Stats & Case Summaries - Fourth Department Decisions Released on September 26, 2014

Criminal Case Summaries:

·        People v Davis (KA 12-02043) – 4AD reverses D’s conviction, upon a plea of guilty, because the lower court failed to advise him that the sentence would include a term of postrelease supervision. Because the court failed to do so, the plea was not entered knowingly, voluntarily, and intelligently. Although D’s waiver of appeal was valid, the challenge to the voluntariness of the plea survived the waiver.

·        People v Dukes (KA 11-00286) – 4AD reverses D’s conviction, upon a plea of guilty, because the lower court failed to inquire during the plea colloquy about whether D was knowingly, voluntarily, and intelligently waiving a possible affirmative defense. D pled guilty to first-degree robbery—committing a robbery while possessing what looked like a firearm—but during the plea colloquy stated that he possessed a bb gun, not an actual gun as he had earlier told police. Possession of something other than a loaded firearm constitutes an affirmative defense that reduces a first-degree robbery charge to second-degree robbery. Though defense counsel stated D was waiving the affirmative defense, the court did not conduct an inquiry about this issue with D. 4AD finds that the lower court thus failed in its duty to ensure the plea was knowing and voluntary.

·        People v Smith (KA 10-02084) – 4AD rejects D’s argument that he was deprived of effective assistance of counsel when his trial attorney, during the Sandoval hearing, conceded that D could be cross-examined regarding one of his prior convictions. 4AD explains that the issue would likely have been decided against D anyway, and counsel argued that the prosecution should not be allowed to cross-examine D about other convictions. The lower court precluded the prosecution from questioning D regarding three other convictions. 4AD alternatively finds that even assuming counsel erred, this single error did not deprive D of effective assistance of counsel.

Family Law Case Summaries:

·        Matter of McNeil v Deering (CAF 13-00785) – In this custody/visitation matter, 4AD affirms several orders issued by Family Court. The father sought, among other things, to modify a prior order that granted joint legal custody to the children’s grandparents and the mother and father, and primary physical custody to the grandparents. The prior order was entered upon the consent of the parties. 4AD finds that the Family Court erred because it failed to first determine whether extraordinary circumstances existed to warrant the continuation of primary physical custody with the grandparents. 4AD explains that a nonparent has the burden of establishing extraordinary circumstances even where a prior order was made upon consent of the parties. 4AD further concludes that remittal is not necessary because the record is sufficient for 4AD to make its own findings. Extraordinary circumstances were established based on the father’s domestic violence and substance abuse history, and sporadic contact with the children.