Stats & Case Summaries - Fourth Department Decisions Released on June 20, 2014

Criminal Case Summaries:

·       People v Brewer (KA 09-01776) – 4AD reverses D’s murder conviction because the trial court improperly charged the jury, over defense counsel’ objection, regarding the affirmative defense of renunciation. The court did not give the charge until the jury sent out a note containing a question about “changing your mind at the last minute”. 4AD explains that a trial court cannot charge an affirmative defense when a defendant objects to the charge. By doing so, the court, among other things, impairs a defendant’s right to chart his own defense and imposes upon a defendant an affirmative burden of proof that the defendant has not undertaken by his or her defense theory. 4AD notes that there are limited circumstances where a trial court may charge an affirmative defense over the defendant’s objection, but it may do so only when that is the only viable defense raised, and cannot decide to do so after a defendant has completed his or her summation.

·       People v Campbell (KA 09-02092) – 4AD finds that D was not denied a fair trial by the lower court’s denial of his motion for severance. D was tried jointly with his co-defendant for rape in the first degree, among other crimes. 4AD explains that the defenses raised by D and co-D were not in irreconcilable conflict. The co-D raised an alibi defense; argued that he did not know D; both D and co-D argued they were not present during the sexual assault; and co-D’s alibi witnesses did not implicate D in the crime in any way. Under these circumstances, 4AD finds that there was not a significant danger that the jury would infer D’s guilt based on any conflict between the two defenses.

·       People v Gross (KA 13-00670) –  A majority of 4AD (3 to 2), finds that the lower court properly denied D’s CPL 440 motion to vacate his judgment of conviction on grounds of ineffective assistance of counsel. Counsel was not ineffective for failing to object to certain testimony that allegedly bolstered the victim’s account, because that testimony was not admitted for its truth. It was admitted to complete the narrative of events. Counsel also was not ineffective for failing to consult with a medical expert. Counsel effectively cross-examined the prosecution’s expert, and raised an area of possible doubt based on the expert’s testimony. Although defense counsel should have objected when the expert repeated the specific allegations made by the victim, that single error did not deprive D of a fair trial.

Justices Lindley and Carni dissent, and contend that D was denied the effective assistance of counsel when defense counsel failed to object to “numerous prior consistent statements made by the victim”. The dissent notes that the prior consistent statements, which were made by the victim to her sister, her mother, the police, and her pediatrician, were heavily relied upon by the prosecutor during summation. The summation made evident that the statements were used to establish the truth of the matter asserted, rather than a non-hearsay purpose. The dissent also disagrees  with the majority that there is a “narrative exception to the rule against the admission of prior consistent statements”.

·       People v Holes (KA 13-01428) – 4AD reverses D’s conviction for criminal possession of a weapon in the second degree, finding that the verdict was against the weight of the evidence because the People failed to prove that D’s possession of the gun was not temporary and innocent. D was walking to the store with her half-brother, when her half-brother got into an altercation with two strangers. Right before the altercation, the half-brother handed D a gun. Police responded shortly thereafter and found the gun in D’s waistband. 4AD finds that under the circumstances, D obtained the gun involuntarily, did not use it in a dangerous manner, and did not have sufficient time to dispose of it lawfully.

·       People v Mulligan (KA 09-02089) – During D’s trial for attempted murder, the trial court admitted in evidence a 911 call made about two minutes after the shooting, in which a witness stated he thought that the victim’s boyfriend was the perpetrator. The witness then asked the victim who had shot her, and she identified D. The witness told the 911 operator what the victim said. 4AD finds that the victim’s statement was properly admitted as an excited utterance. The victim made the statement shortly after she was shot four times in the presence of her 14-month-old child, and the proof showed that while medics were treating the victim at the scene, she was crying out stating she did not want to die. Under these circumstances, the fact that the statement was made in response to an inquiry did not serve to disqualify it. 4AD also notes that the witness’s identification of D as the shooter was improperly admitted as a present sense impression, but the error was harmless.

Family Law Case Summaries:

·       Matter of Frisbie v Stone (CAF 12-02055) – In this custody/visitation matter, 4AD finds that the Family Court properly modified a prior custody order by terminating the father’s visitation with the subject child. A change of circumstances was established by proof that the father allowed a man he met in jail to have sexual intercourse with his sixteen-year-old daughter in exchange for drugs. 4AD explains that although this conduct occurred before the prior order was entered, the mother and the lower court did not know about it at that time, and the mother’s “newfound awareness of the father’s prior conduct constitutes a sufficient change in circumstances to modify the father’s visitation rights”.

·       Matter of Anastasia I. (CAF 13-00323) – In this termination of parental rights case, 4AD reverses the Family Court’s order, which terminated the father’s parental rights and authorized the mother to consent to the child’s adoption without the consent of the father. The mother filed a petition to, among other things, terminate the father’s parental rights. The father moved to dismiss the petition on the grounds that Social Services Law § 384-b did not apply under the circumstances, because the child was neither “destitute” or “dependent”. The Family Court summarily granted the petition. 4AD reverses, agreeing with the father that the child is neither destitute nor dependent within the meaning of the Social Services Law. 4AD notes that the mother “may seek to dispense with the father’s consent to adoption pursuant to Domestic Relations Law § 111 (a) (2)”.

·       Matter of Isler v Johnson (CAF 13-01636) – In this custody/visitation matter, 4AD finds that the Family Court erred by dismissing the mother’s modification petition without a hearing. The mother made a sufficient evidentiary showing to warrant a hearing. Specifically, the mother alleged that since the prior order, the father used excessive corporal punishment against one of the children, and denied her visitation with the children for four weeks.