·
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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