by a deadly weapon would have been unreasonable. While an acquittal based on lack of physical
injury would not have been unreasonable, it cannot be said that the court
failed to give the evidence the weight it should be accorded.
People v Stubbs
Appeal
#1 (KA 06-03122)
Appeal
#2 (KA 06-03701) – D is a predicate felon, but the DA failed to file a
predicate felony offender statement, so the court sentenced D as a first
violent felony offender. When it became
apparent at sentencing that D had a prior felony, the DA was required to file a
second felony offender statement, and the court had to sentence him as a second
felony offender, if appropriate. It is
illegal to sentence a known predicate felon as a first offender, and 4AD cannot
allow an illegal sentence to stand.
Sentences vacated and remitted for the filing of a predicate felony
offender statement.
People
v Walker (KA 09-00282) – Preservation is not required for D’s contention
that it was reversible error to question and then discharge a sworn juror in
the absence of D and defense counsel, because it is a mode of proceedings
error. The court’s in camera questioning
and discharge of a sworn juror deprived D of his constitutional right to
counsel. But, 4AD finds that D waived
his right to appellate review of the issue by consenting to the procedure
employed by the court, and waiver and preservation are separate concepts.
The court did not err in permitting the police impact
investigator to use the word “victim” during his testimony. He did not testify to the contents of his
interview with the complainant, nor did he give an opinion relating to her
credibility, or D’s guilt, thus he did not bolster complainant’s testimony or
otherwise usurp the jury’s role. In any
event, the court gave the jury an instruction, which they are presumed to have
followed.
People
v Wilson (KA 11-01163) - The court properly admitted evidence concerning the barring
notice issued to D, prohibiting him from entering mall property, as its probative
value exceeded its potential for prejudice.
The notice was relevant to establish that D knowingly entered the mall
unlawfully and was necessary background and narrative information. D failed to preserve his contention that a
limiting instruction should have been given after the evidence was admitted,
because he failed to ask for one. And
nevertheless, the court gave the instruction during the jury charge.
June 15th
· People
v Adams (KA 10-02355) - Case is held, decision is reserved, and the matter
is remitted to the lower court for further proceedings. Defendant contends that the pretrial
identification from a photo array should have been suppressed as fruit of an
illegal arrest. The court below
concluded that the procedure was not unduly suggestive, but failed to address
the legality of defendant's detention or arrest. CPL 470.15 (1) precludes an Appellate Court from reviewing an
issue that was not decided by the trial court.
4AD remits to the Supreme Court to determined whether the ID testimony
should have been suppressed as fruit of an illegal detention or arrest.
· People
v Barnes (KA 10-01241) - Convictions are reversed and a new trial
granted. The lower court erred by
ordering defendant to wear a stun belt and shackles at trial, without making
findings on the record concerning the necessity of the restraints. Although the court set forth a reasonable
explanation in response to a post trial motion by defendant, the court's post
hoc explanation does not suffice. The court
was required to have considered the relevant factors and made a sufficient
inquiry before making the finding that restraints were necessary. Even assuming that the error is harmless,
reversal is still required. The Court
of Appeals did not apply harmless error analysis in Buchanan and Cruz
with respect to the use of shackles and a stun belt.
· People
v Brown (KA 09-00589) - D's acquittal of rape in the first degree and
conviction of sexual abuse in the first degree are not factually
inconsistent. The jury was entitled to
infer from the evidence at trial that D forcibly committed an act of
penis-to-vagina contact that qualified as sexual contact, but that stopped short
of the penetration required for rape.
The court did not err in
permitting a witness to testify that he and other men reported to the police
that D had raped a female. That
testimony was not hearsay because it was received not for its truth, but for
the legitimate purpose of completing the narrative of events and explaining
police actions in subsequently tracking down D.
· People
v Carter (KA 11-00148) - 4AD finds that the sentence is illegal, as the
lower court directed that the sentence for criminal possession of a weapon run
consecutively to the two concurrent sentences for murder. When more than one sentence is imposed for 2
or more offenses committed through a single act or omission, the sentences must
run concurrently- the court has no discretion.
Here, there was no evidence of intent to use the weapon against another
apart from its use in the killing of the murder victim. Although the issue was not raised at the
lower court, or on appeal, 4AD cannot allow an illegal sentence to stand. Judgment is modified by directing that all
sentences shall run concurrently.
The evidence was legally
sufficient to establish D's guilt of two counts of murder in the second degree
and one count of criminal possession of a weapon in the third degree. There was evidence from which the jury could
have reasonably inferred that D and his accomplices shared a common purpose and
a collective objective, and that D either shot the victim, or shared in the
intention of the accomplices to do so.
