Stats & Case Summaries - Fourth Department Decisions Released on November 8, 2013

Criminal Case Summaries:

·        People v Atchison  (KA 12-00971) – 4AD modifies D’s sentence of imprisonment imposed for his conviction of criminal possession of a weapon in the second degree from 15 years to 10 years. This was D’s first felony conviction. D served in the U.S. Navy for 4 years, and was honorably discharged. D also did not use or threaten to use the gun. 4AD opines that although D’s actions may have endangered innocent lives, especially those of the police officers pursuing his vehicle, the maximum sentence was not warranted.

·        People v Bailey (KA 11-01486) – 4AD rejects D’s argument that the evidence was legally insufficient to disprove his defense of temporary and lawful possession of the weapon. D may have initially obtained the gun by disarming his assailant but, after evading the robber, he returned to the scene, shot the robber in the leg, and regained his duffel bag that contained $27,000. D then fled when police approached. 4AD rules that such conduct was utterly inconsistent with D’s claim of innocent possession.

·        People v Flanders (KA 11-00702) – 4AD rejects D’s argument that the lower court’s response to a jury note rendered two counts in the indictment duplicitous. D was charged with, among other things, assault in the first degree and reckless endangerment in the first degree. The charges stemmed from an incident where D and a co-defendant sought retribution against the victim. They saw the victim and his fiancée on the street, and an altercation ensued. D struck the victim with a pistol and then fired it at the victim, in the vicinity of the fiancée. D then returned to his car and retrieved a rifle, which he fired at the victim, in the vicinity of the fiancée. The assault and reckless endangerment counts alleged that D committed those offenses with “a .380 semi-automatic pistol and a .22 rifle.” In response to a jury note, the court told the jury that it could find “that either of the weapons were involved or both, as long as you find that there was a deadly weapon involved.” 4AD finds that this instruction did not render the two counts duplicitous, because the assault with the two guns constituted a single uninterrupted assault, and the reckless endangerment constituted a continuing offense. “[W]here an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others.”

Justice Sconiers dissents, and argues that the indictment was rendered duplicitous because there were actually two distinct shooting incidents—one with the pistol, and one with the rifle—that were separate in time and the result of separate “impulses”. As a result, it cannot be ascertained whether different jurors convicted D based on different acts.

·        People v Griffin (KA 09-01960) – 4AD rejects D’s argument that the lower court erred in denying his CPL 30.30 (statutory speedy trial) motion. D argued that the People did not respond to his request for a bill of particulars for over six months, and that time constituted post-readiness delay that should be charged to the People. 4AD explains that the People announced ready for trial before the six months, and their failure to serve a response was “in no way inconsistent with [their] continued readiness”. 4AD notes that it decided a similar issue in People v Runion (107 AD2d 1080), and explained in that case that a defendant’s remedy for the People’s delay under such circumstances does “not include dismissal under CPL 30.30”. 

·        People v Koonce (KA 11-02471) – 4AD rejects D’s argument that he was denied his right to counsel when police questioned him while he was in custody and represented by counsel on unrelated charges. A police officer testified that D had already been sentenced on the unrelated case before he questioned D. Once prior charges are disposed of, “the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge”. 4AD rejects D’s argument that his right to counsel lasted until at least 30 days after he was sentenced—the time allowed for the filing of a notice of appeal.

·        People v Morgan (KA 11-01834) – 4AD reverses D’s conviction because he was deprived of a fair trial as a result of prosecutorial misconduct. On a prior appeal, 4AD noted its strong disapproval of the prosecutor’s misconduct at the first trial. On this appeal from a re-trial, 4AD notes that the prosecutor repeated some of the comments 4AD found improper, and made additional improper comments. The prosecutor denigrated the defense and defense counsel, characterizing the defense as “noise”, “nonsense”, and a “distraction”. Among other things, the prosecutor improperly became an unsworn witness and misstated the evidence and the law. 4AD also finds that D’s conviction of grand larceny in the third degree was not supported by sufficient evidence, because there was insufficient proof that the value of the property stolen exceeded $3,000. In addition, 4AD reverses the conviction of criminal possession of a controlled substance in the seventh degree, because the proof showed that he possessed drugs on 9/27/2005, but he was indicted for possessing drugs on 9/2/2005. This discrepancy could not be “characterized as a mere ‘variance’ in the date of the offense”.

