Saturday, December 29, 2012

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

Criminal Case Summaries:


·        People v Davis (KA 10-01825) – 4AD, among other things, upholds the lower court’s denial of defendant’s suppression motion. Defendant was on parole when he was arrested on drug charges after a traffic stop. The police notified his parole officer of the parole violation, and the parole officer then decided to search defendant’s residence with the assistance of police officers and a K-9 unit. 4AD agrees with the lower court that the evidence showed that the search was in furtherance of parole purposes, and was rationally and reasonably related to the parole officers’ duty as parole officers.


·        People v McKinley (KA 09-01307) – 4AD rejects defendant’s argument that the lower court erred in refusing to suppress the gun he threw while being pursued by police. Police responded to a 911 call regarding shots fired. The caller stated that a black male dressed in dark clothing had fired the gun, and that 3 other males were involved. The officers came upon four males within about 1 minute of the call about 1 block away from where the shots were fired. Two of the males began to run while the officers, who were in an unmarked car and in plainclothes, were exiting their car. The officer who chased defendant testified that he repeatedly yelled “stop, police” as he was pursuing him. 4AD finds that the officers had a founded suspicion when they first came upon the group of four males, based on their temporal and geographic proximity to the shooting incident, and because they matched the description provided by the 911 caller. 4AD also rejects defendant’s reliance on People v Riddick (70 AD3d 1421), for his argument that pursuit was not justified because the defendant did not know he was running from police officers. Here, unlike in Riddick, the police were responding to a reported crime and had a founded suspicion when they came upon defendant. Those circumstances, and defendant’s failure to stop once police identified themselves, justified pursuit.

·        People v Moore (KA 11-02529) – After pleading guilty, defendant suffered a brain injury that allegedly impacted her cognitive abilities. Pursuant to defendant’s request, two examination reports were prepared regarding her competency, but they were inconclusive. A third report was ordered, but never completed, and upon defense counsel’s request, defendant was sentenced. Defense counsel acknowledged at sentencing that defendant was being sentenced without conclusive proof of her mental competence. 4AD modifies the judgment and remands the matter for resentencing because the lower court should have ordered, sua sponte, a competency hearing pursuant to CPL 730.30 before sentencing defendant. In addition to the inconclusive examinations and defense counsel’s acknowledgment at sentencing, 4AD noted that the record did not indicate whether the court had the opportunity to interact and observe defendant to assess her capacity before sentencing her.

·     People v Santiago (KA 07-02489) – 4AD modifies defendant’s conviction of second degree murder (depraved indifference) to second degree manslaughter. Defendant suffocated her 2-year-old son by placing a comforter over his face until he passed out. Defendant then left the room, and did not return to her son’s room until the next morning, which was about 19 hours later. 4AD finds that this evidence was legally insufficient to show that defendant acted with depraved indifference to human life. Defendant’s actions did not rise to the level of “wickedness, evil, or inhumanity” so as to render her as culpable as someone whose conscious objective is to kill.

·        People v Williams (KA 09-01187) – 4AD reverses defendant’s conviction because the lower court improperly annotated the verdict sheet in violation of CPL 310.20 (2), and also improperly curtailed defense counsel’s summation. Under CPL 310.20, nothing of substance can be included in the verdict sheet, unless authorized by that statute. Here, the lower court annotated the second count (criminal possession of a forged instrument) with the check number, among other things. 4AD also reverses the conviction under count four, the lesser included offense of grand larceny in the fourth degree, because that count was factually related to count two. It was also error for the court to prohibit defense counsel from commenting upon the credibility of the accomplice, based on the accomplice’s cooperation agreement and sentencing promise.

Family Court Case Summaries:a


·        Matter of Bushnell v Bushnell (CAF 11-00001) – In this child support matter, appellant argued that he did not willfully violate the support order because his business failed as a result of the economic downturn, and he was therefore unable to make payments. 4AD rejects this argument, noting that following the collapse of his business, appellant did not actively pursue other employment, nor did he sell any business assets to enable him to make payments.

·        Matter of Malik S. (CAF 11-01663) – In this termination of parental rights case, 4AD reverses the order terminating the mother’s rights due to new circumstances that arose following the order (see Matter Michael B., 80 NY2d 299, 318). Specifically, the child’s adoptive placement was disrupted and the child was living in a group home. Moreover, no new adoptive placement had been located and the child did not wish to be adopted. Finally, the child has reestablished contact with his maternal grandmother, who expressed a desire to pursue custody. 4AD thus remitted the matter for a new dispositional hearing.

·        Matter of Storelli v Storelli (CAF 11-02003) – In this child support matter, 4AD reverses because appellant was denied his right to counsel. While an individual may proceed pro se in a support proceeding, he may only do so following a knowing, voluntary, and intelligent waiver of his right to counsel. Such a waiver can only occur following a searching inquiry that apprises the litigant of the dangers and disadvantages of representing oneself. Here, no such inquiry was conducted before appellant was permitted to proceed pro se.
 

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