The DA presented video evidence that D and others met in a mini-mart,
where D pantomimed the firing of a handgun, and shortly thereafter, the group
exited the mini-mart, D pulled his scarf over his face, and walked quickly in
the direction of the victim. There was
also testimony that the group of men, with D in the lead and firing a gun,
chased the victim down the street. The
victim's body was found the next morning, with his jewelry missing and his
pockets turned out. The Medical
Examiner testified that he died from a gunshot wound. 2 of D's accomplices sold the jewelry at a pawn shop. D told the police that he knew the other men
planned to rob the victim and that he went with them in case there was a
fight.
People
v Geroyianis (KA 10-02081) - Judgment modified in the interest of justice
by reducing the sentence to 16 to Life.
There was legally sufficient
evidence to support the conviction for burglary 2nd. Although there was no direct evidence of D's
guilt, the element of identity was established by a compelling chain of
circumstantial evidence that had no other reasonable explanation. D was the victim's next door neighbor. V was out of his apartment, and when he
returned, his laptop with a Harley Davidson sticker, computer accessories, DVD
player, and about 150 DVDs were missing.
D arrived at a friend’s house on the day of the burglary with a laptop
and over 100 DVDs, telling the friend that they were stolen. D peeled a Harley Davidson sticker from the
laptop, and the friend later gave the sticker to the police, and V identified
it. The DA's forensic serologist
testified that D could not be excluded as a contributor to the DNA profiles
found on the power strip into which the laptop had been plugged in V's apt.
But 4AD finds that there was
insufficient evidence for the convictions of grand larceny in the 3rd degree
and criminal possession of stolen property in the 3rd degree. The DA was required to establish that the
value of the stolen property exceeded $3,000.
The value is the market value at the time and place of the crime, or if
such cannot be satisfactorily ascertained, the cost of replacement of the
property within a reasonable time afterwards.
The victim must provide a basis of knowledge for his statement of value
before it can be accepted as legally sufficient evidence. Conclusory statements and rough estimates are
not sufficient. Evidence of the original
price, without more, will not satisfy the DA's burden.
V testified as to the amount that
he purchased the items for, and provided supporting bank statements. This was sufficient to establish the value of
the computer, as V purchased it 9 months prior, and it was unlikely that the
market value depreciated significantly.
But it was not sufficient for the value DVD player, given the lapse of
time between the purchase and theft of the DVD player, and the absence of any
testimony concerning its condition. V
testified that new DVDs cost approximately $20 each, but did not provide evidence
of the age or condition of the stolen DVDs, the market value of the DVDs at the
time of the theft, or the cost of replacing his DVD collection. For the remaining stolen items, V provided
only rough estimates of value, without setting forth any basis. Thus 4AD cannot conclude that the jury had a
reasonable basis for inferring, rather than speculating, that the value of the
property exceeded $3,000. But the
evidence is legally sufficient to established the lesser included offenses of
grand larceny in the 4th degree and criminal possession of stolen property in
the 4th degree. The judgment is modified
to those lesser convictions.
· People
v Hamilton (KA 10-01370) – D’s convictions of attempted murder and criminal
contempt are affirmed. 4AD rejects D's
claims that the court erred in allowing 3 witnesses to testify. A police investigator with extensive
training in crime scene reconstruction testified about possible bullet
trajectories. Where a police
investigator has sufficient practical experience, his lack of formal education
in ballistics and trajectories may not disqualify the testimony. An expert reconstruction witness testified
based on his specialized knowledge, and was helpful in aiding the jury to reach
its verdict. And a treating physician
of one of the victims testified that a projectile shot from a shotgun caused
the victim’s injuries. He has been
employed as a trauma surgeon since 1991, is board certified in critical care
and general surgery, and has treated sever hundred patients with gunshot
wounds. The court properly determined
that the physician had the requisite skill, training, education, knowledge, or
experience, to provide a reliable opinion.
People
v Kims (KA 11-00863) – Judgment is modified by reversing and granting a new
trial on counts 1 and 2 (criminal possession of a controlled substance 1st
and 3rd). The lower court
erred in charging the jury with the “room presumption” contained in Penal Law §
220.25 (2), which provides that the presence of a narcotic drug in open view in
a room, under circumstances evincing intent to sell the drug, is presumptive evidence
of knowing possession by each and every person is close proximity to such
controlled substance at the time such controlled substance was found.
4AD interprets the term “close
proximity” in the statute. The drafters
of the room presumption intended to address situations in which the police
execute a search warrant at a suspected drug factory, only to find drugs and
paraphernalia scattered about the room.
