Stats & Case Summaries - Fourth Department Decisions Released on June 14, 2013

Criminal Case Summaries:

·        People v Arnold (KA 06-03041) – 4AD finds D’s argument that the lower court failed to comply with People v O’Rama and CPL 310.30 with regard to the handling of a certain jury note is unpreserved for review. Although the court failed to read the note to counsel outside the presence of the jury, it read the note verbatim in the presence of the jury, defense counsel, and D. Not all departures from the procedures set forth by the Court of Appeals in O’Rama constitute mode of proceedings errors, and here, where counsel knew the contents of the note and the court’s intended response, an objection was required to preserve the issue.

·        People v Lemery (KA 12-02387) – 4AD finds that the lower court properly precluded expert testimony regarding the effects of chemotherapy treatments on D’s mental capacity. D wanted to introduce such testimony to show that he had a diminished capacity that prevented him from understanding what he was saying during an inculpatory conversation with the victim. 4AD finds that evaluating the recorded conversations was “within the ken of the typical juror”, and in any event, the expert was unable to testify to a reasonable degree of medical certainty that the cause of D’s purported mental deficits were the chemotherapy treatments.

·        People v Robinson (KA 04-02820) – 4AD reverses D’s conviction, upon a plea of guilty, of second degree murder, because D’s statements during the plea colloquy casted significant doubt upon his guilt, and the lower court failed to conduct a further inquiry. D stated during the colloquy that he acted “recklessly” when he stabbed his wife during a struggle. 4AD finds that this statement suggests that D did not act with depraved indifference to human life. Under these circumstances, the lower court should have asked further questions to ensure that D’s guilty plea was knowing, voluntary, and intelligent.

·        People v Sigl (KA 09-01149) – 4AD rejects D’s argument that his prosecution for burglary and sodomy was time-barred. Under CPL 30.10, the statute of limitations is tolled where the defendant’s whereabouts are unknown and he or she cannot be found with the exercise of reasonable diligence. Here, D’s identity as the assailant could not be determined until his DNA, which was obtained in connection with an unrelated arrest in 2007, was matched to semen found at the crime scene.

·        People v Stevenson (KA 12-00470) – 4AD reverses D’s conviction, upon a guilty plea, of first degree rape, because he pled to a jurisdictionally defective superior court information (SCI). D was arraigned on a felony complaint for rape with respect to one victim, but after he waived indictment, the SCI was amended to charge D with the rape of a second victim. D pled guilty to rape with respect to the second victim. 4AD first notes that D’s contention that the SCI was jurisdictionally defective does not require preservation and survives the valid waiver of appeal. 4AD then concludes that the SCI was defective, because D was not being held for action of a grand jury on the charge in the amended SCI because “it was not an offense charged in the felony complaint or a lesser-included offense of an offense charged in the felony complaint”.

·        People v Turner (KA 11-01156) – D argued that she did not knowingly, voluntarily, and intelligently plead guilty because the lower court failed to advise her that her sentence would include a 5-year period of post-release supervision—i.e., the lower court committed a Catu error. 4AD finds that the argument is not preserved. While Catu errors generally do not require preservation, 4AD finds that here, D was informed of the term of PRS before sentence was imposed. D then confirmed that she had the opportunity to discuss the term of PRS with counsel, and further indicated that she still wished to go ahead with sentencing. Under these circumstances, 4AD finds that D could have sought the relief she  now seeks from the lower court, and thus preservation was required.

Sconiers and Martoche, JJ., dissent, and conclude that preservation was not required. The dissent finds that D was not informed of the PRS component of the sentence at “the outset of the sentencing proceeding”. Instead, she was not made aware of the PRS component until moments before sentence was imposed, and under such circumstances, preservation is not required.

Family Law Case Summaries:

·        Matter of Cole v Nofri (CAF 12-00796) – In this custody matter, 4AD reverses the lower court’s order insofar as it dismissed the mother’s modification petition on the basis that the mother did not establish a change of circumstances. 4AD finds that the mother established a change of circumstances, and that it would be in the best interests of the child to award custody to the mother. The mother and father both remarried since the original custody trial, and both parties have had two additional children. The father also has two step-children who are older than the subject child. The subject child has felt isolated in the father’s home, has indicated a strong desire to live with the mother, and the child’s anxiety has progressively worsened to the point that the child has expressed thoughts of harming the father and his family. 4AD specifically notes that the child’s extreme anxiety renders this case unique, and warrants a change in custody, particularly in light of the mother’s superior ability to provide for the child’s emotional needs.

Martoche, J., dissents, finding that there is a sound and substantial basis for the Family Court’s dismissal of the mother’s modification petition. The dissent notes that the mother has previously sought modification of the original custody order for the same reasons. In 2006, a modification petition was dismissed. “Clearly, the mother has a pattern of alleging that the child is suffering from emotional disturbances as a result of living with the father.” In addition, the mother was aware of the child’s anxiety issues prior to the initial custody determination. 

·        Matter of Rulinsky v West (CAF 11-02192) – In this custody/visitation matter, 4AD affirms the lower court’s order, which terminated visitation between the child and the incarcerated father. The mother established a change in circumstances. Since the prior order, the child has matured and has indicated a strong desire not to visit the father. Also, the lower court found that the father was using visitation to attempt to reconcile with the mother, rather than to interact with the child. Although the lower court did not make a determination as to whether the presumption in favor of visitation was rebutted, 4AD finds sufficient evidence to enable it to make that determination. Specifically, the father did not have much prior contact with the child and the child has expressed a desire not to visit her father.