Stats & Case Summaries - Fourth Department Decisions Released on October 5, 2012

Criminal Case Summaries:

·        People v Allen [Appeal 2] (KA 10-02120) – In this appeal from a resentencing, 4AD reverses because the lower court allowed D to proceed pro se at his resentencing without conducting a searching inquiry to ensure a knowing, voluntary, and intelligent waiver of appointed counsel. Appearing pro se had an adverse impact on defendant, and 4AD remitted the matter for proceedings in accordance with D’s right to counsel.

·        People v Carr (KA 09-01480) – D contended that the evidence was legally insufficient to establish his identity, and that he had possessed a loaded weapon. Two police officers and two other witnesses testified that the suspect in a drive-by shooting was the front-seat passenger of the car. The witnesses also observed the shooter’s hat blow off his head during the shooting, and the DNA on the hat matched D’s DNA profile. The DNA profile recovered from the handgun also matched D’s DNA profile, and the cartridge casings recovered from the scene exhibited “class characteristics” that were consistent with having been fired from that handgun. Also, a jailhouse informant testified that D admitted he was the shooter. This evidence established D’s identity, and that at some point before he was apprehended, he possessed a loaded firearm.

·        People v Casado (KA 10-00387) – D was convicted of, among other things, attempted aggravated murder of a police officer. He contended on appeal that the indictment was duplicitous because the evidence at trial established that there were two separate shooting incidents. 4AD rejects this contention because the bill of particulars specified that D attempted to murder a specific police officer. Thus, even though there were two separate acts proved at trial—i.e., the first involved D shooting at a police car in which there were 4 officers, and the second involved D shooting at the specific police officer, while that officer chased him. The first incident, 4AD reasons, did not support the conclusion that D attempted to kill the specific police officer.

·        People v Castor (KA 09-00469) – D appealed from her conviction of second degree murder (of her second husband) and attempted second degree murder (of her daughter). D contended that the lower court abused its discretion by admitting into evidence that D murdered her first husband. 4AD finds that the lower court properly admitted this evidence because it was relevant to identify, and there was clear and convincing evidence that D committed the uncharged murder. First, D committed the uncharged murder of her first husband by using a unique modus operandi—i.e., poisoning by antifreeze (which was the same method used to murder the second husband). Second, there was clear and convincing evidence that D committed the first murder—i.e., D had taken out a life insurance police on her first husband, she had refused to permit an autopsy on his body, and she was aware of certain facts that only the murderer could know. 4AD further explains that the first murder was inextricably interwoven with the second murder. A fake suicide note that D had written in order to make it appear that her daughter had committed suicide, contained references to the first murder, and was written shortly after the body of the first husband had been exhumed.

4AD does, however, reverse the summary denial of D’s CPL 440 motion. 4AD finds that D may have been interrogated by police in violation of her right to counsel, and remanded for a hearing to determine whether her indelible right to counsel had attached prior to the interrogation.

Family Law Case Summaries:

Fewell v Ratzel (CAF 11-01625) – Order dismissing an incarcerated father’s visitation petition is reversed. It is generally presumed to be in a child’s best interests to have visitation with the noncustodial parent and the fact that the parent is incarcerated will not, by itself, render visitation inappropriate.  The mother presented no evidence to overcome the presumption, and the court failed to make an appropriate inquiry into the impact of visitation on the welfare of the child.  Remitted for a new hearing, at which the court shall consider the full range of pertinent factors.

Lang-Loeb v O’Neill (CAF 11-01230) – Order denying relocation is upheld.  Mother failed to establish by a preponderance of the evidence that it was in the child’s best interest.  The mother’s primary reason for moving was that she got a job in Alabama, but by the conclusion of the hearing, she no longer had that job.  Although her attorney asserted that she had other job offers, there was no evidence presented.  Mother also made no effort to seek employment in New York- she admitted that she did not send out a single resume or fill out a job application here.

4AD modifies, however, by vacating the provision that primary physical custody shall be transferred to the father in the event that the mother relocates.  That provision would impermissibly alter the parties’ custodial arrangement automatically upon the happening of a specified future event, without taking into account the child’s best interests at that time.

Matter of Joseph C.E. (CAF 12-00431) – Order adjudging respondent to be a person in need of supervision is reversed, and the petition dismissed.  The petition failed to demonstrate that the Probation Dept. exerted documented diligent attempts to avoid the necessity of filing a petition.  The report attached to the petition simply stated in a conclusory manner that diversion services were provided for respondent and his family.  The failure to comply with substantive statutory requirements constitutes a nonwaivable jurisdictional defect requiring dismissal of the petition.

Brazie v Zenisek (CAF 11-00898) – Order directing respondent to stay away from petitioner is reversed and the petition is dismissed.  Respondent is the fiancé of petitioner’s estranged husband.  Petitioner failed to meet her burden of establishing by a preponderance of the evidence that respondent committed disorderly conduct, harassment in the second degree, and aggravated harassment in the second degree.  Disorderly conduct was not established because there was no evidence that respondent intended to cause public inconvenience, annoyance, or alarm.  Harassment and aggravated harassment were not established because the evidence failed to show that by arguing with her fiancé and making threats against him and petitioner, respondent intended to harass, annoy, threaten, or alarm petitioner, who was not present at that time.  Although petitioner later listened to a recording of the argument that had been left on a voicemail, there is no evidence that respondent knew that her fiancé was recording her threats.

Crudele v Wells (Appeal #2) (CAF 12-00317) – Mother did not establish a change of circumstances warranting an award of sole custody, and her petition was properly denied.  Although she testified that the father was responsible for a complete breakdown in communication between them, she stipulated to the admission of a report by a court-appointed psychologist that opined that the child was doing well under the current arrangement and the issues between the parties were not insurmountable.

Court order for the child to attend a certain school district is also upheld.  Although the court appears to have accorded significant weight to NYS Dept of Education data on the merits of the school district, the court also heard evidence from the parties and expert witnesses that provided a sound and substantial basis in the record for the determination that the child’s best interests would be served by attending those schools.

Hall v Hawthorne/ Hawthorne v Hall (CAFs 11-01897, 11-01931, 11-01932) – Order dismissing mother’s petition for modification of custody and visitation is affirmed.  The court did not err in refusing to allow mother to present evidence that the father abused the child.  The court properly limited the proof to incidents that occurred after the custody and visitation order was entered.  Further, the mother failed to offer any evidence to corroborate the child’s out of court statements, which is required for an exception to the hearsay rule in custody cases involving allegations of abuse or neglect of a child.

Commissioner of Social Services v Turner (CAF 11-01391) – Family Court properly confirmed the finding of the Support Magistrate that respondent willfully violated the support order. The evidence that he was receiving social security disability benefits did not, by itself, preclude the court from finding that he was capable of working.  But 4AD modified the order by vacating the suspension of respondent’s hunting and fishing licenses. Family Court Act § 458-c (a) permits the court to order suspension of the recreational licenses of respondents who have at least 4 months of arrears, but the statute specifically states that its provisions shall not apply to respondents receiving supplemental security income.