Stats & Case Summaries - Fourth Department Decisions Released on May 9, 2014

Criminal Case Summaries:

·       People v Brown (KA 07-01017) – 4AD reverses D’s conviction of assault in the second degree, having previously granted his motion for a writ of error coram nobis. 4AD finds that the lower court erred by failing to charge assault in the third degree as a lesser included offense. Defense counsel requested that the lesser included offense be submitted to the jury, and the court agreed that it was warranted. But, at the request of defendant himself, the court decided to not charge the lesser offense. 4AD finds, pursuant to the Court of Appeals decision in People v Colville (20 NY3d 20), that the lower court deprived D of the “expert judgment of counsel” by deferring to D in deciding whether to charge the lesser included offense.

·       People v Bryant (KA 12-01433) – In this appeal from an order denying D’s CPL 440 motion, 4AD reverses the order and grants a new trial on the basis of newly discovered evidence. D had been convicted of various charges relating to the shooting of the victim, who was the only witness to identify D. His identification was relatively weak. Following his conviction, D obtained an affidavit from a neighbor who witnessed the shooting, and said that D was not the shooter. 4AD finds that the affidavit met all six requirements for newly discovered evidence. In particular, 4AD explains that this evidence could not have been discovered with due diligence. Though police interviewed over a dozen witnesses shortly after the incident, none of the police reports mentioned the neighbor at issue. 4AD explains that, with the limited resources available to defense counsel, it was not unreasonable for him not to have further canvassed the neighborhood for additional witnesses. 4AD also notes that while there were credibility issues with this new witness, her testimony was corroborated by a second witness, and by the alibi witness that D presented at trial.

Lindley, J., dissents, and argues that 4AD should defer to the lower court, which found that a new trial was not warranted because the new witness’ testimony was not credible. Justice Lindley explains that the lower court had many reasons to find the witness’ testimony unbelievable. She failed to come forward for more than a year despite having witnessed the incident. She also claimed she did not know a second witness, who was also a neighbor of D, but then claimed she knew her by her “street name”. The second witness, however, testified that she and the second witness used to talk on the phone almost every day, and now do so every other week.

·       People v Casiano (KA 11-02170) – 4AD reverses D’s conviction for one count of grand larceny in the third degree, and several counts each of falsifying business records in the first degree and offering a false instrument for filing in the first degree. The charges resulted from D’s operation of a group daycare. The prosecutor alleged that D submitted vouchers to DSS for payment (1) for hours when no children were at the daycare, and (2) for hours when neither D nor a certified assistant was present at the daycare. 4AD first finds that the evidence at trial rendered duplicitous and multiplicitous the falsifying business records counts and the offering a false instrument for filing counts. With respect to grand larceny, 4AD finds that submitting vouchers for hours when neither D nor a certified assistant was present at the daycare, constituted a mere regulatory violation that “cannot form the basis for criminal liability under the larceny statute”. 4AD further explains that the grand larceny count must be reversed, because it could not be determined whether the jury found D guilty based on the legal theory—submitting vouchers for hours when no children were present—or the illegal theory—submitting vouchers for hours when neither D nor a certified assistant was present.

·       People v Daniels (KA 13-01953) – 4AD affirms this appeal by the People, finding that the trial court properly suppressed D’s statements and physical evidence. Police pulled over D’s car because it matched the description of a car involved in an armed robbery, and the windows were excessively tinted. D was ordered out of the car and pat frisked. No weapons were found. The officer asked D if he had “anything” on him, but D did not respond. The officer then pinned D against his car, and asked again. D said he had nothing. When the officer asked a third time, D said he had drugs in his pants pocket, which police recovered. 4AD holds that the lower court correctly found that D’s statement was involuntary, because it was coerced by the use or threat of physical force, and the drugs were fruit of the poisonous tree.

·       People v Walker (KA 12-01672) – 4AD reverses D’s conviction and grants a new trial because the People failed to prove at a reconstruction hearing that D was present during a pre-trial Sandoval hearing. 4AD notes that the People had the burden to demonstrate, by a preponderance of the evidence, that D was present. Only D and his former attorney testified at the hearing. D said he was not present during the Sandoval hearing, while his former attorney had no recollection of the hearing.

Family Law Case Summaries:

·       Matter of Dashaun G. (CAF 12-01926) – In this Article 10 case, 4AD rejects the father’s contention that the Family Court erred by removing the child from placement with the father without requiring DSS to commence a neglect proceeding pursuant to Article 10 of the Family Court Act. The child was previously deemed neglected by his mother, and the court issued an order placing the child with the father under DSS’s supervision. The relationship with the father and DSS thereafter deteriorated, and the parties agreed to additional conditions on the record at a permanency planning hearing. Before the conditions were reduced to a written order, DSS filed an order to show cause, alleging that the child was at imminent risk of harm in the father’s care. The Family Court held a hearing, and issued a permanency order placing the child with DSS. 4AD finds that DSS was not required to commence a neglect proceeding. The father was under DSS’s supervision, and when he failed to abide by the agreed-upon conditions of placement, DSS “was entitled to seek removal of the child by way of revocation of the order of supervision”.

·       Matter of Griffin v Griffin (CAF 12-02316) – In this custody matter, 4AD reverses the Family Court’s order, which granted custody of the children to a non-parent. 4AD finds that the lower court erred by awarding the non-parent custody without holding an evidentiary hearing to determine whether extraordinary circumstances were present. On the day when the hearing was supposed to be held, the court merely asked the parents if they had any witnesses. When they stated that only they would testify, the court ruled that there were no triable issues of fact, and awarded custody to the non-parent.