Stats & Case Summaries - Fourth Department Decisions Released on February 1, 2013

Criminal Case Summaries:

·        People v Bills (KA 11-01777) – At sentencing following D’s guilty plea to felony DWI, the court told her “I will have to fine you”, and imposed a $1,000 fine on each DWI count. 4AD finds that this statement demonstrates that the sentencing court misapprehended that it had no discretion to determine whether or not a fine should be imposed. Further, 4AD reviews this issue despite D’s valid waiver of her right to appeal, because a defendant may not waive the right to challenge the legality of a sentence.

·        People v Cady (KA 12-00337) – In this appeal following a guilty plea, D argued that the lower court should have suppressed the gun he discarded when a police officer tackled him. Police had been investigating a shooting of a police officer in the City of Rochester that occurred 8 hours earlier, and established a perimeter around the scene. D was walking to the store, approximately a block or two from the scene. Two officers attempted to talk to him, but D turned around, made a gesture with his hands toward his waistband, and ran. Police pursued him, and eventually caught him, at which time D discarded a gun. While police had an objective credible reason to approach D, 4AD finds that the officers did not have reasonable suspicion to justify their pursuit. Specifically, D’s mere reach for his waistband, without further indicia that D might have a gun, did not give rise to reasonable suspicion, nor did D’s presence near the scene, 8 hours after the incident.

·        People v McGrew (KA 09-01308) – 4AD reverses D’s conviction because a Syracuse police officer unlawfully stopped him and his codefendant in the Town of Dewitt. The officer was working security at an athletic event at a college in Dewitt. He observed the codefendant abruptly turn around in front of the gymnasium, walk to a car, quickly lean in, then begin to proceed back to the gym. The officer stopped codefendant, who apparently smelled of marijuana. The officer also stopped defendant when he exited the vehicle a few seconds later. The officer observed a gun and marijuana after looking into the car. Under CPL 140.50 (1), an officer may stop a person in a public place within the geographical area of the officer’s employment. Here, the geographical area of employment was the City of Syracuse. 4AD finds that under the facts of the case, the officer’s violation of CPL 140.50 (1) required suppression of the gun and marijuana. As an alternative basis for reversal, 4AD finds that the lower court abused its discretion by denying D’s peremptory challenge to a prospective juror.

·        People v Rodgers (KA 11-00012) – D argued, among other things, that the 19-year pre-indictment delay violated his rights to a speedy trial and due process. 4AD finds that despite the substantial delay, the underlying charge was serious—second degree murder—and D was at liberty until he was indicted. The People also established good cause for the delay. It was not until police obtained statements from 3 witnesses and completed DNA testing that there was sufficient evidence to bring the charges. There was no showing that the People acted in bad faith or significantly abused their discretion. Although the delay may have caused some prejudice to D, there was no showing that the delay significantly impaired the defense.

·        People v Snyder (KA 11-00316) – 4AD reverses D’s conviction for, among other things, first degree rape, because the prosecutor violated the lower court’s Sandoval ruling. D had prior convictions for sexual abuse and failing to comply with SORA. The court ruled that the prosecutor could ask only whether D had two prior felonies. On cross-examination of D, the prosecutor asked him general questions about whether he was a law-abiding person, whether he would ever harm a teenager, and whether he would ever force himself upon another person sexually. When D responded that he would not, the prosecutor was permitted to elicit the nature of D’s prior convictions. 4AD finds that D did not open the door and the lower court should not have permitted the prosecutor to question D about the nature of the prior convictions. Specifically, the prosecutor’s general questions went beyond what the court ruled the prosecutor could ask D. D’s answers, moreover, were ambiguous, and could not be characterized as denials of his prior convictions.

·        People v Wilson (KA 11-01197) – 4AD reverses the lower court’s order determining D to be a level three risk under SORA because the court failed to conduct a “searching inquiry” before permitting D to proceed pro se. A “searching inquiry” is required to ensure that a defendant’s waiver of counsel is knowing, voluntary, and intelligent. The only statement the lower court made regarding D’s decision to proceed pro se was “[y]ou might be better served by going with your original impulse to have assigned counsel represent you.” This statement was inadequate and rendered D’s waiver of his right to counsel invalid.

Family Court Case Summaries:

·        Matter of Murphy v Wells (CAF 11-01212) – In this custody matter, the father argued that the mother did not establish a change of circumstances warranting a modification of a prior joint custody order. 4AD rejects this argument, noting that a change in circumstances may be demonstrated by interference with the noncustodial parent’s visitation or telephone access. Here, the father interfered with the children’s telephone communications with the mother. In addition, the parents’ relationship had grown strained and acrimonious, making communication between them impossible.

·        Matter of Venus v Brennan (CAF 11-01878) – In this custody matter, 4AD reverses the lower court’s order denying the mother’s relocation petition. The mother established that a relocation from Syracuse to New York City would benefit the child economically and emotionally, because the mother’s earning potential would increase and she would have more time to spend with the child. The mother also agreed to maintain visitation with the father, and to transport the child to and from Syracuse.

·        Matter of Wright v Walker (CAF 12-00962) – In this visitation matter, 4AD reverses the lower court’s order because the court failed to advise the grandmother of her right to counsel under Family Court Act § 262. 4AD also rejects the Attorney for the Child’s argument that a party in a visitation proceeding does not have the right to an assigned attorney. Although the word “visitation” does not appear in FCA § 262, a proceeding to modify a prior visitation order is a proceeding under article 6 of the Family Court Act, and thus falls within the purview of the assigned counsel statute. The grandmother was thus entitled to be advised of her right to assigned counsel, and the court’s failure to so advise requires reversal “without regard to the merits of the unrepresented party’s position”.