Stats & Case Summaries - Fourth Department Decisions Released on September 28, 2012

Criminal Case Summaries:

·        People v Caldwell (KA 10-02198) – 4AD finds that there was legally sufficient evidence supporting D’s conviction of attempted second degree murder and first degree assault. Specifically, there was sufficient evidence of intent to cause death. D’s intent could be inferred from his conduct and statements he made to a 911 operator. After D and the victim fought, D obtained a gun from his home and fired several shots at the victim. D also told the 911 operator that emergency responders should hurry up, that he was going to shoot the victim, and that the victim would die.

·        People v Flinn (KA 10-00693) – D contended he was denied his right to be present at a material stage of the trial—i.e., bench conferences with potential jurors during jury selection. 4AD explains that the right to be present may be waived, and here, it was, because D failed to attend the bench conferences after being informed of his right to do so.

·        People v Campbell (KA 09-00341) – D contended that the evidence supporting his conviction of second degree criminal possession of a weapon was legally insufficient. Police found a gun on the floor of the rear passenger seat of the automobile in which D was a passenger. D’s presence in the automobile constituted presumptive constructive possession of the gun under Penal Law § 265.15 (3). 4AD distinguishes its decision in People v Wilt (105 AD2d 1089). In Wilt, the gun was found in the trunk of the car, and D testified that he did not know the gun was in the car, and that he had been in the car for only 5 or 6 minutes to look for his girlfriend. Here, the gun was found inside the car of which D was a passenger, and D did not testify to rebut the presumption that he constructively possessed the gun. It was thus rational to conclude that D had the ability and intent to exercise dominion and control over the gun.

·        People v Gilchrist (KA 08-00826) – D contended he was deprived of his constitutional right to present a defense. D was convicted of attempted robbery of a store. At trial, D wanted to prove that the attempted robbery was actually a drug deal gone bad. The lower court did not permit D to ask a police witness whether the store had been the focus of police attention prior to the robbery attempt. 4AD finds that the lower court properly determined that the question was beyond the scope of direct-examination, and was premature, because no evidence had yet been presented that the incident stemmed from a drug transaction. 4AD also notes that the scope of cross-examination is within the sound discretion of the trial court. 4AD further finds that the court properly precluded testimony regarding drug sales (in locations other than the store) by the two prosecution witnesses who were the victims of the attempted robbery. The sales were remote, disconnected acts that were not relevant to the attempted robbery, because D did not testify that he had purchased drugs from the victims on the date in question or on prior occasions. Instead, D testified that he was attacked by the victims because he had allegedly robbed a victim’s brother.

·        People v Wyant (KA 12-00928) – The lower court had reduced the sole count against defendant, second degree murder, to first degree assault, on the ground that the evidence before the grand jury was legally insufficient. 4AD reverses, and first notes that first degree assault is not a lesser included offense of second degree murder. In addition, the lower court incorrectly concluded that the People did not properly qualify their medical examiner as an expert witness. It could be inferred that the medical examiner was a licensed physician with the requisite training. But even if it could not, the witness testified that she has performed just less than 500 autopsies. Because an expert’s qualification may be based on experience (rather than academic training), the medical examiner was properly qualified as an expert.

·        People v Williams (KA 10-00055) – D was improperly sentenced as a second felony offender without a hearing pursuant to CPL 400.21. When the lower court asked her if she would admit to a prior fourth degree grand larceny conviction, she responded that she would not, that she wanted a hearing, and that she did not remember the conviction. D sufficiently controverted the allegations to warrant a hearing. 

·     People v Abdulla (KA 10-01262) – Defense counsel erred by informing D that he had the right to raise the denial of his pro se speedy trial motion on appeal, despite his guilty plea.  But D’s contention that he was denied effective assistance of counsel did not survive his plea because there was no showing that the plea bargaining process was infected, or that D entered the plea because of counsel’s poor performance.  D admitted that he pleaded guilty to avoid a lengthy prison sentence.  He was facing 3 consecutive terms ranging from 5 to 25 years, and he pled to 2 years imprisonment and 2 years PRS. 

