Stats & Case Summaries - Fourth Department Decisions Released on April 26, 2013

Criminal Case Summaries:

·        People v Boyson (KA 11-01343) – D argued that the lower court erred in denying his motion to suppress evidence. 4AD agrees, in part, finding that the drugs found on D’s person should have been suppressed, because police arrested D inside his house without a warrant. The search of D’s person was not incident to a lawful arrest, and was thus illegal. 4AD, however, finds that the lower court properly denied suppression of a larger quantity of drugs found in D’s home. Those drugs were found pursuant to a warrant that was issued because of independent information, and the search was not tainted by the unlawful arrest and search of D.

·        People v Coles (KA 10-02301) – D argued that the lower court erred in denying his motion to suppress drugs, and statements he made, following a search of his house. 4AD agrees that exigent circumstances were not present, and police unlawfully entered D’s home without a warrant. Earlier in the day, D made two drug sales to an undercover officer—one inside his home, the other outside the home. D was arrested while driving back to his house, and about 45 minutes later police entered the home through a window. While police had evidence that there was contraband inside the home, they lacked any evidence that the contraband would be destroyed, or that police might be harmed while guarding the home. Police had no evidence that any accomplices might be inside the home. 4AD reserves decision and remits the matter for the lower court to consider the People’s argument that the independent source doctrine applies.

·        People v Conklin (KA 12-02083) – In this appeal by the People, 4AD reverses the lower court’s order dismissing the indictment pursuant to CPL 210.35. 4AD finds that the prosecutor’s conduct at the grand jury did not compromise the integrity of the grand jury. D testified before the grand jury, and on cross-examination, the prosecutor asked D if he was aware that the complainant made a recording of the underlying incident. When D said he was, the prosecutor asked him if he was still willing to stand by his testimony that he did not raise his voice during the incident. The recording was not admitted into evidence, and the complainant was never asked whether she made a recording. 4AD finds that in the absence of any evidence that the prosecutor asked this question in bad faith, the lower court erred in finding that the prosecutor engaged in misconduct that required dismissal of the indictment.

·        People v Brandi E. (KA 09-01366) – In her first trial, D was acquitted of two counts of first degree assault (depraved indifference assault), and convicted of one count of assault and one count of endangering the welfare of a child. The convictions were later vacated. Prior to the second trial, defense counsel moved to preclude evidence of the two assaults of which D was acquitted. The lower court denied the motion. 4AD finds that D has not met her burden of showing that collateral estoppel barred evidence of those two assaults. While the jury may have found that D’s conduct did not rise to the level of first degree assault, it could have found that those acts constituted endangering the welfare of a child. The evidence was thus admissible at the second trial because D has not shown that the first jury necessarily resolved that issue in her favor.

·        People v Forsythe (KA 10-01359) – In an earlier proceeding, D was convicted of drug possession charges, and the convictions were upheld by 4AD. D then brought a writ of error coram nobis application, which was also denied. Here, D filed a CPL 440 motion, arguing that he was denied effective assistance of counsel. In the earlier proceeding, the People filed an interlocutory appeal after the indictment was dismissed. D was not given notice of his right to counsel on that appeal, nor did counsel file a responding brief. 4AD now converts D’s CPL 440 motion into a coram nobis application, vacates its prior orders, and determines that it will consider, de novo, the People’s interlocutory appeal.

·        People v Kahley (KA 08-02494) – D argued that the lower court failed to comply with CPL 310.30 and People v O’Rama, because it did not advise him of the contents of a jury note. The People responded that it could be inferred that CPL 310.30 was complied with off the record. 4AD declines to “resolve the issue based on inference and conjecture”, and remits the case to the lower court for a reconstruction hearing on the issue. Although the note requested a readback of the testimony of certain witnesses, 4AD finds that it cannot be determined whether the jury requested the “entire testimony” of those witnesses. If the jury requested only a portion of the testimony, defense counsel could have participated in the determination of what portions should have been read back. The dissent (Smith, J.P and Peradotto, J.), disagrees that a reconstruction hearing is necessary. Because it can be inferred that the jury requested “the entire testimony of various witnesses”, the jury note was not substantive in nature, and did not implicate the lower court’s core responsibilities under CPL 310.30. As such, D’s contention required preservation, which was not present here.

·        People v Kirkland (KA 11-01835) – 4AD finds that D’s contention that the lower court erred by imposing a restitution collection surcharge of 10% required preservation. While 4AD has previously relied on the illegal sentence exception to CPL 470.05 (2) to reach that issue, it now finds that more recent Court of Appeals cases require restitution issues to be preserved (see e.g. People v Horne, 97 NY2d 404, 414). The dissent (Fahey and Sconiers, JJ.) disagree that preservation is required.

Family Court Case Summaries:

·        Matter of Anna B. (CAF 12-00562) – The father in this case filed a petition to modify or vacate an order of protection entered pursuant to Family Court Act § 656. The lower court dismissed the petition, on the ground that the father did not have standing, because his parental rights were terminated. 4AD reverses, finding that the father has standing to challenge the order of protection. Although the order terminating the father’s parental rights would prohibit him from seeking access to his children, the only relief he is presently seeking is vacatur or modification of the order of protection, which was entered separately from the order terminating his parental rights.

·        Matter of Brown v Divelbliss (CAF 12-00555) – In this visitation proceeding, the father, who is incarcerated, sought visitation with his 9-year-old daughter. One visit occurred after the petition was filed. At a subsequent court appearance, the AFC told the court that the child did not wish to have any further visitation, and that a school counselor said that visitation would not be “preferable”. The mother’s attorney also told the court that the child had told the mother that she did not want to visit the father. The court then dismissed the petition. 4AD reverses, finding that the record was not sufficient to determine whether visitation would be detrimental to the child’s welfare. Specifically, no evidence was presented to rebut the presumption that visitation was in the child’s best interest. While the AFC and the mother’s attorney made statements to the court, no sworn testimony or other evidence was offered.

·        Matter of Nicholas C. (CAF 11-01532) – In this neglect proceeding, 4AD reverses the lower court’s neglect adjudication because it was based on insufficient evidence. The evidence offered in support of the petition consisted almost entirely of inadmissible hearsay—that is, statements made by the mother to a police officer and DSS caseworkers. The hearsay statements were not admissible against the father unless they fell within an exception to the hearsay rule. 4AD finds that, contrary to the determination of the lower court, the statements were not admissible pursuant to Family Court Act § 1046 (a).

·        Matter of O’Connell v O’Connell (CAF 12-01649) – In this custody case, 4AD affirms the lower court’s order modifying a prior custody order, and awarding physical custody of one child to the father, and the other child to the mother. The mother previously had physical custody of both children. 4AD finds that a change of circumstances was established because the mother’s relationship with one of the children had become strained, and the mother was not able to effectively communicate with that child. While siblings should generally not be split between parents, this was one of those rare cases where the breakdown in the relationship between the parent and child required a change of custody “applicable only as to the best interests of one of [two] children.”