Criminal Case Summaries:
·
People
v Abrams (KA 10-01927) – D argued that the lower court erred by denying
his motion to suppress a handgun recovered by police. Police observed D walking
with what appeared to be a laptop under his arm, in an area where there had
recently been a series of burglaries. The officers exited their car and started
to approach D, when he stated that he was carrying jeans and held them up.
Police observed the outline of a gun in D’s sweatshirt. D then began to run and
dropped the gun as he did so. 4AD finds that the initial approach by police was
a level 1 intrusion under De Bour,
which was justified by an objective credible reason. When the officers pursued
D and took him into custody, they had a reasonable suspicion that he had
committed a crime.
·
People
v Hicks (KA 11-02286) – 4AD reverses D’s conviction, after a jury trial,
for second degree criminal possession of marijuana and operating a motor
vehicle with excessively tinted windows, because D was denied a fair trial due
to prosecutorial misconduct. The prosecutor, on cross-examination of D,
repeatedly asked him to characterize prosecution witnesses as liars. On
summation, the prosecutor stated that the defense theory was that “the police
are liars.” The majority concluded that D did not open the door to such
statements. While D’s testimony was at odds with police testimony with respect
to various matters, he did not expressly suggest that the police officers were
liars. In addition, the prosecutor incorrectly stated on summation that there
was no evidence that D had been offered a plea bargain.
The dissent
(Scudder, P.J., and Smith, J.) concludes that to the extent there was any
misconduct, it was not so pervasive as to deny D a fair trial. The dissent also
opined that it was not improper for the prosecutor to ask D if prosecution
witnesses were lying, because D’s testimony suggested that the People’s
witnesses were fabricating their testimony. The prosecutor’s statement
regarding the lack of evidence of a plea bargain was also not improper. That
statement was “technically correct”, because there was “no evidence” presented at trial
of a plea bargain.
·
People
v Jones (KA 10-00399) – 4AD finds that D’s conviction of depraved
indifference murder was not supported by legally sufficient evidence. The court
initially explained that the circumstances supporting such a conviction in cases involving one person’s attack on a single victim are rare and
extraordinary. Such cases require proof of “wanton cruelty, brutality or
callousness directed against a particularly vulnerable victim, combined with
utter indifference to the life or safety of the helpless target.” Here, D
neither abandoned a helpless victim, nor engaged in torture, or a brutal and
prolonged course of conduct against a vulnerable victim. The victim in this
case was strangled, and D called 911 regarding the victim’s asphyxiation,
administered CPR, and was present when emergency personnel arrived. While the
evidence did not support the conclusion that D acted with depraved
indifference, it proved that D acted recklessly. 4AD thus modified the
conviction to second degree manslaughter.
· People
v Snyder (KA 10-01801) – 4AD finds that D’s argument that the
indictment was duplicitous was not preserved, and, although the contention that
the indictment was rendered duplicitous by the proof at trial does not require
preservation, 4AD rejects that contention. The evidence demonstrated that
multiple kicks and punches were a single, continuous assault. 4AD also finds
that D’s boots qualified as a “dangerous instrument”, because under the
circumstances, they were readily capable of causing death or other serious
physical injury. Further, evidence that the victim suffered significant and
extensive damage to his teeth was legally sufficient evidence of “serious and
protracted disfigurement” under Penal Law § 10.00 (10). 4AD does find that the
sentence imposed was harsh and severe under the circumstances, and reduces it
to a term of 7 years imprisonment.
·
People
v Stump (KA 11-01631) – D was convicted of third degree rape as a juvenile
offender. 4AD vacates the DNA data bank fee and the sex offender registration
fee imposed at sentencing. PL § 60.10 is the only provision of article 60 of the
Penal Law that applies to juvenile offenders (see PL § 60.00 [2]), and that section does not provide for the
imposition of those fees.
· People
v Warren (KA 12-00345) – In this 3-2 decision, 4AD reverses because the
trial judge should have recused himself. D moved before trial to recuse the
judge, on the grounds that he had a personal bias against D and his
girlfriend, as a result of (1) a confrontation between the judge and the
girlfriend, and (2) a grievance filed by the prosecutor that referenced the
confrontation. While a legal disqualification under Judiciary Law § 14 did not
apply, the majority reasoned that this was a case in which the judge should
have recused himself to maintain the appearance of impartiality. The
confrontation between the girlfriend had occurred at a county fair, when the
girlfriend was wearing a t-shirt supporting the judge’s rival candidate for
County Court. The judge had taken numerous pictures of the girlfriend, and also
yelled at her, stating that she would go to jail for wearing the shirt. The
judge later showed up at the girlfriend’s home, presumably to apologize, and
spoke to D. During the instant matter, D was considering a bench trial, and
contended that he would be hesitant to call his girlfriend as a witness. Under
these circumstances, the judge should have recused himself.
Scudder, P.J.,
& Smith, J., dissented, and argued that while recusal might have been the
better practice, there was no statutory basis mandating recusal, and the
decision was thus left to the discretion of the trial judge. Here, there was no
abuse of discretion. The confrontation between the judge and the girlfriend
occurred several years earlier, and the grievance filed by the
prosecutor was denied. There was also no evidence that any alleged bias
unjustly affected the result in this case.
Family Court Case Summaries:
·
Matter
of Hilgenberg v Hertel (CAF 11-02483) – In this grandparent visitation
matter, 4AD vacates the award of one weekend of overnight visitation per month
to the grandfather and remits the case for further proceedings. In
grandparent visitation matters, a fit parent’s decision about whether such
visitation is in the best interests of the child must be accorded special
weight. Here, the lower court did not make a finding concerning the mother’s
fitness, and 4AD therefore accords special weight to her decision that
visitation with the grandfather was not in the child’s best interest. 4AD
further finds that the lower court’s decision does not have a sound and
substantial basis in the record. The mother and grandmother testified regarding
the grandfather’s drug use and sales, and about an incident of vehicular assault
upon the mother’s boyfriend. The court below did not make a credibility
determination regarding those allegations, and 4AD did not have a basis upon
which to determine the effect of those incidents on the best interests of the
child. In addition, there was no evidence of the grandfather previously having taken care of the
child overnight, or for such an extensive period of time as the overnight
weekend visitation awarded by the court.
·
Matter
of Mukuralinda v Kingombe (CAF 11-01353) – In this custody proceeding,
4AD reverses the Family Court’s dismissal of the father’s modification
petition. The Family Court determined that the father did not have standing
because the parties were not married and there was no acknowledgment of
paternity. 4AD first notes that the father’s primary language is Swahili, and
there was some miscommunication when the court asked him if he and the mother
were married. The court also interrupted him when he tried to explain the “cultural
ceremony” during which he and the mother were married in Africa.
4AD further notes that the mother had previously asserted that the parties were
married and secured an order in her favor, and the doctrine of judicial
estoppel prohibited her from making a contrary assertion in the present matter.
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