The occupants of the factories usually proclaim their innocence and
disclaim ownership of the materials, leaving the police uncertain as to whom to
arrest. It was also intended to include
persons who might hide in closets, bathrooms, etc, upon the appearance of the
police.
This situation was unlike the
scenario envisioned by the Legislature.
D walked out of the front of his apartment, entered his vehicle, and was
almost immediately apprehended by parole officers who were investigating whether
he resided at that location. Several
minutes later, parole and police officers entered D’s apartment to conduct a
warrantless protective search. They
found another person in the apartment and found a significant amount of
cocaine, which was seized. Based on
these facts, 4AD concludes that D was not in close proximity to the controlled
substance at the time it was found. The
court’s error in charging the presumption cannot be considered harmless, as
there is no way to discern whether the jury’s verdict was predicated on the
presumption, or on a finding of constructive possession.
4AD distinguishes this case from People v Alvarez (1st Dept). In Alvarez, the room presumption was charged
where the defendant jumped out of the window of the apt where the drugs were
found and was discovered injured in the backyard, attempting to climb a fence. In contrast, D was not in flight- he was
apprehended in the driveway, and the apt was occupied by another person. Given the distance in time and space here,
which was absent from Alvarez, 4AD disagrees with the dissent that it applies.
Dissent by Scudder: Disagrees
that the court erred in charging the jury with the room presumption. The cocaine and drug paraphernalia were
located in plain view in the kitchen of the apt rented by D. The police discovered the contraband
approximately 5 minutes after the parole officers observed D and another person
exit the front door of the apt. D’s
companion admitted that he had purchased drugs from D immediately before they
left. The 3rd person in the
apt, named Chino,
appeared to be asleep on the couch when the police entered. When D was detained in the driveway, he
yelled to bystanders to call Chino. The
address of D’s approved residence for parole purposes was different from the
address where the contraband was located, and there were not beds in the apt
where the contraband was located. These
facts support the conclusion that the apt was used as a drug factory operation,
and thus the court properly instructed the jury that it was permitted to
consider whether D was in knowing possession of the cocaine at the time it was
found.
Dissent believes 4AD should apply
the Alvarez reasoning to this
case. The cocaine was in open view in a
room under circumstances evincing an intent to unlawfully package other
otherwise prepare it for sale.
Approximately 5 minutes before the cocaine was found by the police, D
was observed leaving the apt that he rented, but may not have used as a
residence, in the company of a person who admitted that he had purchased
cocaine from D. Thus, the court properly
determined that the jury could find that D was in close proximity to the
cocaine when he was apprehended in his car in the driveway.
People
v Lee (Appeal #1) (KA 06-00060) – Judgment is reversed on the law, plea to
burglary 2nd is vacated, and the motion to suppress statements made
by D is granted. Statements made to the
arresting officer should have been suppressed because D was illegally detained
in violation of the 4th Amendment.
Police received a report by a
town justice at 6am of a suspect who was possibly stealing bikes. When police went to the justice’s home, he
told them that his newspaper delivery woman told him that she encountered a man
riding one bike, while pulling another one.
The woman described him as a black male wearing a dark hooded sweatshirt
and jeans. The police officer left to
search for the suspect. After driving
one block, the officer observed D, a black male wearing a dark hooded
sweatshirt and greenish colored jeans, emerging from a yard riding a bike. D rode the bike down the sidewalk. The officer pulled alongside of him and
called out for him to stop. D complied
after the second time the officer said it.
The officer got out of his car and approached D. The officer explained the reason for the stop
and told D that “after everything checks [out], you’ll be on your way.” The officer asked D a series of questions,
including his identity, where he lived, and what he was doing in the area. When asked where he got the bike, D said he
purchased it a week earlier from someone.
Another police officer arrived, and waited on the sidewalk with D while
the first officer went to several residences and asked people if their homes or
garages had been burglarized. 24 minutes
after the initial stop, the newspaper delivery woman arrived and ID’d D as the
person she had observed that morning. 15
minutes later, anoter person ID’d the bike that D was riding as his. D was placed under arrest, and indicted. When he was interrogated, he made inculpatory
statements. The lower court denied D’s
motion to suppress his statements, concluding that the information possessed by
the first officer was sufficient to support a founded suspicion that criminal
activity was afoot, justifying the limited intrusion upon D’s freedom of movement. At the point of the ID of D, the first
officer had reasonable suspicion, justifying temporary detention. When the person ID’d the bike, the police had
probable cause to arrest D.
