Stats & Case Summaries - Fourth Department Decisions Released on October 3, 2014

Criminal Case Summaries:

·       People v Mallory (KA 12-02072) – 4AD reverses D’s robbery conviction because the lower court erred in permitting the prosecutor to exercise peremptory challenges against two black jurors. The prosecutor challenged the jurors based on their answer to a “race-based question, i.e., whether they believed that police officers ‘unfairly target members of the minority community’”. The problem, says 4AD, is that the question was unrelated to the facts of this case, which did not involve racial-profiling allegations, and the prosecutor could have asked many other race-neutral questions to determine the jurors’ feelings about police officers. In addition, the prosecutor directed that question only to the black jurors, and not the white jurors. 4AD further notes that the prosecutor referenced race in explaining his reasons for challenging one of the black jurors—“she believes that police sometimes single out minorities and I have Caucasian police officers that are going to be taking the stand.” 4AD thus finds that the prosecutor failed to offer raise-neutral reasons for the challenges to the two jurors, or alternatively, the reasons given were pretextual.

·       People v Mano (KA 10-02111) – 4AD reverses D’s conviction because the Superior Court Information to which he pled guilty was jurisdictionally defective. D was arrested after police found drugs in his car, and eventually was indicted on one count of third-degree criminal possession of a controlled substance (CPCS) and two counts of fifth-degree CPCS. Later, the prosecutor indicated he intended to charge D with one count of second-degree CPCS, in connection with the same incident. D waived indictment on that charged and pled guilty to an SCI. 4AD finds the SCI was jurisdictionally defective for two reasons. First, D had already been indicted on charges in relation to the same incident, and the SCI was improper under CPL 190.50 (2) (b). Second, the second-degree CPCS charge had not been charged in a felony complaint, nor was it a lesser-included offense of a charge in a felony complaint, and thus the SCI was improper under CPL 190.20.

·       People v McCray (KA 11-01376) – 4AD rejects D’s argument that the lower court should have suppressed the statement he made to police because his indelible right to counsel had attached. D, along with several others, went to a television station to surrender himself to police. When police arrived and took him into custody, a community activist who had accompanied D informed police that an attorney was on his way to the TV station. Police took D to a police station, read him his Miranda rights, and questioned him for 15 minutes. Questioning ceased when the attorney arrived at the police station. The attorney had not contacted police before then, nor did D personally request a lawyer. 4AD finds that D’s right to counsel did not indelibly attach because the right cannot be invoked by a third party on behalf of an adult defendant. Under such circumstances, 4AD explains, it would be unreasonable to require police to cease their investigation and begin a separate inquiry to determine whether D was in fact represented by counsel.

·       People v Stoutenger (KA 11-00492) – 4AD rejects D’s argument that the trial court erred in admitting a recorded telephone call D made to a friend. D argued that the telephone call constituted inadmissible Molineux evidence. 4AD, however, finds that the prosecutor sought to introduce the call solely to challenge D’s credibility on rebuttal, and not as direct evidence of D’s guilty on the prosecutor’s case in chief. 4AD explains that D opened the door to the introduction of the recording, because she testified that she was remorseful over the victim’s death. The telephone conversation was properly admitted “to rebut defendant’s testimony of remorse or anguish”.

·       People v Wideman (KA 13-01956) – 4AD reverses D’s conviction, upon a plea of guilty, of gun and drug possession charges, because police officers illegally searched his car. Specifically, 4AD finds that the officers unlawfully asked D if he had guns or drugs in the car, because they did not possess a founded suspicion that criminal activity was afoot. The officers also illegally asked D for consent to search the car, because they similarly did not possess the requisite suspicion to justify the request. 4AD’s ruling turned on the lack of evidence to establish that police smelled the odor of marijuana before they asked D the accusatory question and for consent to search the car. Though officers testified at the suppression hearing that they smelled the odor of marijuana at some point after approaching D’s car, they could not recall the exact point at which they did so.

Family Law Case Summaries:

·       Matter of Fewell v Ratzel (CAF 13-01403) – In this custody/visitation matter, 4AD rejects the father’s argument that the Family Court erred in determining that it was not in the child’s best interest to grant visitation with the father at a correctional facility. Though visitation with a noncustodial parent is presumed to be in a child’s best interest even when the parent is incarcerated, the presumption may be rebutted by evidence that visitation would be harmful to the child. 4AD finds the presumption was rebutted here by evidence that the father did not have a meaningful relationship with the child—that is, the father had been incarcerated the child’s whole life, had never met the child, and the child did not want to visit the father. And, the child’s psychologist testified that visits with the father, who was “a total stranger”, would be detrimental to the child.

·       Matter of Lylly M.G. (CAF 13-00504) – In this neglect case, 4AD finds that the Family Court did not err by excluding the father from the courtroom during his stepdaughter’s testimony. 4AD finds that while the Family Court was not presented with an affidavit attesting to the harm that the stepdaughter could suffer if she were to testify in open court, the Family Court considered various factors that justified its decision. In particular, the Family Court considered the child’s age and the serious nature of the allegations, the fact the child was seeing a therapist, the child testified in camera at the step father’s criminal trial, the father did not controvert that it would be in the child’s best interest to testify in camera, and the father’s rights were adequately safeguarded by counsel’s participation in the questioning. 4AD thus concludes that the Family Court properly balanced the interests of the parties, and because the father’s counsel was allowed to participate, D’s constitutional rights were not violated.

·       Matter of Tuttle v Mateo (CAF 14-00850) – In this custody/visitation mother, 4AD finds that the Family Court’s order suspending the mother’s visitation was not supported by a sound and substantial basis in the record. 4AD notes that the suspension of visitation with a parent is a drastic remedy that should only be ordered only when compelling reasons require it, and when visitation would be detrimental to the child. 4AD finds that, here, there was not “substantial evidence” to warrant the suspension of visitation. Although the child no longer wished to see the mother, the wishes of a child are not determinative.

·       Matter of Joselyn U. (CAF 12-02212) – In this neglect case, 4AD reverses the Family Court’s order, which determined that the mother neglected the subject children. The mother did not appear at the fact-finding proceeding, and the Family Court allowed her attorney to withdraw. The Family Court then conducted the hearing in the mother’s absence. 4AD finds this was error. The Family Court should not have permitted the attorney to withdraw because the attorney did not make a written motion to withdraw as counsel. Instead, the attorney merely sent the mother a letter six days earlier, informing her that the attorney may withdraw if the mother did not appear in court. The attorney thus failed to provide the mother with proper notice and time to respond. 4AD notes that although the record supports the neglect adjudication, the finding could not be upheld because the mother was denied due process.

·       Matter of Tyler W. (CAF 13-00754) – In this neglect case, 4AD orders a new dispositional hearing because Family Court abused its discretion in denying an adjournment. The mother’s attorney requested the adjournment because the mother was unable to attend the dispositional hearing. 4AD explains that this is not a case where there was no reason given for the mother’s absence; rather, there was “good cause” to adjourn the hearing. 4AD notes that the proceedings in this case were not protracted, and this was the mother’s first adjournment request.