·     People v Bibbes (KA 11-00452) – In this burglary conviction, D argues that there was insufficient evidence of intent to commit a crime, because he was acquitted of the attempted rape and sexual abuse charges.  But the People did not expressly limit their theory of liability to a specific crime in the pleadings, and were required to allege only a general intent to commit a crime.  And even if the People’s evidence effectively limited their theory to rape and sexual abuse, D’s intent to commit those crimes could be inferred from the circumstances here. V testified that after she opened the door a crack when D knocked and told her it was an emergency, D pushed the door in and cornered her in the hallway, choking and slapping her, and then made sexual comments, and fondled her breasts while his erect penis was visible through his pants.  D only left after V kneed him in the groin.  It is of no moment that the jury acquitted D of sexual abuse, as that crime requires proof of the completed act, and of attempted rape, as the jury could have found that D intended to rape V, but did not come dangerously close to fruition.

      The court did not err by allowing V to testify that the day after the incident, D threatened to kill her and her daughter and displayed a gun, saying that he would not go to jail for a crime he didn’t commit.  Evidence of threats made by D against one of the People’s witnesses is admissible on the issue of consciousness of guilt, even if it is evidence of prior bad acts.  The court did not abuse its discretion in determining that the probative value of that evidence outweighed any unfair prejudice.

·     People v Copperwood (KA 11-02059) – Appeal from a denial of a 440 motion is reversed and remitted.  D raised issues of fact in support of his motion and the court erred in denying it without conducting a hearing.  D claims that counsel failed to advise him of the need for corroboration of a co-D’s testimony and of a potentially viable affirmative defense, and D contends that he would not have pled guilty if he had known of these legal issues.  D contends that the goal of counsel from the outset was to dispose of the charges by way of a guilty plea and consequently failed to pursue any viable legal challenges to the evidence against D.  

  

·     People v Williams (KA 11-01832) – There is legally sufficient evidence of D’s convictions of criminal possession of a weapon and menacing a police officer.  It was established that D intended to use the revolver unlawfully against another and to place the officers is reasonable fear of physical injury, serious physical injury, or death.  The officers testified that D was ordered to drop his weapon and refused to comply, and that D pointed or waved the gun at the officers as they pursued him.

Family Court Case Summaries:

·        Matter of Cedeno v Knowlton (CAF 12-00272) – In this child support matter, the lower court properly denied the father’s objections to the Support Magistrate’s child support order. A parent is obligated to support a child until the age of 21, unless the child becomes emancipated—i.e., the child becomes economically independent and self-supporting. Here, the child worked on a full-time basis, but the mother continued to pay for the child’s food, gas, and cell phone. The child was therefore not economically independent and self-supporting.

·        Matter of Alisa E. (CAF 11-01526) – In this termination of parental rights case, the mother was not denied effective assistance of counsel at the fact-finding hearing. A parent has the burden of showing that she was denied of meaningful representation, and that the lack of meaningful representation resulted in actual prejudice. While the attorney should have objected to leading questions, the failure to do so was harmless. In addition, the attorney’s decision to not object to hearsay may have been strategic (to establish leniency for his own line of questioning).

·        Matter of Bradley M.M. (CAF 11-01184) – In this neglect case, the lower court erred in entering a fact-finding order on the father’s default. The father’s failure to appear at the hearing did not constitute a default, because the father’s attorney informed the court that he was authorized to proceed in the father’s absence, and the attorney objected to the entry of the default order.

·         Matter of Terrence G. (CAF 11-00799) – Order granting summary judgment in an Article 10 proceeding is reversed.  Petitioner alleged that mother derivatively neglected the child based upon her use of opiates and her prior neglect of her other children.  Although it is well settled that summary judgment may be appropriate in an Article 10 proceeding, the movant bears the burden of eliminating all triable issues of fact.  Here, the petitioner attached to its motion only a petition and a psychological assessment from a TPR proceeding involving one of the other children, without any evidence of the outcome of that proceeding.  Although the court indicated its familiarity with the prior proceeding, the record is silent.  Based on the record, there are triable issues of fact that preclude summary judgment.

·          Matter of Tiosha J. (CAF 11-00118) – Termination of parental rights is affirmed.  Father failed to attend an anger management program following his arrest in connection with a domestic violence incident where he allegedly assaulted mother and damaged her home.  He also failed to cooperate with DSS employees when they attempted to enter his home, the condition of which was the basis for removal, and refused to verify his income.  Thus, father did not adequately address the issues that cause the removal of the children.  Further, the court properly determined that termination was in the children’s best interests.  During the 5 years that they were in foster care, father only had supervised visitation with the children, 2 of whom had never been in the parents’ care, and one of whom had only been in the parents’ care for 10 months.