4AD finds that the detention
violated the 4th amendment. A
founded suspicion that criminal activity was afoot justified a common-law
inquiry, a level 2 intrusion under DeBour. The officer was entitled to detain D
temporarily, only to the extent necessary to gain explanatory information, but
could not forcibly seize D. The length
of D’s detention here exceeded that allowed pursuant to a common law
inquiry. After being asked for identifying
information, D was held for 24 minutes while the officer searched for evidence
of a crime. Once the officer began that
process, D’s temporary seizure became an investigatory detention- a level 3
intrusion, which requires reasonable suspicion (which did not exist until D was
ID’d). The police may not arrest and
hold a suspect while they search for evidence sufficient to justify their
actions.
The majority notes that it would
reach the same conclusion even if the police did not canvass the neighborhood
until after the delivery woman
arrived, as suggested by the dissent.
Either way, the lower court specifically found that D was detained for
24 minutes before the woman arrived, and that detention was unlawful.
The majority disagrees with the
dissent’s conclusion that D was not detained.
The lower court specifically determined that there was a temporary
detention of D, and thus the court did not deny suppression on that ground, and
4AD may not reach it on appeal. Further,
the officer twice yelled at D to stop riding his bike, then told him he could
leave only after everything checks out, which is tantamount to telling D he
could not leave until things did check out.
D was then handed off to another officer, while the first investigated
further. D could not reasonably
disregard the police and go about his business.
The fact that D complied with the officer’s requests does not mean that
he was not detained. Submission to
authority or failure to argue with the police officer is not consent. Here, a reasonable person would have believed
that he was not free to leave.
Dissent by Peradotto: The dissent concludes that the court properly
refused to suppress the statements. The
Dissent disagrees with the majority’s conclusion that D was illegally detained
for 24 minutes. The facts do not support
that determination. The carrier came and
ID’d D only a few minutes after the officer stopped D, during the initial questioning,
and prior to checking the surrounding houses.
And then approximately 15 minutes elapsed before the other person came
to ID the bike.
But even assuming that the officer
checked the houses prior to the arrival of the newspaper carrier, the dissent
concludes that D was not subjected to a level 3 forcible detention. The entire encounter, which did not exceed 24
minutes, was on a public sidewalk, D was not handcuffed or restrained, no
officer displayed a weapon, the police did not act in an abusive or threatening
manner, there was no evidence the police physically blocked D or otherwise
interfered with his freedom of movement.
While he was on the sidewalk, D consumed a soda and snacks that he had
with him. D never asked to leave or
complained that he was treated with disrespect.
The officer testified that if D had said he wanted to leave, he would
have been allowed to. Although it may be
possible that D felt obliged to cooperate with the police to maintain his
façade of innocence, this subjective view does not require that the court find
him to have been in custody. A reasonable person would not have felt free to
leave after the first officer approached him.
The officer’s statement, unaccompanied by any showing of force or other
facts suggesting that D was not free to leave, did not elevate the level 2
encounter to a level 3 forcible detention.
People
v McCallum (KA 10-00667) – 4AD rejects D’s contention that the DA failed to
disprove his justification defense. The
evidence established that D administered a fatal beating to V without
justification. D’s statement to police
that he struck V only once was contradicted by the medical examiner’s testimony
that V died as the result of multiple blunt force injuries. D admitted that V did not strike or harm
him. Although D told police that V
threatened him with a hammer and screwdriver, no tools were found at the scene,
and there is no evidence that V was armed.
D was considerably larger than V.
The evidence established that a reasonable person in the same situation
would not have perceived that deadly force was necessary.
The court did not err by allowing
the People to present evidence of a prior altercation between D and V, as it
was relevant to provide background information concerning the prior
relationship between D and V and whether D’s use of deadly force was justified.
The court properly refused to
charge criminally negligent homicide as a lesser included offense. The court did charge the lesser included
offense of manslaughter 2nd, and the jury convicted of manslaughter
1st. Thus, D is foreclosed
from challenging the court’s denial of his request to charge the further lesser
included offense of criminally negligent homicide.
The verdict sheet did not contain
an improper annotation. The notation
that manslaughter 2nd was being submitted as a lesser included
offense of manslaughter 1st is neither statutory text nor an element
of the crimes charge, but rather language that simply distinguished between the
2 charges, which is permitted pursuant to CPL 310.20 (2).
4AD reject’s D’s pro se
contention that the court erred in denying his request for a jury charge
regarding the justifiable use of physical force. D’s entitlement to the charge turns on
whether there is a reasonable view of the evidence that he used only nondeadly
force. Because of the severity of V’s
injuries, there was no jury issue of whether D used deadly physical force.
