Stats & Case Summaries - Fourth Department Decisions Released on July 19, 2013

Criminal Case Summaries:

·        People v Baxter (KA 10-01043) – 4AD reverses because the lower court erred by refusing to issue an order to produce for an incarcerated witness. Under CPL 630.10, an order to produce such a witness may be issued when the defendant demonstrates “reasonable cause to believe that such person possesses information material” to the proceeding. Here, 4AD finds that D made such a showing and the lower court abused its discretion by refusing to issue the order. The witness, who spoke to D shortly before he was arrested and was present at the time D was arrested, might have offered testimony that supported D’s version of events. 4AD also notes that, in denying D’s request, the lower court improperly relied on a letter sent by D to the witness, but which never actually reached the witness. It was unclear whether the letter was an attempt to suborn perjury, or instead an “inartful but truthful reflection of [D’s] own version of events”.

Smith, J.P., and Valentino, J., dissented. The dissent argued that a defendant must not only show that the incarcerated witness would provide “material” testimony, but also that this testimony would be favorable. “Under similar circumstances, when seeking an adjournment to call a witness, a defendant must make an offer of proof establishing that the testimony of the witness ‘would be material and favorable to the defense’”. Here, D failed to make an offer of proof, and thus did not make the necessary showing.

·        People v Coger (KA 12-01646) – In this SORA matter, 4AD modifies D’s risk level to II from III because the prosecution failed to prove that D had a history of alcohol and drug abuse. Fifteen points were assessed for this risk factor because the probation department had previously identified D’s substance use as problematic, and noted that he refused treatment. 4AD explains that there is no indication that D was ever screened for substance abuse issues or why treatment was recommended, and there is very little information about any such abuse. Under the circumstances, the case summary was insufficient to establish this risk factor by clear and convincing evidence. 4AD also notes that this risk factor was not established by evidence that D had previously been convicted of sale of marijuana and seventh degree criminal possession of a controlled substance. Nor was it established by D’s admission that he was intoxicated during a prior incident, which resulted in a rape charge that that was eventually dismissed.

·        People v DeLee (KA 09-02479) – 4AD reverses D’s conviction for first degree manslaughter as a hate crime because the verdict was repugnant. D was acquitted of first degree manslaughter. Manslaughter as a hate crime contains all the elements of manslaughter, and his conviction of the former crime was thus inconsistent with his acquittal of the latter. Although defense counsel raised this issue before the jury was discharged, the lower court failed to direct the jury to reconcile the verdict.

Peradotto, J., dissents and finds that “the jury’s verdict is reasonable and logical based upon the elements of the crimes as charged to the jury”. According to the dissent, the record demonstrates that the jury was convinced that the shooting was a hate crime. Moreover, the jury should have been instructed that manslaughter is a lesser included offense of manslaughter as a hate crime, and that if they found D guilty of the hate crime, they did not need to consider ordinary or plain manslaughter. Since the jury technically did not have to consider the lesser included offense, it was reasonable for the jury to find D guilty of only the hate crime.

·    People v Hayhurst (KA 12-00683) – After he violated probation, D was sentenced to 7 years imprisonment for his conviction of attempted second degree burglary. 4AD finds that the sentence is harsh and severe under the circumstances and reduces it to 3 ½ years.

·     People v Larkins (KA 12-00108) – 4AD reverses D’s conviction for, among other things, first degree robbery because the lower court erred in admitting Molineux evidence of D’s commission of a similar attempted robbery a few days before the alleged robbery underlying the present case. D had not yet been tried for the prior attempted robbery. The lower court ruled that the prior crime evidence was admissible as a matter of law, and thus failed to find that D’s identity and modus operandi with respect to the prior crime were established by clear and convincing evidence. 4AD finds that the case before the jury “became a prohibited ‘trial within a trial’”.

·        People v Schrok (KA 11-00358) – D appealed from an order denying his motion under CPL 440 to vacate the judgment of conviction. D argued, in part, that a mode of proceedings error occurred when the Sheriff, rather than the court, made him wear a stun belt during a portion of his trial. 4AD finds that “the limited use of the stun belt in this case, at the direction of the Sheriff and not the court, [did not] irreparably taint[] defendant’s entire trial and therefore [did not] constitute a mode of proceedings error.”

Fahey, J., dissented. The dissent argued that the error was a mode of proceedings error. “[T]he usurpation of the court’s power to determine whether to require defendant to wear a stun belt is no different from the delegation of court powers found to have constituted mode of proceedings error.”

 
Family Law Case Summaries:

·        Matter of Lara v Sullivan (CAF 12-02057 & 12-02084) – In this custody matter, 4AD modifies the lower court’s order by granting the father’s petition for modification and awarding him custody of the child. 4AD initially notes that the lower court properly found that the mother had violated an earlier order by moving out-of-state with the child, without permission from either the father or the court. Next, the lower court’s decision to maintain custody of the child with the mother was not supported by a sound and substantial basis in the record. 4AD finds that although the lower court stated it was doing so in its order, it failed to draw the strongest inference against the mother based on her failure to appear at the hearing. The court further erred by failing to give any weight to the 14-year-old child’s preference to live with the father. Among other things, the mother failed to provide for the child’s emotional and intellectual well-being, the mother was financially worse off than the father, the child was afraid of the mother, and the mother interfered with the relationship between the child and the father.

·        Matter of Cayden L.R. (CAF 12-01060) – 4AD affirms an order terminating the mother’s parental rights to the subject child. DSS made diligent efforts to reunite the mother and the child by offering various service, including consultations with a child psychologist, and offered the mother visitation with the child. Although the mother participated in the offered services, the lower court found that the mother failed to plan for the future of the child.

Lindley, J., dissents. The dissent explains that DSS did not make diligent efforts at reunification, because those efforts were based on an initial misdiagnosis that the mother was mildly mentally retarded. The mother was later diagnosed with bipolar 2 disorder. This diagnosis was made 5 years after the child was removed from the mother’s care, and 5 months after the underlying petition was filed by DSS. The Court of Appeals has required that diligent efforts must be closely tailored to the individual circumstances of the parent. Here, the services offered by DSS were geared toward the misdiagnosis of mild mental retardation. Furthermore, DSS also misdiagnosed the child, which additionally affected the services that were offered to the mother. Lastly, even assuming that diligent efforts were made, DSS failed to prove by clear and convincing evidence that the mother failed to plan for the child’s future.