Stats & Case Summaries - Fourth Department Decisions Released on June 13, 2014

Criminal Case Summaries:

·       People v Boop (KA 12-00680) – D was convicted of vehicular manslaughter, among other crimes, when he drove a pickup truck off the road and struck a tree, killing the front seat passenger. 4AD rejects D’s argument that the lower court erred in admitting photographs of the scene, because flowers had been laid at the base of the tree and they constituted a “shrine” to the victim. 4AD explains that the sole purpose of the photographs was not to arouse the jury’s emotions. Instead, the photographs were relevant to establish the positions of the tree and the roadway, the visibility of the tree, and the straight nature of the roadway. All of these facts were relevant to the jury’s factual determinations.

·       People v Conway (KA 12-00584) – 4AD finds that the lower court erred in summarily denying D’s CPL 440 motion to vacate his guilty plea. D alleged that his attorney was ineffective because he failed to investigate two potential alibi witnesses and a third party who allegedly admitted to the crime. D attached affidavits from the two alibi witnesses to his motion, as well as an affidavit from a prior attorney, who made a recording of the third-party admission. Those submissions raised factual issues that required a hearing. 4AD also notes that although it previously denied D’s contentions regarding ineffective assistance of counsel on direct appeal, his current claims are proper because they concern matters outside of the record on appeal.

·       People v Gottsche (KA 13-01736) – 4AD rejects D’s argument that he was denied the effective assistance of counsel within the meaning of People v Colville (20 NY3d 20). In Colville, the Court of Appeals held that the decision to submit a lesser-included offense for the jury’s consideration is a strategic one controlled by defense counsel. And, it is error for a trial court to accede to the wishes of a defendant in that regard, over a request by counsel. Here, 4AD explains that while the record demonstrates that D did not want a lesser-included offense charge, it does not show that defense counsel’s position in fact differed. “[T]he record supports the conclusion that, ‘after consulting with and weighing the accused’s views along with other relevant considerations, [defense counsel] decide[d] to forgo submission of lesser-included offenses to the jury'”.

Family Law Case Summaries:

·       Matter of Abbott v Merritt (CAF 12-02358) – In this custody matter, 4AD finds that the Family Court properly denied the father’s motion to transfer the proceedings to North Carolina on forum non conveniens grounds. The factors delineated in Domestic Relations Law § 76-f (2) favored New York courts retaining jurisdiction. 4AD notes that, in particular, the children have not lived in North Carolina very long, the father has more financial resources than the mother and could travel to New York for proceedings, and New York courts have had prior involvement with the parties.

·       Matter of Shehatou v Louka (CAF 13-02031) – In this child support matter, 4AD finds that the lower court properly dismissed, pursuant to the fugitive disentitlement doctrine, the father’s motion to vacate prior orders. The Family Court previously entered a default order, finding the father in willful violation of an order of support, and issued an arrest warrant. The father, a California resident, attempted to vacate the order by order to show cause. 4AD finds that the fugitive disentitlement doctrine applied, because the father refuses to return to New York, and was thus evading the arrest warrant, while at the same time attempting to seek the protection of New York law. 4AD finds that the doctrine likewise precludes the father’s appeal.