Stats & Case Summaries - Fourth Department Decisions Released on March 15, 2013

Criminal Case Summaries:

·        People v Alexander (KA 06-01240) – 4AD finds that even assuming that the lower court erred by designating the second-drawn juror as the foreperson after the first juror asked to be relieved of that responsibility, the error did not constitute a mode of proceedings error.

·        People v Brown (KA 08-02511) – In this assault case, D argued that defense counsel was ineffective for stipulating to the admission of a 911 call made by the victim’s roommate, because it contained inadmissible hearsay that bolstered the victim’s testimony and prejudiced the defense. 4AD agrees that counsel should not have stipulated to the recording’s admission, but finds that the single error was not sufficiently egregious to deprive D of a fair trial. 4AD notes that the victim had known D before the incident, and “unequivocally identified” him as the assailant at trial.

·        People v Coleman (KA 09-01157) – D argued that his guilty plea was not knowing, voluntary, and intelligent. 4AD finds that although this argument was not preserved, D’s statements during the plea colloquy “cast significant doubt upon his guilt” of first degree criminal contempt, and this case thus fell within an exception to the preservation requirement. Criminal contempt, under PL § 215.51 (c), requires, among other things, that the defendant has violated an order of protection issued pursuant to the Domestic Relations Law, and has been convicted of second degree criminal contempt for such a violation within the preceding 5 years. D’s statements at the plea proceeding cast doubt about whether D violated an order of protection issued under the applicable statute, but the lower court did not question D regarding the basis upon which the order of protection was issued, or the nature of his prior criminal contempt conviction. Because the court had a duty to inquire further and failed to do so, reversal of the plea was required.

·        People v Green (KA 11-00973) – In this SORA case, D argued that he should not have been assessed 20 points under risk factor 6, because the People did not establish that the victim of the underlying offense suffered from a “mental disability”. The victim was mildly mentally retarded. But this by itself did not establish that she was unable to consent to sexual activity, and proof of more than mental retardation was required to establish incapacity. 4AD finds, however, that an upward departure was warranted from level two to level three.

·        People v Haynes, Jr. (KA 11-00490) – 4AD modifies D’s convictions of first degree burglary and second degree assault because there was insufficient evidence of “physical injury”. The victim was struck by the defendant’s companion with a baseball bat in the arm, neck, and head. The victim testified that he sustained a bruise on his arm that did not last long, and photographs of his arm and neck did not depict any noticeable bruising. The victim also testified that he sustained a lump on his head, but that also was not visible in a photograph admitted into evidence. Further, medical personnel observed the victim and determined his injuries were not serious. The victim testified that the injury hurt only a little bit, and the pain lasted no more than a week. 4AD concludes that under the circumstances the victim did not sustain “physical impairment or substantial pain”.

·        People v Wilkins (KA 11-00190) – 4AD vacates D’s sentence for second degree criminal possession of a weapon. The lower court advised D that his sentence on that charge necessarily included a 5 year period of post-release supervision. A shorter period, however, was authorized. 4AD thus remits for resentencing. 4AD also reverses D’s conviction of third degree criminal possession of a weapon, and dismisses that count, because it was a lesser inclusory concurrent count of second degree criminal possession of a weapon.

Family Court Case Summaries:

·        Matter of Davis v Bond (CAF 12-00553) – In this child support matter, 4AD reverses the order because the court erred in revoking the suspension of the jail sentence recommended by the Support Magistrate without giving the father an opportunity to be heard and present witnesses. The father previously admitted to violating a support order. The Support Magistrate suspended sentence on the condition that the father did not miss two consecutive support payments. A few months later, the Family Court took an oral admission of nonpayment from the father’s attorney, confirmed the Support Magistrate’s prior order, and sentenced the father to 4 months in jail. 4AD finds that the Family Court was without authority to completely dispense with the hearing required under Family Court Act § 433 (a). Neither a colloquy with a respondent or his attorney is sufficient to constitute the required hearing.