Stats & Case Summaries - Fourth Department Decisions Released on February 7, 2014

Criminal Case Summaries:

·       People v Carver (KA 10-00382) – 4AD reverses D’s conviction because the prosecutor’s late disclosure of Brady material—a recording of a 911 call—deprived D of a fair trial. The prosecutor turned the recording over along with Rosario material on the first day of trial. After learning the contents of the recording, defense counsel requested an adjournment to subpoena witnesses, but the trial court denied the request. Because of the late disclosure and the denial of the adjournment request, D was denied “a meaningful opportunity to use the exculpatory evidence”. The recording was material because it would have allowed D, a black male, to argue that the perpetrator was a white male.

·       People v Collier (KA 07-01257) – 4AD reverses D’s conviction of murder in the second degree, among other things, because he was deprived of a fair trial when prosecution witnesses and the prosecutor repeatedly referred to D by his nickname, “Killer”. Given that the witnesses knew D by his given name, the nickname had limited, if any, probative value. 4AD notes that to the extent that this issue is not preserved, defense counsel was ineffective for failing to object when this testimony was elicited, and when the prosecutor referred to the nickname on summation. 4AD also finds that reversal is required because the trial court dismissed an entire jury panel over defense counsel’s objection. During voir dire of the panel, defense counsel observed that the lower court was becoming frustrated with the number of jurors who had given excuses concerning their inability to serve, and counsel believed the court’s frustration might be affecting other jurors. The court asked if defense counsel wanted the panel dismissed, but defense counsel did not. Under the circumstances, the court could not discharge the jurors absent legal cause or peremptory challenge.

·        People v James (KA 12-00660) – 4AD modifies D’s judgment of conviction by reversing the conviction of unlawful imprisonment under the merger doctrine. The acts constituting unlawful imprisonment were incidental to and inseparable from the acts constituting assault in the second degree. D’s brief “abduction” of the victims was “merely ‘preliminary, preparatory, or concurrent action’ in relation to the ultimate crime [of assault]”. 4AD also reduces D’s sentence for first degree burglary from 6 ½ years plus 5 years of post-release supervision to 5 years plus 3 years of post-release supervision.

·       People v Layou (KA 09-00746) – 4AD modifies D’s conviction because he was denied effective assistance of counsel where defense counsel failed to move to suppress evidence and statements—the only viable defense strategy—and further failed to make any arguments for suppression following a hearing on D’s pro se suppression motion. In addition, although counsel represented D for 6 months, he did not meet with him even once. 4AD relies principally on the Court of Appeals’ recent decision in People v Clermont (22 NY3d 931). As in Clermont, 4AD remits the matter for further proceedings on the suppression motion, including legal arguments by counsel for both parties, and a reopening of the hearing if D so elects.

·       People v Leistman (KA 09-02480) – 4AD reverses D’s guilty plea because the lower court failed to inform D that his sentence would include a term of post-release supervision. Because PRS is a direct consequence of a guilty plea, the court’s failure to inform D rendered the plea not knowing, voluntary, and intelligent. 4AD notes that this issue could be raised on appeal even without objection. 

Family Law Case Summaries:

·       Matter of Alex C. (CAF 13-00010) – In this termination of parental rights case, 4AD concludes, among other things, that the lower court correctly found that the father failed to plan for the future of the child. The father, who was incarcerated, failed to participate in various counseling and treatment programs that were recommended by the Department of Social Services. Although he participated in parenting classes, he said they were “stupid” and that he did not learn anything in them. Further, the father’s only plan for his children while he was incarcerated was to keep them in foster care. The father’s failure to provide an alternative to foster care during the duration of his incarceration supported a permanent neglect finding.

·       Matter of Campbell v January (CAF 12-01187) – In this custody matter where custody of the child was granted to a non-parent, 4AD rejects the father’s argument that the non-parent respondent failed to establish extraordinary circumstances. The mother placed the child with the non-parent shortly after his birth, and the father denied paternity at that time despite a DNA test that confirmed he was the father. The father did not seek custody until the child was almost a year old. He visited the child 6 to 7 times when the child turned two years old, but then failed to exercise visitation. Further, the father demonstrated no interest in learning about the child’s significant medical conditions and the treatment they required.

·       Matter of Washington v Stoker (CAF 13-00040) – In this custody matter, the former foster parents appealed from an order dismissing their petition seeking custody of the father’s child. The former foster parents lacked standing to initiate their own proceeding because the child was in the father’s care and custody. 4AD also rejects the former foster parents’ argument that they had standing due to extraordinary circumstances. Evidence of the father’s arrest and incarceration, without more, did not establish the requisite extraordinary circumstances.