Criminal Case Summaries:
·
People
v Lostumbo (KA 12-00106) – 4AD modifies D’s conviction by reducing four
counts of reckless endangerment in the first degree (depraved indifference) to
reckless endangerment in the second degree. The charges arose when D led police
officers on a 40-minutes chase in a dump truck. 4AD finds that D’s flight in
the dump truck did not evince a depraved indifference to human life, even if he
created a grave risk of death to members of the public. 4AD specifically relies
on People v Prindle (16 NY3d 768) and
People v Jean-Philippe (101 AD3d
1582), in which the Court of Appeals and 4AD, respectively, found that similar
conduct—leading police on a high speed chase—did not demonstrate depraved
indifference.
·
People
v Lukens (KA 10-01086) – 4AD finds that D’s conviction of grand larceny
in the fourth degree was not supported by legally sufficient evidence because
the proof did not establish that he stole property that exceeded $1,000 in
value. A surveillance video admitted in evidence showed that D left a store
with merchandise in a shopping cart, but the only items that were visible in
the cart were 2 bags of dog food. The evidence also showed that about $1,900 of
“pet containment” merchandise was missing from the store, but no such items
were visible in the video of D leaving the store. 4AD finds that the jury could
only speculate, rather than infer, that D stole the “pet containment” items,
and modifies the grand larceny conviction to petit larceny.
·
People
v Motzer (KA 12-00838) – D was convicted of second degree rape, second
degree criminal sexual act, second degree criminal sale of marijuana, and
endangering the welfare of a child. 4AD finds that D’s sentence is harsh and
excessive, and modifies it to the extent of ordering that all the sentences run
concurrently.
·
People
v Noah (KA 12-01879) – 4AD reverses D’s guilty plea because the lower
court erred in refusing to suppress physical evidence and statements, which
were the product of an illegal search and seizure. An anonymous 911 caller
informed police that a man—“possibly Hispanic”, late 20s, 300 pounds, average
height, shaved head, and wearing a burnt orange jacket—was in possession of a
gun and had just left a bar. Police arrived in the area and a bar patron
pointed toward D, who was in front of a building 3 doors down from the bar. D
was a 31-year-old non-Hispanic man, of lesser weight, with a full head of hair,
and a long dark coat. The officer brought the man toward a parked car, had him
put his hands on top of the car, and asked to search him. D permitted him to do
so, and the officer found physical evidence. 4AD finds that because of the
inconsistency between the 911 caller’s description and D’s appearance, the
officer did not have reasonable suspicion to detain D, and D’s consent to
search was therefore a product of an unlawful detention. At most, police had a
common-law right to inquire.
·
People
v Rios (KA 11-01825) – 4AD reverses D’s conviction for grand larceny in
the fourth degree, finding that the verdict with respect to that count is
against the weight of the evidence. When D broke up with his girlfriend, she signed
over the title to a Jeep to him. D left her house, but shortly thereafter he
returned, in apparent violation of their agreement that D would leave and never
return. She told D that the “deal was off” and, without his knowledge, took the
title out of the Jeep. D was later arrested for DWI and grand larceny of the
Jeep. 4AD finds that the People failed to disprove, beyond a reasonable doubt,
D’s claim of right defense—that is, that D had a “subjective, good faith”
belief that he had a claim of right to the Jeep.
Family Law Case Summaries:
·
Matter
of Roman E.A. (CAF 12-00301) – 4AD affirms an order terminating the
mother’s parental rights on the ground of mental illness. A psychologist
appointed by Family Court testified that the mother had schizophrenia, paranoid
type, and that her prognosis was bleak, due to her lack of insight into her
mental illness and the need for treatment. The psychologist further testified
that if the child were returned to the mother he would be at imminent risk of
harm.
·
Matter
of Cormier v Clarke (CAF 11-02304) – In this visitation matter, the
paternal grandmother, who is the subject child’s primary physical custodian,
sought to suspend visitation between the child and the incarcerated mother. The
lower court refused to suspend visitation, but reduced the frequency thereof.
4AD affirms and, relying on the Court of Appeals’ recent decision in Matter of Granger v Misercola (__ NY3d
__ [April 30, 2013]), first notes that there is a presumption that visitation
with a noncustodial parent is in the child’s best interest, even if that parent
is incarcerated. Moreover, visitation should not be suspended unless there is
proof that visitation would be detrimental to the child’s welfare. Here, the
grandmother failed to offer any such proof, and thus failed to overcome the
presumption in favor of visitation.
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