Stats & Case Summaries - Fourth Department Decisions Released on September 27, 2013

Criminal Case Summaries:

·        People v Battle (KA 12-00546) – 4AD finds that the lower court properly denied D’s suppression motion without a hearing. Initially, 4AD notes that the lower court was wrong in stating that D was required to submit an affidavit in order to be entitled to a hearing. A suppression motion may contain sworn allegations of facts made by either the defendant or another person. The court, however, properly denied the motion because it did not contain sufficient factual allegations to warrant a hearing. “[T]he sufficiency of defendant’s factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) defendant’s access to information.” Here, D had enough information to make a proper motion. The documents, including a search warrant application, demonstrated that an off-duty officer had probable cause to arrest D for stealing DVDs. The off-duty officer also conveyed certain information to the arresting officer, who was waiting outside the store to intercept D. 4AD finds that D’s allegation that the arresting officer “did not have specific information” about D, was insufficient to warrant a hearing.

·        People v Brownell (KA 13-00053) – 4AD finds that the lower court failed to determine whether D was eligible for youthful offender status. As the Court of Appeals held in People v Rudolph earlier this year, CPL 720.20 requires a sentencing court to expressly determine whether to grant youthful offender status to any defendant who is eligible. 4AD thus remits the matter to the lower court for a determination on “whether defendant is a youthful offender”.

·        People v Brumfield (KA 09-01582) – 4AD reverses D’s conviction because he was denied his right to testify before the grand jury. When D arrived at the grand jury, he signed a waiver of immunity form, but deleted three paragraphs. D refused to sign a form without the deletions. The prosecutor then did not allow D to testify. 4AD finds this was error, because the intact portions of the immunity form that D signed contained the language required by CPL 190.45 (1). As a result, the prosecutor was required to allow him to testify.

·        People v Humphrey (KA 09-01395) – 4AD affirms D’s conviction and finds, among other things, that the introduction into evidence of a photograph of D holding a rifle was not improper, because the photograph did not constitute evidence of a prior uncharged crime. There was no further proof that D’s possession of the rifle was unlawful. The mere possibility that the jury might infer some sort of sinister aspect to D’s behavior could not serve to render the behavior an uncharged crime.

·        People v Jones (KA 09-02028) – 4AD finds that D was properly sentenced as a persistent felony offender (“PFO”), and rejects his argument that a foreign felony used to support a PFO finding must have a New York equivalent. 4AD explains that D relies primarily on cases involving the predicate felony offender statute, which requires not only that a defendant have been convicted of a foreign felony that is punishable by more than one year in prison, but that such a punishment is also authorized in New York. The PFO statute, on the other hand, requires only that a sentence greater than one year was actually imposed on the foreign conviction. It does not require that the foreign crime must also constitute a felony in New York. This view, according to 4AD, is supported by the legislative history of the PFO statute. 4AD also declines to follow 3AD cases that require the foreign conviction to have a New York equivalent for PFO purposes.

·        People v McCutcheon (KA 11-02358) – 4AD finds that D was not deprived of the effective assistance of counsel. The complainant and key witness, who was D’s then-girlfriend and the mother of his child, paid his attorney’s fees. 4AD finds that the lower court erred by failing to conduct an inquiry regarding whether D was aware of the risks associated with the potential conflict and whether D was knowingly choosing the attorney to continue representing him. Nonetheless, 4AD concludes that D failed to establish “that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation.”

·        People v Rhodes (KA 12-00847) – 4AD modifies D’s sentence, finding that the lower court vindictively imposed a longer sentence (15 years) after 4AD vacated the initial sentence (12 years). A presumption of vindictiveness arises when a defendant obtains a reversal of a conviction, and is then sentenced to a longer term upon re-conviction. This presumption may be rebutted by the sentencing court if it can point to objective information concerning a defendant’s conduct occurring after the initial sentence that warrants an increased sentence. Here, the lower court justified the increased sentence on the ground that D was still not taking responsibility for his conduct.  4AD rejects that justification and explains that this did not constitute new information in light of D’s statements in his initial PSR. The updated PSR ordered before D’s resentence did not contain any materially different or new information.

Family Law Case Summaries:

·        Matter of Benzin v Kuty (CAF 12-01770) – In this custody/visitation matter, 4AD finds that the lower court properly dismissed the mother’s petition without holding a hearing because, while the matter was pending, an order was entered in Surrogate’s Court granting an adoption petition filed by the father and his wife. Under Domestic Relations Law § 117 (1) (a), the mother’s rights to visitation ceased upon the adoption of the child, and she no longer had standing to prosecute the visitation petition. 4AD notes that although it did not appear that the mother was given notice of the adoption petition, her option was to seek relief in Surrogate’s Court, because Family Court was without authority to ignore or vacate the adoption order.

·        Matter of Gallagher v Gallagher (CAF 13-00206) – In this child support matter, 4AD reverses the lower court’s order dismissing the mother’s petition, which sought an upward modification in the father’s child support obligation. The lower court determined that the mother failed to establish a sufficient change in circumstances warranting an upward modification. 4AD explains that the parties previously agreed to opt out of the requirements of the Child Support Standards Act. This decision was based in part on the fact that the children would spend significant time with the father, as per the visitation schedule in the separation agreement. Nonetheless, 4AD explains that since then, there has been a breakdown in the relationship between the father and the children. This has resulted in the children spending more time with the mother, with a concomitant increase in the mother’s child-care expenses. This breakdown, finds 4AD, was an unanticipated change in circumstances that warrants an upward modification in the father’s child support obligation.

·        Matter of Kadyn J. (CAF 12-01287) – In this neglect matter, 4AD finds that the lower court erred in admitting police records, because the certification attached to the records did not comply with Family Court Act § 1046 (a) (iv). That section requires that when a certification is completed by a “responsible employee” rather than the head of the agency, the certification must be accompanied by a delegation of authority signed by the head of the agency and the employee. Such delegation was absent here. Nonetheless, 4AD concludes that the neglect adjudication was supported by a preponderance of the credible evidence.