Stats & Case Summaries - Fourth Department Decisions Released on November 15, 2013

Criminal Case Summaries:

·   People v Flagg (KA 10-01828) - 4AD reserves decision and remits the case for an express determination on whether D should be adjudicated a youthful offender. There was no mention of youthful offender status at the plea proceeding, but at sentencing, defense counsel made several requests for such status. The lower court imposed the agreed-upon sentence without addressing the youthful offender application. 4AD finds that the lower court’s failure to rule on the application cannot be deemed a denial thereof and, “even if the court had denied the applications, there is no information in this record from which we could ascertain whether the court properly did so in the exercise of its discretion, or whether it improperly acceded to the prosecutor’s plea conditions.”

·        People v Frysinger (KA 13-00536) - 4AD reverses D’s plea of guilty because the lower court erred in denying D’s motion to withdraw the plea. D was specifically charged with providing alcohol to a person under 21 years of age, but never admitted to providing alcohol during the plea colloquy. The issue was preserved by D’s motion to withdraw, and the lower court should have granted the motion.

·        People v Gayden (KA 11-01802) - D argued that the People violated their obligations under Brady v Maryland, by failing to disclose that one of their witnesses was a paid informant. 4AD finds that the lower court should have granted D’s motion under CPL 440 to vacate the judgment of conviction on this basis. Prior to trial, D specifically requested the disclosure of whether any of the People’s witnesses were informants, and whether there were any agreements between the People and their witnesses. Here, the information was favorable, was suppressed by the prosecution, and D was prejudiced as a result.

·        People v Judd (KA 11-01149) - 4AD finds that D’s sentence is harsh an excessive insofar as it imposed both a monetary fine and a term of incarceration. 4AD modifies the sentence by vacating the fine.

·      People v Williams (KA 13-00320) - 4AD affirms an order that reduced a count charging D with reckless endangerment in the first degree to reckless endangerment in the second degree. D engaged in unprotected sex with the complainant without disclosing his HIV positive status. 4AD finds that D did not act with depraved indifference to human life. After their sexual relationship ended, D urged the complainant to get tested, telling him that a former partner of his had tested positive. D also showed remorse when interviewed by police. 4AD further finds that D’s conduct did not establish a grave risk of death to the victim. The People’s expert testified that given advancements in medications, HIV is no longer tantamount to a death sentence, and, if a patient is compliant with medication, his or her prognosis is “outstanding”.

Family Law Case Summaries:

·        Matter of Brewer v Soles (CAF 12-01822) – In this custody/visitation matter, 4AD finds that the lower court correctly found that the father established a change of circumstances, warranting an inquiry into whether the prior custody arrangement should be modified. The mother had primary custody pursuant to the prior order. During that time, the child had to repeat kindergarten, and struggled academically. The child frequently fell asleep in class, appeared “sullen, sad and withdrawn”, and had been referred for mental health treatment. 4AD finds that the child’s “‘downward slide’ constituted a change of circumstances sufficient to warrant an inquiry into the child’s best interests.” 4AD further finds that a change in primary custody was in the child’s best interest, because the mother failed to keep a television out of the child’s room—which was one of the reasons the child was frequently tired in school—and the father was gainfully employed and able to provide a more stable home for the child. 4AD also notes that the Attorney for the Child supported the father’s modification petition.

·        Matter of Lebraun H. (CAF 11-02392) – In this neglect matter, 4AD reverses the lower court’s order, which found that the paternal grandmother had neglected the child by her dismissive response to the child’s allegations that she had been sexually abused by a cousin. A psychologist testified that such a response “would cause the child to be reluctant to report future allegations of abusive contact.” 4AD finds that the evidence did not show that the child was actually sexually abused. As a result, the paternal grandmother did not fail to protect the child from actual harm. “[A] finding of neglect will not be based on a failure to prevent theoretical future harm which never occurred”.

·        Matter of Pecore v Blodgett (CAF 12-01705) – In this custody matter, 4AD reverses the lower court’s order, which awarded the mother sole legal and physical custody of the child. The parties previously stipulated to an order that granted them joint legal custody, with primary physical custody with the mother. Both parties petitioned to modify that order. 4AD finds that the father established the requisite change of circumstances. Specifically, incidents of domestic violence involving the child’s uncle created a dangerous and abusive environment in the mother’s home. Further, the prior visitation arrangement will no longer be workable when the child is of school age. Given the abusive environment in the mother’s home, 4AD finds that it is in the child’s best interest to award the father primary physical custody.