People
v Mantor (KA 11-00103) - 4AD rejects the contention that statements D made
to the police should have been suppressed because he had invoked his right to
counsel earlier that morning on an unrelated charge. Under NY’s indelible right to counsel rule, a
defendant in custody in connection with a criminal matter for which he is represented
by counsel may not be interrogated in the absence of his attorney with respect
to that matter or an unrelated matter unless he waives the right to counsel in
the presence of his attorney. But D was
not in custody on the unrelated charge, and thus he did not have a derivative
right to counsel with respect to this arson charge.
People
v Marra (KA 11-02173) – Rape 1st judgment is modified by
reducing the sentence of imprisonment to 10 years with 5 years postrelease
supervision. In light of D’s age, lack
of a prior criminal record, and other mitigating circumstances, a sentence of
18 years followed by 15 years of postrelease supervision is unduly harsh and
severe.
4AD rejects the contention that
the People failed to prove the element of penetration beyond a reasonable
doubt. V testified that she fell asleep
at D’s inn, after consuming multiple glasses of wine, and when she awoke, D was
on top of her, and his penis was inside of her vagina. This testimony was corroborated by the fact
that D’s DNA was found on the area between V’s vagina and anus. V was crying and hysterical when examined by
medical personnel at the hospital shortly after. D told the police that he was drinking
alcohol and did not remember anything that happened. Toward the end of the interview, D asked
police “What if I can prove that [the victim] came on to me first,” suggesting
intercourse had taken place. 4AD
discerns no motive for V to make a false accusation against D, with whom she
was acquainted and had no apparent grudges.
While swabs taken from V’s vagina tested negative for D’s sperm, it is
not inconsistent with V’s claims of penetration, because V testified that D did
not ejaculate. And while D’s DNA was not
present, the forensic scientist testified that it is possible for a skin to
skin transfer of DNA, but not that it always happens.
The DA properly authenticated
pictures of V at the hospital. The nurse
who took the photographs testified that they accurately represented the
portions of V’s body depicted therein. The
photographs were also relevant, and their probative value outweighed their
potential for prejudice. The nurse
testified that some of the bruises and red marks looked fresh, while others
looked older. The photographs of the
fresh injuries were relevant to the issue of physical helplessness, under the
DA’s theory that, by undressing V and having sexual intercourse with her while
she was sleeping, D caused bruising and red marks to V’s body that would not
normally result from consensual intercourse.
Even assuming that the court erred in admitting photographs depicting
older bruises that may have predated the rape, the error is harmless. The injuries were relatively minor and not
inflammatory, and based on defense counsel’s cross-examination of the nurse, the
jury was well aware that the older bruises may have occurred before the rape.
People
v Motzer (KA 08-02238) - D’s claim that she was improperly adjudicated a
persistent felony offender because the court did not specifically ask her
whether she wanted to present any evidence on the question of her background
and criminal conduct is unpreserved and without merit. Although the court did not use the specific
phrase contained in CPL 400.20 (7), it asked defense counsel whether he wanted
to controvert any of the information in the PSR, to call any witnesses, and to
be heard on the application. And counsel
did controvert some of the information in the PSR and argued D should not be
adjudicated a persistent felony offender.
Thus the court in essence asked D whether she wished to present any
evidence and gave her an opportunity to do so.
· People v Norton (KA 08-02581) – In a case that went up to the Court of Appeals and was remitted back to 4AD for clarification on the basis of its decision, 4AD again affirms. The Court of Appeals concluded that Appellate courts may not summarily affirm the judgment, without indicating whether they relied on the waiver of appeal or determined that the sentencing claim lacked merit. 4AD determines that the waiver of appeal is not valid, but the sentence is not unduly harsh or severe. Although the lower court referred to a waiver at the time of the plea, no oral waiver was elicited from D. Neither the written waiver, nor the court’s brief mention of the waiver, distinguished the right to appeal from those rights automatically forfeited upon a plea of guilty.
People
v Riverso (KA 11-02001) – Order determining that D is a Level 2 sex
offender is affirmed. D was convicted of
disseminating indecent material to minors 1st, based on sending
sexually explicit text messages to three 16 year old girls who played on a soccer
team that he coached. 4AD rejects D’s
contention that the court erred in assessing 20 points under risk factor 7,
where points are assessed if the offender’s crimes arose in the context of a
professional or avocational relationship between the offender and the victim
and was an abuse of such relationship.
Avocational relationship is not defined in the law, but customarily
refers to a hobby or occupation pursued outside of a person’s regular
work. 4AD concludes that soccer league
coach falls within that category.
The court did
not improvidently exercise its discretion in denying D’s request for a downward
departure to Level 1 based upon expert testimony that he successfully completed
a court of sex offender treatment and his risk of reoffending is low. The risk level suggested by the RAI is merely
presumptive, and the SORA court has the discretion to impose a lower or higher
risk level if it concludes that the factors did not result in an appropriate
designation. 4AD rejects D’s contention
that successful completion of a treatment program is a mitigating factor not
otherwise taken into account by the RAI.
