Stats & Case Summaries - Fourth Department Decisions Released on June 28 and July 5, 2013

Criminal Case Summaries:

·        People v Ennis (KA 10-01378) – 4AD finds that the trial court properly admitted testimony from the victim on redirect examination regarding an uncharged act of sexual touching. The act was admissible “to complete the narrative of [the] events charged in the indictment,” and to provide “necessary background information”. Although the trial court had ruled before trial that this evidence was inadmissible, defense counsel opened the door during cross-examination of the victim.

·      People v Amir W. (KA 10-00553) – 4AD finds that D should have been adjudicated a youthful offender. D shot a gun at an empty house. The day before, he was brutally assaulted by the occupants of the house, and wanted to send a message. D told police he knew that the attackers would not be home. 4AD notes that D was 16 years old at the time, had a difficult upbringing, had no criminal record, cooperated with police, and expressed remorse.  Both the Probation Department and the Center for Community Alternatives recommended that D should be afforded youthful offender status. “We conclude that despite defendant’s difficult upbringing, he has the potential to lead a law-abiding life, and we deem it appropriate to modify the judgment . . . by adjudicating him a youthful offender”.

·       People v Tuff (Motion No. 1331/11) – 4AD grants D’s motion for a writ of error coram nobis due to appellate counsel’s failure to argue that the jury’s verdict was against the weight of the evidence.

·        People v Burroughs (KA 11-01761) – 4AD modifies D’s conviction by reversing several counts of sodomy and rape. The lower court erred by refusing D’s motion to dismiss these counts on the ground that they were time-barred. The crime underlying the charges occurred in 2002. D’s identity as the perpetrator was not then known, but his DNA was obtained in 2003 in connection with an unrelated arrest. He did not, however, become a suspect until 2008, when the Department of Criminal Justice Services notified police that D’s DNA matched the perpetrator’s. D was not arrested for another 2 years. 4AD first notes that the lower court properly refused to dismiss the charge of first degree rape, because the Legislature abolished the statute of limitations for that crime in 2006, before the expiration of the previous 5-year statute of limitations. That amendment to the statute, however, did not apply to sodomy in the first degree. 4AD notes that this appears to have been an oversight, which was corrected in 2008. But, by the 2008 amendment to the statute of limitations, which abolished the limitations period for sodomy as well, the limitations period for D’s crimes had run, and could not be revived.

·        People v Cook (KA 11-00065) – In this People’s appeal, 4AD finds that the lower court erred by suppressing certain physical evidence. A search warrant was issued after D was suspected of producing counterfeit checks. The warrant authorized a search of a certain address, which it described as a “business store front style building that has a predominately glass front”. The warrant was executed, and officers located some evidence “in a series of interconnected rooms located behind the storefront area”. 4AD finds that the warrant described the place to be searched with sufficient particularity. Although a warrant authorizing a search of a multi-unit dwelling must describe the specific unit to be searched, here, the interconnected rooms were not separate units, but instead were part of the single rental unit at the address described in the warrant. 4AD also notes that the “business store front style building” language was meant to describe the address to be searched, not to limit the search to the store front area.

·        People v McFarland (KA 11-00523) – D moved to vacate his judgment of conviction for, among other things, second degree murder, on various grounds, including newly discovered evidence. 4AD finds that the lower court erred by dismissing the motion without holding a hearing. Years after D’s direct appeal was exhausted, his appellate attorney received an affidavit from an individual to whom a third party had confessed to killing the victim. That individual averred that he had tried to tell authorities about this third party on two occasions. 4AD concludes that there is a question of fact as to whether the third party’s statements would be admissible at trial as declarations against penal interest, and remands the matter for a hearing on that issue.

·        People v Webb (KA 12-01559) – 4AD finds that D’s conviction for first degree criminal contempt was not supported by legally sufficient evidence. An order of protection directed D to refrain from communicating by telephone with his ex-girlfriend, who was the mother of his child. 4AD finds that although D made phone calls to the ex-girlfriend, the purpose of those calls was not to “harass, annoy, threaten or alarm her, with no purpose of legitimate communication”. Instead, the only inference that can be drawn from the evidence is that D called the girlfriend to discuss child support and visitation issues. Nevertheless, D intentionally disobeyed the order of protection by making four telephone calls, and the evidence was legally sufficient to support D’s conviction of second degree criminal contempt.

Scudder, P.J., and Peradotto, J. dissent and contend that the evidence was sufficient to infer that D made several phone calls with the intent to harass, annoy, threaten or alarm. D made 5 calls within 8 days, and 3 of those calls occurred on a single day within 1 hour. D also called the ex-girlfriend a “bitch” and a “whore”, stated he had no intent to pay child support, and threatened to embarrass her in court proceedings. The ex-girlfriend also testified that each time D called, she told him not to call her again, and that she found the calls to be annoying and harassing.

 

Family Law Case Summaries:

·        Matter of Kennedy v Kennedy (CAF 12-00601) – In this custody matter, 4AD reverses the Family Court’s award of custody to the mother. 4AD finds that the lower court relied on a flawed expert evaluation, which was of limited utility, because it highlighted challenges that the father faced, but downplayed similar ones faced by the mother. Further, relying on Matter of Michael B. (80 NY2d 299), 4AD notes that since the Family Court’s order, the mother’s employment and housing circumstances have changed, and a reevaluation of the children’s best interests is necessary.

·        Matter of Manning v Sobotka (CAF 12-00776) – In this child support matter, 4AD reverses the Family Court’s order, concluding that the Family Court should not have confirmed the Support Magistrate’s order, which erroneously found the father in default. The father’s attorney was present before the Magistrate on the date of the hearing, and had previously requested an adjournment of the same. Even though the Magistrate stated that she had granted an adjournment, she began questioning petitioner about the father’s failure to pay support. 4AD finds that the finding of default was erroneous, and that the court’s questioning of the petitioner “did not constitute the requisite fact-finding hearing necessary to develop a factual basis for a finding of willful violation”.

·        Matter of Brown v Patterson (CAF 11-01910) – In this visitation/custody matter, 4AD reverses the lower court’s determination with respect to visitation. The lower court erred by relieving respondent’s assigned counsel after the petitioner amended its petition, which initially sought custody, to one seeking only visitation. While the present appeal was pending, 4AD held in Matter of Wright v Walker (103 AD3d 1087) that respondents in visitation matters are entitled to an assigned attorney.

·       Matter of Dubiel v Schaefer (CAF 12-00645) – In this custody/visitation matter, 4AD modifies several ordering paragraphs regarding the visitation schedule. First, 4AD strikes that paragraph permitting the father, when practicable, to transport the children to school on a daily basis. 4AD finds that this paragraph is not in the children’s best interests because it creates instability and is likely to increase tension between the parties, due to the almost daily contact. Among other things, 4AD finds that the ordering paragraph regarding joint decision making for “major decisions” with respect to after-school child-care is “ambiguous, confusing, and unnecessary”. 4AD explains that the term “major decisions” is not clear, and each parent should be responsible for childcare decisions during his or her parenting time.