Case Summaries - Fourth Department Decisions Released on November 16, 2012 & November Term Stats

Criminal Case Summaries: 

·        People v Beard (KA 10-01864) – 4AD reverses D’s conviction because the lower court violated his right to counsel. While an indigent defendant does not have the right to the appointment of successive lawyers of his own choosing, he may be entitled to a new lawyer upon a showing of good cause for substitution. Where a defendant raises a seemingly serious complaint, the trial court is required to conduct a minimal inquiry regarding the complaint. Here, D informed the court before jury selection that this was the first time he was able to speak to the attorney, he was not informed of his trial date, and he was not told of certain pretrial hearings conducted in his absence. After holding a bench conference with the lawyers, the court explained to D that the trial would be going forward. D further complained when the court asked him if he would like to be present during side-bars and bench conferences. 4AD concludes that D’s complaints were sufficiently serious and should not have been summarily dismissed by the lower court, especially because the complaints were either supported or uncontradicted by the record.

·      People v Bounds (KA 08-01429) – D argued he was denied a fair trial because the prosecutor engaged in misconduct when he arranged for the arrest of a woman who was in the courthouse waiting to testify on D’s behalf. 4AD rejects that contention, first noting that defense counsel decided not to call the woman as a witness, and did not establish that her testimony would have been favorable. The arrest of the witness was lawful and the police did not have to wait until she testified to arrest her.

·      People v Burnett (KA 08-02248) – 4AD reverses because the lower court erred by denying D’s request to charge second degree assault as a lesser included offense of first degree assault. The People conceded that the first prong of the Glover-Green test was satisfied, and with respect to the second prong, 4AD finds that the jury could have found that D intended to cause a physical injury rather than a serious physical injury, or that he acted recklessly rather than intentionally.

·       People v Diaz (KA 11-00996) – In this SORA matter, the 4AD majority modifies D’s risk level from level three to level two. The lower court erred by making an upward departure based on factors that were already taken into account by the risk assessment instrument. The court also erred by relying on D’s mental illness, because the record contained no admissible evidence demonstrating D suffered from a mental illness, or that D’s mental illness was causally related to his risk of reoffending.

The dissent (Fahey, J.) argues that while the lower court relied on some factors that were already accounted for by the risk assessment instrument, D’s mental illness—schizophrenia—was not accounted for by the RAI. The evidence of D’s mental illness contained in the unsigned case summary was admissible, because it met the “reliable hearsay” standard for admissibility in SORA proceedings. The connection between D’s mental illness and his risk of reoffending implied in the case summary was neither unduly speculative, nor undermined by other compelling evidence.

·        People v Members (KA 08-02020) – 4AD reverses because the lower court erred by accepting the verdict from 11 jurors. The 12th juror had suffered a seizure during deliberations late in the day on a Friday, and was taken to the hospital. D objected to the substitution of an alternate juror and moved for a mistrial. The lower court took the verdict from the 11 jurors and directed them to return on Monday morning, when the court would determine whether the missing juror rendered the same verdict. On Monday morning the missing juror affirmed his verdict, and the rest of the jurors reaffirmed their verdict. Although sympathetic to the lower court’s attempt to avoid a mistrial, 4AD explained that a defendant is entitled to a determination of guilt by 12 jurors. When a court accepts a verdict, it becomes final and binding. Here, the lower court could have recessed the proceeding until Monday, or inquired whether D would waive his right in writing and in open court. Because it did not choose either option, reversal was required.

·    People v Smart (KA 09-01305) – D was sentenced as a persistent felony offender for his conviction of second degree burglary to 20 years to life imprisonment. The 4AD majority modifies the sentence to 15 years to life, explaining that while second degree burglary is classified as a violent crime, D did not engage in any violence, and his criminal history is mostly non-violent. The majority notes that it is modifying only the minimum term of D’s sentence, so that he has the opportunity to establish whether he has earned the right to parole sooner.

The dissent (Scudder, P.J., and Martoche, J.) argues that D has an extensive criminal history, and, in this case, the People proved by clear and convincing evidence that D acted to keep a witness against him from testifying. The dissent also emphasized that the Appellate Division’s power to reduce a sentence should be exercised only in “unique and narrow circumstances”, and such circumstances were not present here.

 
Family Court Case Summaries:

·        Matter of Burrell v Burrell (CAF 11-01551) – In this custody matter, the lower court correctly determined that the father established a change in circumstances to warrant an inquiry into whether a modification of custody would be in the child’s best interests. The father established that on several occasions, the mother left the subject child without adult supervision while she ran errands. The child also indicated to the mother and father that her step-brother had touched her sexually or inappropriately. While the child’s statements were not corroborated, the mother enrolled the step-brother into counseling. Those two things constituted the requisite change in circumstances.