The RAI considers whether D has accepted responsibility for his sexual
misconduct by assessing points for failure to participate in treatment, and D
has received the benefit of 0 points for that factor. Despite the testimony of D’s expert, 4AD
concludes that he has a significant risk of reoffending, and downward departure
is not warranted. D transmitted sexually
explicit text messages to at least 3 girls on his soccer team, had sexual
contact with 2 of them in his vehicle, and attempted to engage in sexual
activity with 2 of them at a hotel during an out of town tournament.
Sconiers Dissents. The
dissent believes that 4AD should substitute its own discretion for that of the
SORA court, even absent an abuse of discretion, and would modify by granting
D’s request for a downward reduction to Level 1. While D’s presumptive risk level was properly
determined to be a Level 2 risk, there are mitigating
factors not otherwise adequately taken into account. A clinical psychologist who had provided
numerous sessions of sex offender treatment to D and administered multiple
psychological tests to him, as well as another psychologist who had meetings with D
for the purpose of conducting a clinical interview and sexual assessment,
both opined that D represented a low risk to reoffend. There was no allegation or evidence of forcible
compulsion by D. It is apparent that D’s
response to sex offender treatment was exceptional, and he was entitled to a
downward departure from his presumptive risk level.
People
v Spencer (KA 10-02035) - 4AD agrees with D’s contention that the court
erred in admitting the recording of a 911 call made by one of the victims after
the robbery. The call constitutes
hearsay and none of the exceptions apply.
It is not admissible as a present sense impression, because there is
nothing in the record establishing that V’s statement describes or explains an
event or condition and was made while he was perceiving the event or condition,
or immediately thereafter. It is not
clear when the call was made relative to when the robbery ended. The victim’s statements on the call include
references to other events, such as a week before, and the day before. The call is also not an excited utterance,
because the V’s statements indicate that he had time to reflect upon what had
occurred. As the 911 call was hearsay,
its admission constituted improper bolstering of the victim’s testimony. But the error is harmless because proof of
D’s guilt was overwhelming and there was no significant probability that the
jury would have acquitted him if the call had not been introduced.
· People
v Winebrenner (KA 05-00172) – The lower court did not err by failing to
order a 730 exam sua sponte. 4AD notes
that no preservation required to raise competency to stand trial on appeal, and
4AD disavows any statement from People v Bryant indicating that
preservation was required.
Family Law Case Summaries
June 8th
· Matter of Aubrey A. (CAF 11-00619) - Family court did not err by basing its TPR determination partly upon a psychological report prepared in 2007 in connection with a parental evaluation of the mother. The report concerned the mental fitness of the mother and was therefore relevant to the best interests of the child.
· Matter of Alberto C. (CAF 11-00433) - In a TPR, petitioner established by clear and convincing evidence that the mother could not care for her child by presenting testimony of a psychiatrist that respondent was presently and for the foreseeable future unable, by reason of her mental illness, to provide proper and adequate care for the child. The court did not err by refusing to hold a dispositional hearing, because there is no requirement that a separate dispositional hearing be held following a determination that a parent is unable to care for her child based on mental illness.
· Matter of Drevonne G. (CAF 11-00084) - Father’s rights were terminated on the ground of abandonment. 4AD rejects the father's contention that his rights could not be terminated while the mother retained her parental rights, as the children were not free for adoption. Although SSL § 384-b encourages placing children in permanent homes, it does not prohibit terminating parental rights when the children are not freed for adoption.
· Matter of Tiosha J. (CAF 11-00022) - Order terminating the parental rights of a mother to 3 of her children is affirmed. The mother cared for the oldest child for only 10 months, and the twins were removed at birth and never returned to her care. DSS proved by clear and convincing evidence that it made diligent efforts by tailoring services to her needs with respect to domestic violence, parenting, and substance abuse. DSS also established that the mother failed to plan for the future of the children. Although the mother completed a parenting and domestic violence program and regularly attended supervised weekly visitation with the children, she refused to attend other another domestic violence program after the children’s father assaulted her and damaged furniture and the interior of her home. The mother also refused to attend recommended drug treatment, failed to provide DSS access to her home, the condition of which resulted in the removal of her oldest child, and failed to verify her income. The court properly determined that TPR was in the best interests of the children. In the nearly 3 years from the date the petition was filed until the dispositional hearing, the mother failed to adequately address the issues that caused the removal of her children.
