Criminal Case Summaries:
·
People v Forsythe (KA 05-00889) – 4AD previously granted a writ
of error coram nobis in this case because D was denied his right to counsel on
an interlocutory appeal by the prosecutor from an order granting D’s motion to
dismiss the indictment. 4AD thus considered the prosecutor’s appeal de novo.
4AD finds that there was legally sufficient evidence before the grand jury to
establish that D constructively possessed a package of drugs. The evidence
showed that UPS received a package with an undeliverable address. The package
contained cocaine and UPS informed police. Someone then called UPS and provided
a new address. The package was delivered, and police arrested the woman who
received it. Police also arrested D, who they observed hanging around the house
before and after delivery. Police found that D possessed a phone, which was the
one that was used to call UPS. In addition, evidence showed that D had been to
the house earlier in the day looking for the package.
·
People v Hunter (KA 08-00334) – 4AD
rejects D’s argument that he was deprived of a fair trial as a result of a
comment made by the court. D objected to an argument made by the prosecutor on
summation regarding the extreme emotional disturbance defense. In ruling on the
objection, the trial court improperly stated that “mercy” was an element of the
defense. 4AD finds that the misstatement was isolated, and the court thereafter
correctly instructed the jury on the statutory elements of the defense. 4AD
also rejects D’s argument that he was denied his right to be present at a
material stage of the trial. In his omnibus motion, D moved to preclude his
prior convictions and prior bad acts, and the prosecutor moved for permission
to introduce them. Defense counsel agreed to the court’s proposed procedure to
rule with respect to those requests on the papers alone. 4AD finds that D had
the opportunity to contribute to defense counsel’s written motion. 4AD also
concludes that “To the extent that defendant contends that he was denied the
right to be present at a pretrial Ventimiglia
hearing, we note that a defendant is not entitled to such a hearing”.
·
People v Norcutt (KA 10-02354) – 4AD rejects D’s argument that
the trailer—a “1978 Terry make Trailer”—that he set on fire did not constitute
a “building” within the meaning of the arson statute. “Inasmuch as the trailer
herein was ‘a constructed edifice enclosed by walls, covered by a roof,
designed to stand permanently, and serving a useful purpose, it is included
within the ordinary meaning of the word “building”’”. 4AD notes that the trailer
was even more “permanent” than the shanty erected by homeless people that the
Second Department found constituted a building in People v Fox (3 AD3d 577).
·
People v Roberites (KA 09-01253) – 4AD reverses D’s
conviction because the lower court failed to comply with People v O’Rama when it responded to a jury note without giving D
notice of the note. D represented himself at trial. The jury requested court
exhibits, and the court provided them to the jury without notifying D. 4AD
finds that this was error because D neither waived his right to be present
during requests by the jury, nor did the court inform D on the record that
exhibits would be provided to the jury without reconvening.
Smith, J.P., dissents. The dissent argues
that the jury’s note was not substantive, and therefore any error in failing to
comply with O’Rama required
preservation.
Family Law Case Summaries:
·
Matter
of Raven B. (CAF 13-00371) – In this neglect matter, 4AD reverses the
Family Court’s order dismissing the petition filed by DSS against the mother,
finding that the order lacked a sound and substantial basis in the record. 4AD
finds that neglect was established by the mother’s failure to properly
supervise her 3 ½-year-old child, who left the house and wandered 1 ½ blocks
while the mother slept. The child was in imminent danger of impairment, and
that circumstance was caused by the mother’s failure to exercise a minimum
degree of parental care—that is, to keep the doors to the house locked, even
though the mother knew or should have known that the child was able to open and
go through those doors. 4AD further finds that the evidence established that
the mother failed to supply the child with adequate food, clothing, and
shelter. In particular, 4AD noted the presence of substantial amounts of
garbage and animal feces in the house.
·
Matter
of Yaddow v Bianco (CAF 13-00710) – In this custody matter, 4AD affirms
the Family Court’s order denying the father’s petition for permission to
relocate from New York to Maryland. Though the father testified that
he obtained a job offer for a teaching position in Maryland, he failed to offer proof of that offer.
He also failed to diligently seek a teaching position in upstate counties, and
his wife also failed to find employment in New York. 4AD also notes that if the father
relocated to Maryland,
it would be difficult for the child to maintain a relationship with his mother
and two brothers.
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