·        People v Povoski (KA 12-00179) – D moved to set aside his sentence pursuant to CPL 440.20, and the lower court denied it, on the ground that he could have raised the sentencing issue on direct appeal. 4AD finds that this was error, because denial of a CPL 440.20 motion (unlike a 440.10 motion) is mandatory only when the issue “was previously determined on the merits upon an appeal from the judgment or sentence” (emphasis added). 4AD further finds that D’s sentences for robbery, forgery, and felony assault should all run concurrently. The indictment alleged that either the robbery or forgery count could serve as the predicate felony for the felony assault count. Under these circumstances, the sentences on all three counts must run concurrently.

·        People v Salter (KA 12-00571) – 4AD rejects D’s argument that the lower court erred in denying his motion to suppress a handgun. Police testified that D matched the description provided by 911 callers of one of the suspects of a homicide, and was near the location where the suspect had last been seen. Police further testified that D was standing at an angle with his left side away from the officer, and D’s arm was clenched at his left side. D did not respond when the officer asked him what was wrong with his arm. The officer then conducted a pat down and found a gun. 4AD finds that police had the requisite reasonable suspicion to stop and detain D, because D matched the description of the suspect, and the officer observed him acting suspiciously.

Family Law Case Summaries:

·        Matter of Barton v Barton (CAF 13-00708) - In this child support matter, the mother filed a petition to modify her child support obligation. The parties previously agreed that if either of their incomes increased or decreased by 25%, they could move to modify their obligation. The Support Magistrate found that the father's income had increased by 25%, and ordered an increase in his obligation. 4AD rejects the father's argument that the petition should have been dismissed once the mother failed to prove a decrease in her own income. While Family Court Act § 441 requires dismissal of a petition under such circumstances, 4AD notes that pleadings are to be construed liberally, and courts have the authority to sua sponte conform the pleadings to the proof. 4AD finds that, here, the Support Magistrate properly conformed the pleadings to the proof, and the father was not prejudiced.

·        Matter of Green v Bontzolakes (CAF 12-00853) - In this custody/visitation matter, 4AD finds that the lower court properly modified a prior order by ruling that the mother's visitation should be supervised. A change of circumstances was established because the mother absconded out of the country with the child for 39 days and thus violated the prior order. This was part of a continuing pattern by the mother of violating court orders. The lower court, however, erred in failing to specify a visitation schedule. The modification order effectively gave the supervised visitation provider the discretion to set a visitation schedule, which was improper.

 

·        Matter of Skyla H. (CAF 12-01382) - In this abuse and neglect matter, 4AD rejects the father's argument that Family Court violated his right to due process by conducting proceedings in his absence. 4AD notes that the right to be present is not absolute, and here, the father was incarcerated at the time of the proceeding for his conviction of sexually abusing one of his daughters, which was also the conduct that formed the basis of the abuse and neglect petition. A conviction for rape or sexual abuse is sufficient to establish abuse of a child under the Family Court Act. 4AD finds that the father was not prejudiced by his absence from court when the petitioner's motion for summary judgment was decided, because there was nothing the father could have contributed to change the ultimate result.

·        Matter of Tyler J. (CAF 13-00181) - In this abuse and neglect matter, 4AD finds that the lower court erred in dismissing the neglect petition against the respondent-mother. One of the children testified that the mother drinks nearly everyday, and another child told a caseworker that the mother drinks all day long, from before he leaves to school in the morning, to when he goes to sleep at night. 4AD finds that this constituted prima facie proof that the mother misused alcoholic beverages to the extent that it has, or ordinarily would produce a state of substantial intoxication.