· Matter of Jelks (CAF 11-01599) - Order determining that mother willfully violated a child support order and directed that she be incarcerated if she didn’t pay certain arrears in 2 weeks is affirmed. The appeal is not moot merely because she paid the arrears and no further sanction was imposed. Enduring consequences potentially flow from an ordering determining that an individual willfully failed to obey a prior order. The mother’s contention lacks merit, however. There is a presumption that a respondent had sufficient means to support her children and the evidence that the mother failed to pay support as ordered constitutes prima facie evidence of a willful violation. As the evidence was sufficient to establish that the mother willfully violated the prior order, the burden was shifted back to her to submit some competent, credible evidence of her inability to make the required payments. The mother failed to present evidence establishing that she made reasonable efforts to obtain gainful employment to meet her support obligation.
· Matter of Samed S. (CAF 10-02034) - Father contends that the neglect/abuse petition should have been dismissed because it alleged sexual contact in July 2006, and he pleaded guilty to the sexual contact from December 2004. 4AD rejects his contention. The proof adduced at the hearing established that the sexual contact occurred in December 2004. Inasmuch as the proof does not conform to the allegations in the petition, the court may amend the allegations to conform to the proof, and the petition is not subject to dismissal.
· Matter of Consilio (CAF 11-00869) - An incarcerated mother petitioned to modify a stipulated order of custody and visitation by permitted overnight visitation at the prison. The Referee concluded that the mother failed to establish a sufficient change in circumstances, but nevertheless stated that it was not in the best interests of the child to have overnight visits at the correctional facility. 4AD finds that, even assuming the mother established a change in circumstances sufficient to warrant a best interests inquiry, there is no reason to disturb the Referee’s determination, as it was based on his credibility determination and supported by a sound and substantial basis in the record.
· Matter of Noah V.P. (CAF 11-00442) - In a TPR, 4AD finds that DSS made the requisite diligent efforts to reunite the father and his child. Father had custody of the other 3 children when the subject child was removed from the mother in July 2008. When the child was placed in foster care, DSS asked the father to take custody of him. The father declined, as he did not believe he was the father of the child. DSS encouraged him to file a paternity petition, but the father waited until February 2009, and he was adjudicated the father in July 2009. Caseworker met with the father twice a month and kept him updated, and invited him to service plan reviews, but he only attended one. The father expressed no desire to have custody and was in favor of the adoption plan. An agency which has tried diligently to reunite a parent with his child, but which is confronted by an uncooperative or indifferent parent, is deemed to have fulfilled its duty. DSS demonstrated that it made reasonable efforts to develop and encourage a relationship between the father and child.
DSS established by clear and convincing evidence that the father permanently neglected the child by failing to plan to have the child reside with him, though able to do so. The father sought custody of the child only when DSS filed the TPR petition, and he refused to sign a judicial surrender to allow the adoption to proceed. The evidence established that he was financially able to take custody of the child- he obtained public assistance for his other kids, and could have done the same for the subject child. In addition, the father had an additional child with his girlfriend in 2009, and was able to care for him.
The court did not abuse its discretion in refusing to issue a suspended judgment. The dispositional hearing is concerned only with the best interests of the child. At the time of the hearing, the child had been living in a foster home in FL for 6 months, had bonded with the foster mother, and was doing very well. The foster mother’s actions showed her commitment to the child, whom she planned to adopt. In contrast, the father had minimal contact with the child.
· Matter of Violette K. (CAF 11-01673) - Mother appeals an order, entered upon her consent without admission, in which the family court placed the child in DSS custody upon a finding that the mother neglected the child. The appeal must be dismissed, because a party may not appeal from an order entered upon that party’s consent. And because the mother never moved to withdraw her consent to the entry of the order of fact-finding of neglect, her contention that her consent was not knowing, voluntary, and intelligent is not before the Court.
June 15th
· Matter
of DeNoto (CAF 11-01829) - Order dismissing the mother's objections to the
order of the support magistrate is affirmed.
The mother's contention that the consent order does not comply with
Family Court Act § 413 (1) (h) is without merit, as that section is not
applicable where she seeks to vacate only the part of the order which
established arrears, not child support.
The record is insufficient to enable 4AD to review the mother's claim
that the support magistrate lacked subject matter jurisdiction, even though a
court's lack of jurisdiction may be raised at any time, and is never waived.
· Matter
of Fendick (CAF 11-01921) - Order denying the father's objections to the
order of the support magistrate is modified.
4AD found that the support magistrate erred in determining the amount of
rental and investment income that the parties received, and the family court
should have granted the father's objections.
The parties both testified that they split the month rental income, and
each received $800/month. The
magistrate misconstrued the testimony and found that each party received
$1,600/month (the full rental income).
