Stats & Case Summaries - Fourth Department Decisions Released on March 22, 2013

Criminal Case Summaries:

·        People v Evans (KA 10-01056) – 4AD reverses D’s conviction of second degree assault because it is against the weight of the evidence. D was convicted of that crime when a sawed-off shotgun he was holding misfired and injured another person. D and others were drinking alcohol at a park in Syracuse. The People contended that D acted recklessly because he brought the loaded shotgun to the park, he handled it in close proximity to others, and he pointed it at another person while drinking alcohol. 4AD finds none of these facts was established beyond a reasonable doubt. There was no evidence that D had brought the gun to the park, knew it was loaded, or knew of and consciously disregarded the risk that it might misfire. There were three witnesses to the incident, and not one of them saw D point the gun at the victim. The only person who saw D pick up the gun testified that as D “was picking it up it just went off.” While there was proof of a serious physical injury and that a deadly weapon was used, there was no proof that D acted recklessly.

·        People v Johnson (KA 12-00361) – In this SORA case, 4AD modifies D’s risk level from three to two, because the prosecutor did not prove, by clear and convincing evidence, that points were warranted under risk factor 7—relationship with the victim. Specifically, the prosecutor did not establish that D “established or promoted” his relationship with the victim, who he met at a party, for the primary purpose of victimizing her.

·        People v Montgomery (KA 09-00153) – 4AD reverses D’s drug possession conviction because the indictment was rendered duplicitous by the proof presented at trial. Police executed a search warrant on a house after observing D conduct an apparent drug transaction. The search yielded several baggies of cocaine from the entryway of an unoccupied apartment, and a second uncut quantity of cocaine from an occupied apartment. D was indicted on one count of possession, but neither the indictment nor bill of particulars specified which cocaine D was charged with possessing. The People, however, stated before trial that the grand jury found the evidence regarding the uncut quantity insufficient. At trial, the prosecutor presented evidence of D’s constructive possession of both amounts of cocaine. This rendered the indictment duplicitous, and it could not be known whether the jury reached a unanimous verdict with respect to D’s possession of the baggies of cocaine, as opposed to the uncut cocaine.

·        People v Woods (KA 08-02465) – 4AD finds that the lower court failed to consider the appropriate factors before permitting the jury to hear D’s grand jury testimony, which included references to D having sold drugs, having been in prison for bank robbery, and being on parole. Such references in otherwise admissible grand jury testimony should be redacted unless they are necessary to a full comprehension of the directly relevant portions. Here, the lower court considered only whether D’s testimony was voluntary. But, 4AD finds that the error was harmless.

Family Court Case Summaries:

·        Matter of Mercado v Frye (CAF 11-01763) – In this custody proceeding, 4AD finds that the lower court had continuing jurisdiction over the matter pursuant to Domestic Relations Law § 76-a. Even though the child had been living with the mother in California, the initial custody determination was made in New York, and there was evidence of a “significant connection” by the child with NY. Specifically, the father exercised parenting time in NY, the child’s extended family lived in NY, and the child’s dental and medical providers are located in NY. 4AD also finds that for these reasons, and because NY courts were more familiar with the parties than California courts, NY was not an inconvenient forum.

·        Matter of Nelson v Morales (CAF 11-02203) – In this custody proceeding, the mother appealed from a modification order granting custody to the father. The father had filed a prior modification petition in 2007, which was denied after a hearing. The mother argued that the Family Court erred by considering her pre-2007 changes in residence in determining whether a change of circumstances had occurred since the last modification proceeding. 4AD disagrees, and finds that this evidence was properly considered as background information, to determine the significance of the mother’s post-2007 change in residence.