Stats & Case Summaries - Fourth Department Decisions Released on February 8, 2013

Criminal Case Summaries:

·        People v Carr (KA 08-02222) – 4AD reverses D’s conviction because the lower court erred by denying his motion to suppress a handgun. A police officer approached D’s car at 4 a.m. because it was illegally parked, and asked D “what’s going on?” Because D was in an area known for drug-dealing and prostitution activity, and he looked nervous, the officer asked him why he looked so nervous. D replied that he was seeking a prostitute. The officer also asked D whether there was anything in the car the officer needed to be aware of, and whether he could search the car. D granted the officer permission, and a search of the car yielded a handgun. 4AD finds that although the officer’s initial question was a permissible request for information, the subsequent question—i.e., whether there was anything in the car the officer should know about—constituted a common-law inquiry, which was not justified because the officer did not have a founded suspicion that criminal activity was afoot. Although D admitted he was seeking a prostitute, the officer could not recall whether D made that admission before or after the officer asked if there was anything in the car. D’s nervousness and his presence in a high-crime area did not give rise to a founded suspicion.

·        People v Johnston (KA 12-01414) – In this appeal by the People, 4AD finds that the lower court erred by suppressing a handgun found on D’s person. A police officer observed D and another man walking from a residential driveway toward the parking lot of a public recreation area. The two men were dressed heavy for a mid-70 degree day, and their clothes were uncharacteristic of the hikers and bicyclists who typically visited the area. There had also been a rash of daytime burglaries in the vicinity. Initially, 4AD finds that the officer had an objective credible reason to approach the men and ask “what’s up guys?” When the officer approached, D slid down the side of a car away from the officer, and the other man placed his hand in his pocket. The officer then ordered the other man to remove his hand from his pocket, and when the man raised his hands, the officer saw the outline of a gun. The officer thereafter was justified in drawing his weapon, ordering both men to the ground, and frisking D. Because the officer’s actions were justified, the lower court erred in suppressing the gun found on D during the course of the frisk.

·        People v Jones (KA 10-02428) – 4AD finds that D’s conviction of first degree robbery was supported by legally sufficient evidence. The victim saw D and another man sitting in a pickup truck and drinking from a Grey Goose vodka bottle, which was partially wrapped in a paper bag. The victim spoke to D for a short while, and then D got out of the truck and struck the victim in the head with a hard object. D and the other man stole money, a cell phone, and Newport cigarettes from the victim’s pockets. They then left the scene. Twenty minutes later, police located D and the other man about a quarter mile away, still in the pickup truck. Following an investigation, police located the cell phone in the car, as well as the Newport cigarettes and the vodka bottle. The victim identified D in a showup. 4AD finds that although the victim did not see what D hit him with, the evidence was sufficient to show that D hit the victim in the head with the vodka bottle, which under the circumstances constitutes a dangerous instrument, and he did so in order to steal the victim’s property.

·        People v Madera (KA 11-00450) – 4AD finds that D’s conviction of first degree assault is not supported by legally sufficient evidence and modifies the conviction by reducing it to attempted first degree assault. Specifically, the evidence did not establish that the victim sustained a “serious physical injury” under Penal Law § 10.00 (10), because the injury did not create a substantial risk of death. The victim was shot, and the bullet exited and entered around his right nipple. It did not come near any vital organs. The wound did not require stitches and the victim stated that his pain level was low. Though a bullet fragment remained in the victim, there was no testimony showing the risk that fragment posed. The victim remained in the hospital for a relatively short time. 4AD finds that this evidence did not establish that the victim “faced a substantial risk of death”. The evidence, however, was sufficient to established attempted first degree assault.

·        People v McGillicuddy (KA 12-00530) – 4AD reverses D’s burglary conviction and grants a new trial because D was deprived of effective assistance of counsel due to a potential conflict of interest on the part of defense counsel. The conflict arose because the prosecutor sought to introduce into evidence a recorded conversation between D and defense counsel’s former client. In addition, when D was arrested, he made a statement regarding defense counsel’s former client. 4AD finds that the conflict bore a substantial relation to the defense, because defense counsel stated he could not cross-examine a police officer regarding D’s statement concerning the former client. Defense counsel also stipulated that it was D’s voice on the recording, and thus did not have to call his former client as a witness. The conduct of the defense was thus affected by the conflict of interest.

·        People v Vanalst (KA 12-01643) – In this appeal by the People, 4AD finds that the lower court erred in dismissing the indictment, because it applied the incorrect legal standard in determining whether the indictment was supported by legally sufficient evidence. The lower court did not find that the evidence before the grand jury was insufficient, but instead concluded that the police were unlawfully pursuing D when he allegedly dropped drugs. The court’s determination should have been limited to whether there was competent evidence to establish a prima facie case. 4AD notes that even if competent evidence is later rendered inadmissible following a suppression hearing, the legal sufficiency of the indictment is not undermined.

Family Court Case Summaries:

·        Matter of Howell v Lovell (CAF 12-00768) – In this custody matter, the mother contended that Family Court should not have transferred primary physical placement of the parties’ child to the father. 4AD disagrees, primarily based on the mother’s violation of a prior order that required the mother to transport the child to the father for visitation during Christmas. The father filed a modification petition following the mother’s failure to transport the child on or before Christmas 2011. 4AD notes that while the prior order did not specify the exact date the mother was to transport the child, the evidence established that the mother understood that the transfer was to occur on Christmas Day. Further, although the lower court’s order did not address any other factors concerning the child’s best interest, there was sufficient evidence in the record for 4AD to make that determination itself. In addition to the mother’s interference with the father’s visitation, 4AD finds that the change in primary physical custody was justified by the fact that the child would reside with her two half-siblings, the father has a suitable residence, and the child is comfortable in both parents’ homes.

·        Matter of Mason v Mason (CAF 11-02089) – In this custody matter, the mother argued that the Attorney for the Child (AFC) improperly advocated a position that conflicted with the express wishes of the child because the AFC did not state the basis for advocating the contrary position. 4AD rejects this argument, first noting that it is unpreserved, and further explaining that an AFC may advocate a contrary position under two circumstances: (1) if the AFC is convinced the child lacks the capacity for knowing, voluntary, and considered judgment, or (2) if following the child’s wishes would likely result in a substantial risk of imminent, serious harm to the child. If either of these circumstances is present, the AFC is required to inform the court of the child’s wishes, and the AFC did so here. 4AD also finds that the record here supported a finding “that the child lacked the capacity for ‘knowing, voluntary and considered judgment’”.