The support magistrate also erred in its finding of the mother's
investment income. While the mother
receives monthly loan payments of principal and interest from 2 individuals to
whom she made personal loans, only the interest portion of those
payments, should have been considered income for the purposes of child support,
not the entire payment.
· Matter
of Mineo (CAF 11-00899) - Mother sought an order permitting her to change
the child's school district. Under the
terms of the parties' separation agreement, which was incorporated but not
merged into the judgment of divorce, the parties agreed that the child would
not be removed from the school district without expressed written consent of
the father. The family court granted a
motion to dismiss at the close of the mother's proof. 4AD reverses and denies the motion to dismiss. While that provision is a relevant factor in
considering the child's best interests, it is not dispositive. The mother met her initial burden on the
petition.
4AD granted the mother's relocation petition. The father's attorney made a statement on
the record that he would not have presented evidence at trial had the family
court denied his motion. Although the
family court did not engage in a best interests analysis, the record is
sufficient for 4AD to do so, exercising its independent power of factual
review. The Court concluded that the
best interests of the child would be served by granting the petition. The record strongly suggests that relocation
would enhance the lives of the mother and child financially and relieve the
mother's burden of transporting the child to school every day, and enable her
to increase her efforts to find employment.
There is no indication that the quality of the education provided by the
new school district is inferior to the current one, or that the father's access
to the child would be affected. By granting
the petition (rather than sending it back for proceedings in family court), 4AD
was allowing the child to enroll in the new school district at the beginning of
the 2012-2013 school year.
· Matter
of Haley M.T. (CAF 11-01173) - Order adjudicating the respondent as a
person in need of supervision is affirmed, and the appeal from the order,
insofar as it concerns placement, is dismissed. As the placement order expired in March 2012, respondent's
challenge to the disposition is moot.
The challenge to the underlying PINS adjudication, however, is not. But respondent's contentions are unpreserved
and without merit. The petition and
attached documents established that the petitioner complied with the statutory
requirements of Family Court Act §§ 732 and 735. And the court's comments at the initial appearance demonstrate
that the court had reviewed petitioner's efforts to divert the case pursuant to
section 735.
· Matter
of Tarrant (CAF 11-01859) - Order granting father sole custody is
affirmed. The parents had joint custody
with primary physical custody to the mother since January 2010. The family court adjudicated the mother to
have violated prior court orders by preventing the father from having access to
the children and 4AD deferred to that finding. The evidence showed that prior to the establishment of the
previous custody arrangement, the parties had no issues carrying out the
father's custodial access, the father had successful visits, and both children
were loving in interactions with their father and paternal grandparents. After the custody arrangement was established,
the father was denied access to the children at least 3 times, and the behavior
of the older child towards the father and paternal grandparents deteriorated
drastically. The child began to exhibit
hostility, unwillingness to enjoy time spent with them, unwillingness to speak
to the father on the phone, and began acting in a violent manner towards the
father. In light of this evidence, the
family court properly determined a change of circumstances existed to warrant
review of the custody arrangement.
Although defiance of a court order is but one factor to consider in a
best interests determination, the court properly weighed all of the relevant
factors, and there is no basis to disturb its decision.
The family court did not err by considering testimony
regarding matters that predated the custody agreement. In custody cases, the family court is
afforded broad discretion in establishing the parameters of proof, and may
extend it to all relevant matters. The
court below explained that background information about the parties'
relationship and circumstances regarding their separation was required to
enable the court to understand the reluctance of the older child to spend time
with the father, and to make an informed decision on the father's modification
petition. The testimony provided the
court with a baseline from which to assess whether there was a change in
circumstances and allowed it to conduct a more complete assessment of the best
interests of the children.
· Matter
of Christopher W. (CAF 12-00202) - Order dismissing the delinquency
petition as facially insufficient, based on the family court's finding that the
alleged victim (an infant) was unable to given sworn testimony, is
reversed. A delinquency petition is
facially sufficient if the nonhearsay allegations in the petition and any
supporting depositions establish, if true, every element of each crime charged
and respondent's commission thereof.
The allegations in the victim's supporting deposition, if true,
established that respondent subjected her to sexual contact by touching her
vagina when she was 3 years old. The
petition is therefore facially sufficient to allege that respondent committed
acts that, if committed by an adult, constitute the crime of sexual abuse in
the first degree. The fact that the
alleged victim is unable to give sworn testimony is a latent defect that does
not affect the facial sufficiency of the petition.
Further, the court's determination that the alleged victim
could not understand the nature of the oath and cannot provide the court with
sworn testimony does not amount to an implicit determination that she does not
have sufficient intelligence and capacity to provide unsworn testimony.
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