Stats & Case Summaries - Fourth Department Decisions Released on January 3, 2014

Criminal Case Summaries:

·        People v Burnice (KA 10-00384) – 4AD reverses D’s assault in the second degree conviction because the show-up identification procedure was unduly suggestive. The show-up was conducted in a police station parking lot, about 90 minutes after the crime. D was handcuffed during the identification, and there were uniformed police officers and ambulance personnel present in the parking lot. 4AD concludes that the circumstances of this identification “press[] judicial tolerance beyond its limits”.

·        People v Hampton (KA 12-00207) - 4AD reduces D’s sentence for robbery in the first degree to 15 years plus 5 years of post-release supervision. D was originally sentenced as a second felony offender to 24 years plus 5 years of post-release supervision. In reducing the sentence, 4AD notes that D “had no prior history of violent crime and is relatively young.”

·        People v Jarvis (KA 10-01955) - 4AD reverses D’s conviction for murder in the second degree because he was denied his right to the effective assistance of counsel. 4AD affirmed D’s conviction on direct appeal about 20 years ago, but D successfully petitioned for a writ of error coram nobis on the ground that appellate counsel failed to raise the ineffective assistance of trial counsel issue. 4AD now holds that D’s trial counsel made 2 serious errors. One, defense counsel failed to object when the prosecutor elicited testimony that the trial court had precluded, and which implicated D in the murder. There was no strategic reason for counsel not to object, and that error alone deprived D of a fair trial. Two, defense counsel proffered a flawed alibi defense—i.e., two defense witnesses testified as to D’s whereabouts on a date that the prosecutor demonstrated was different than the date of the crime. “[O]ffering patently erroneous alibi testimony cannot be construed as a plausible strategy”.

Justices Valentino and Whalen dissent. Counsel’s failure to object could have been a strategic decision—for example, to avoid focusing the jury’s attention on the testimony, or to use it to the advantage of the defense. Also, the alibi defense was not necessarily flawed, because the jury could have determined that the prosecutor did not show that the alibi was for the wrong date.

·        People v Koons (KA 12-00996) - 4AD reserves decision and remits the matter for an express determination as to whether D should be adjudicated a youthful offender (see People v Rudolph, 21 NY3d 497). D was initially sentenced to interim probation, and was promised that if he successfully completed it, he would receive concurrent terms of probation on multiple charges. But if he failed, he would receive a prison sentence. After the court found that D violated the terms of interim probation, it imposed a term of incarceration without determining whether D should be granted youthful offender status.

Justice Whalen dissents, concluding that the record demonstrates that the court below did determine that D should not be adjudicated a youthful offender. The court below told D that if he did not successfully complete interim probation, he would be sentenced to a prison term, and would not be given youthful offender status. At sentencing, the court noted that D was adjudicated a youthful offender on two prior occasions, and violated probation after both adjudications. The court then concluded that a prison sentence would be appropriate. The court’s statements at sentencing were sufficient to comply with Rudolph and CPL 720.20.

·        People v Lamont (KA 09-02474) - 4AD finds that D’s conviction of attempted robbery in the second degree was supported by legally sufficient evidence. D and another person knocked on the the backdoor of a restaurant before it was open, and appeared to be carrying handguns. An employee saw the two men on a surveillance camera and called police. Police eventually apprehended D, who was wearing a mask, a hat and gloves, but the other man could not be located. Police also found a pellet gun near the area where D had been hiding. D was charged with attempting to forcibly steal property from an employee of the restaurant. On appeal, D argued that while he may have been up to no good, the evidence was insufficient to show that his intent was to steal, as opposed to murder, kidnap, or assault, for example. 4AD rejects this argument, finding that the most reasonable inference from the above circumstances was that D’s intent was to rob. Because D possessed only a BB gun, intent to murder was an unreasonable inference. And because none of the employees knew D or his accomplice, intent to assault was an unreasonable inference.

Justices Fahey and Peradotto dissent, finding that there was legally insufficient evidence to establish that D had the specific intent to commit a robbery. The dissent distinguishes People v Bracy (41 NY2d 296), upon which the majority relied, on the grounds that the defendants in that case engaged in preparation and coordination before attempting to rob a store. Here, D and the other person merely approached the restaurant and knocked on the door. The dissent also disputes the majority’s conclusion that none of the employees knew D or his accomplice. The accomplice was wearing a mask and was never identified, so it cannot be concluded that the employees did not know him. And witnesses testified that they did not know anyone named “Jafari Lamont”, not that they did not recognize D.

·        People v Lowe (KA 10-01797) - 4AD reduces D’s sentence for criminal possession of a weapon in the second degree to 5 years from 10 years. D had no prior criminal history and this was his first arrest. Further, D did not threaten anyone with the gun or use it in a violent manner.

·        People v McArthur (KA 12-01364) - 4AD finds that the lower court properly refused to allow D to introduce hearsay statements made by his accomplice. The accomplice made the statements during his plea colloquy, and in a letter written one week after the colloquy. The lower court properly found that the statements were unreliable. At the plea colloquy, the accomplice initially gave an account of the crime that was exculpatory as to D, but may have made it only to avoid entering prison as a “snitch”. The accomplice then changed his account and inculpated D. The statements in the letter were likewise unreliable, and 4AD also notes that when the letter was written, the accomplice may have had a motive to misrepresent the facts.

Justice Carni dissents, concluding that the statements at the plea colloquy and in the letter should have been admitted. Both sets of statements were exculpatory, and were thus subject to a more lenient standard of admissibility—that is, if there was a reasonable possibility that the statements might be true. There was such a reasonable possibility here, and exclusion of the statements infringed upon D’s right to present exculpatory evidence.

Family Law Case Summaries:

·         Matter of Hannah L. (CAF 12-01012) - In this neglect matter, 4AD finds that the lower court’s neglect finding is supported by a preponderance of the evidence. The out-of-court statements of the parties’ three oldest children established that the parents engaged in domestic violence in the children’s presence. 4AD notes that the out-of-court statements were corroborated, as required FCA § 1046 (a) (vi). Corroboration cannot be established by either the mere repetition of a statement by a child, or the adverse inference drawn against a parent for his or her failure to testify. But here, the “statements of the three oldest children adequately cross-corroborated one another”.