Stats & Case Summaries - Fourth Department Decisions Released on March 21, 2014

Criminal Case Summaries:

·        People v Grimes (KA 13-00330) – In this appeal by the prosecutor, 4AD finds that the lower court erred in dismissing a count of the indictment on the ground that the jury proceedings were defective. The grand jury voted a true bill on one count of assault in the second degree, but an indictment was not reported out. The prosecutor later submitted additional evidence, and the grand jury indicted D on an additional count—assault in the first degree. The lower court dismissed the assault-1^st count, on the ground that the grand jury did not vote to vacate the assault-2^nd count and reopen the presentation. 4AD holds that CPL 190.25 (1) and People v Cade (74 NY2d 410) do not require the prosecutor to obtain a vote of 12 grand jurors to reopen the proceedings under such circumstances. In particular, 4AD notes that the grand jury was not asked to reconsider the assault-2^nd count. “[I]nasmuch as there was no second presentment of that charge, the grand jury was not required to vacate its prior vote.”

·        People v Holmes (KA 12-00870) – In this appeal by the prosecutor, 4AD finds that the lower court erred by granting defendant’s suppression motion. Police received a 911 call from a witness who stated that a man was abducted at gun-point at a certain intersection. Police responded and observed a car near the scene, which matched the witness’s description. The witness was in her own car and pointed toward the abductors’ car. Police pulled the car over and arrested the driver for unlicensed operation of a motor vehicle. The car was searched, a gun was found, and it was then towed. The lower court held police found the gun pursuant to an illegal inventory search and suppressed it. 4AD reverses, finding that police had probable cause to search the car based on the information provided by the identified citizen informant.

·        People v Mohamud (KA 12-02273) – 4AD finds that the lower court did not err in refusing to charge the jury on the extreme emotional disturbance defense. 4AD first notes, relying on the Court of Appeals’ recent decision in People v Gonzalez, that D’s failure to file a notice pursuant to CPL 250.10 (2) was not fatal to his claim, because he requested the EED instruction based solely on the proof presented by the prosecution. 4AD concludes, however, that the evidence that D bound and gagged his step-son, and struck him more than 60 times with a rolling-pin, was not enough to justify the charge. Proof of the violent or brutal nature of the attack must generally be coupled with some other evidence indicative of a loss of self-control. Here, witnesses described D as “not angry”, calm, and “melancholy”, before and after the murder.

·        People v Wright (KA 07-01841) – In this appeal from a murder conviction, a 3-2 majority affirms D’s conviction. The dissent (Fahey & Carni, JJ.) would reverse and grant a new trial, because D was deprived of a fair trial when the prosecutor mischaracterized the DNA evidence on summation. The dissent also concludes that defense counsel was ineffective for failing to object to the prosecutor’s improper statements. The prosecutor repeatedly misstated the significance of the results of Y-STR DNA testing, arguing that it established that DNA samples obtained from the victim and a ligature matched D’s DNA. In actuality Y-STR testing permits only the conclusion that an individual cannot be excluded as a contributor of the DNA sample. “[The DNA] evidence placed defendant in a class of people that could have contributed to the DNA, but the prosecutor argued to the jury that the analysis of the DNA established defendant as the DNA’s contributor. We conclude that the prosecutor’s willful and repeated mischaracterization of evidence of class as evidence of exactitude was misconduct that could have ‘tip[ped] the scales against defendant’ ”.

Family Law Case Summaries:

·        Matter of Lopez v Lugo (CAF 13-00215) – In this custody matter, 4AD initially declines to address the mother’s argument that the lower court erred by denying the Attorney for the Child’s motion to withdraw from representing one of the parties’ children. The mother’s notice of appeal was specifically limited to issues of custody, parenting time, and contact and visitation with the grandparents, and the issue regarding the AFC’s motion was thus not properly before 4AD. The mother also failed to include the motion in the record on appeal. The mother, as the appellant, had the obligation to assemble a proper record, and “must suffer the consequences” for her failure to do so. 4AD also rejects the mother’s contention that the AFC failed to advocate for the child’s position. Both AFCs in this matter properly took positions contrary to their client’s wishes, because their wishes were likely to result in a “substantial risk of imminent, serious harm”.