Stats & Case Summaries - Fourth Department Decisions Released on December 21, 2012

Criminal Case Summaries: 

·        People v Abner (KA 11-01996) – In this appeal from a SORA determination, defendant argued that counsel was ineffective for failing to challenge the requirement that he register as a sex offender. 4AD rejects this contention. At the time of the hearing, a challenge to the registration requirement was foreclosed by 4AD’s decision in People v Caraballo (309 AD2d 1227), which was in accord with the holdings of the other three departments, that such a challenge must be brought in an Article 78 petition. Following the hearing, the Court of Appeals abrogated those decisions in People v Liden (19 NY3d 271), holding that a challenge to the registration requirement can be brought in a proceeding to determine an offender’s risk level. But 4AD finds that counsel was not ineffective for failing to anticipate the change in the law.

·        People v Garcia (KA 10-00517) – 4AD finds that the lower court erred by failing to suppress evidence obtained from a buccal swab. The lower court properly found that the defendant had requested counsel, and therefore could not have consented to the buccal swab without counsel present. But, the court incorrectly determined that the inevitable discovery doctrine applied. That doctrine applies only to secondary evidence, or evidence derived from information obtained during an unlawful search. The buccal swab was primary evidence. The error, however, was harmless.

·        People v Holmes (KA 12-00109) – Defendant argued that the indictment against him charging, among other things, first degree disseminating indecent materials to minors, was jurisdictionally defective. Specifically, defendant argued that when he sent a text message to a 16-year-old girl, he did not use a “computer communication system” within the meaning of PL § 235.22 (see also PL § 156.00). 4AD disagrees, and initially notes that the common-law rule of lenity has been disposed of by the NY Legislature (see Penal Law § 5.00). While no New York appellate decision has ruled on the issues of whether a telephone may qualify as a computer communication system, 4AD relied on a NYC Criminal Court decision. In People v Johnson (148 Misc2d 103), the court explained that a telephone is inextricably linked with a sophisticated computerized communication system and is thus encompassed by PL § 165.00.

·        People v Jean-Phillippe (KA 08-02474) – 4AD reverses because the lower court failed to dismiss a juror who was seen falling asleep. While the trial court has discretion to determine whether a juror is unqualified, a juror who has not heard all of the evidence is grossly unqualified to render a verdict. Here, the trial court’s efforts to rehabilitate the juror—by asking whether she had missed anything—were unavailing. Once it was apparent that the juror missed some part of the trial, dismissal of that juror was required. 4AD further finds that the evidence of first degree reckless endangerment was legally insufficient, because the defendant did not act with depraved indifference when he led police on a high speed chase in heavy traffic. Although the evidence was legally sufficient to prove second degree reckless endangerment, because the Court is remanding for a new trial, it dismissed the reckless endangerment count, with leave to the People to seek a new indictment.

Presiding Justice Scudder dissented in part and disagreed that the reckless endangerment count should be dismissed with leave to re-present. Because defendant’s double jeopardy rights would attach, the People could not re-present the lesser included second degree count to another grand jury. Instead, the count should be modified to a conviction of second degree reckless endangerment. That remedy, argues Justice Scudder, is permitted under CPL 470.20, and serves both statutory mandates—to remedy an injustice to the defendant and preserve the rights of the People. (See also Justice Scudder’s dissent in People v Pallagi [91 AD3d 1266]. Leave to the Court of Appeals was granted in that case, but the appeal was subsequently withdrawn.)

·        People v Mason (KA 11-00715) – Defendant argued that the lower court erred in admitting DNA evidence. Defendant, a corrections officer, was charged in connection with a sexual assault on an inmate. He took the inmate to a certain place in a prison, engaged in sexual conduct and ejaculated. Investigators found DNA in that location. The DNA was a mixture of predominantly defendant’s DNA, and the DNA of an unknown person. The victim was excluded as a contributor. Defendant argued that the DNA constituted Molineux evidence of an alleged sexual act committed with a different inmate at a different time. 4AD disagrees, and concludes that the DNA was direct and relevant evidence of the charges at issue.

·        People v Morris (KA 11-00210) – Defendant argued that his conviction of attempted second degree assault was not supported by legally sufficient evidence. 4AD rejects this argument, explaining that the defendant choked his girlfriend until she was rendered unconscious, and continued to choke her until she began to turn blue. He further told his girlfriend that he was going to kill her. 4AD notes in particular that the girlfriend did not begin breathing again until she was resuscitated. This evidence was sufficient to show that defendant intended to cause a serious physical injury to the victim.

·        People v Stachnik (KA 09-01630) – 4AD finds that the lower court erred by imposing a 10% surcharge on the total amount of restitution ordered. Initially, 4AD notes that defendant’s contention regarding the surcharge is not encompassed by his valid waiver of appeal. Under Penal Law § 60.27 (8), an additional 5% surcharge may be imposed only if an affidavit is filed, attesting that the cost of collection and administration will exceed 5% of the total amount of restitution. Here, no such affidavit was filed.

·        People v Youngs (KA 11-01409) – D argued that his defense counsel was ineffective for failing to move to dismiss the indictment based on a statutory speedy trial violation. 4AD affirms because the record on appeal is insufficient for the Court to determine whether such a motion would have been successful. The Court overrules its decision in People v Manning (52 AD3d 1295 [4th Dept 2008]), in which it reserved decision and remanded the matter to County Court for assignment of new counsel and a hearing on the speedy trial motion. 4AD explains that the proper means by which to challenge counsel’s ineffectiveness under these circumstances is a motion under CPL 440.

Family Court Case Summaries:

·     Matter of Phelps v Hunter (CAF 11-02240) – In this custody case, the father argued that the Court Attorney Referee (CAR) did not have jurisdiction to hear and decide the case, because the CAR/JHO stipulation was signed by the father before he was advised of his right to counsel under Family Court Act § 262. 4AD rejects the contention, noting that the father and his subsequently assigned attorney willingly participated in the proceeding without objection.

·       Matter of Elsa R. (CAF 11-01487) – In this termination of parental rights matter, the mother contended that the Court of Appeals’ decision in Hailey ZZ. (19 NY3d 422), which held that post-termination contact cannot be awarded once parental rights are terminated, should not be applied retroactively. 4AD rejects this argument, finding that Hailey ZZ. did not adopt a “new” rule, and thus, the general rule, that cases on direct appeal will be decided in accordance with the law as it exists at the time of the appellate decision, applies.

·        Matter of Gena S. (CAF 11-01187) – In this termination of parental rights matter, 4AD reverses the Family Court’s order which terminated the mother’s parental rights to one of her children. The child was one month shy of her 14th birthday at the time of the order, and she consistently told the Attorney for the Child that she wanted to remain with her mother. The AFC also informed 4AD that Gena S., now 15-years-old, still refuses to consent to an adoption (see Domestic Relations Law § 111 [1] [a]). The child had no real bond with anyone except the mother and her sisters. 4AD notes that it may consider new facts and allegations that were not before the Family Court, to the extent those facts indicate that the record is no longer sufficient to determine whether a termination of parental rights was in the child’s best interests. Because there is uncertainty as to what an appropriate permanency goal may be with respect to the child, 4AD remands to Family Court for a new dispositional hearing.