Criminal Case Summaries:
·
People
v Dukes (KA 12-01621) – 4AD modifies D’s conviction by reversing those
parts convicting him of criminal sexual act in the first degree and rape in the
first degree. Those two counts were rendered duplicitous by the evidence at
trial. Each count charged D with a single instance of the prohibited conduct
during the summer of 2010. At trial, however, the victim testified that D
regularly subjected her to such conduct, and did not provide specific testimony
about any single instance. Under the circumstances, it was impossible to
determine whether D was convicted for engaging in the conduct for which he was
indicted, or whether the jury reached a unanimous verdict. 4AD explains that
the remedy in this case is to dismiss the two counts, with leave to the People
to re-present them to another grand jury. Dismissal with prejudice is not
warranted because it is not possible to determine whether D’s double jeopardy
rights would be violated by a second prosecution.
·
People
v Hymes (KA 10-01590) – 4AD reverses D’s conviction for second-degree
burglary because he was denied his right to testify before the grand jury. D
and his first attorney were informed at the arraignment on the felony complaint
that D could testify before the grand jury the next morning, which was in less
than 24 hours. The first attorney was relieved the same day due to a conflict
of interest. After the grand jury indicted D the next day, a new attorney was
assigned to represent him. That attorney objected to the short notice given to
D. The prosecutor offered to allow D to testify before the same grand jury, but
refused D’s request to testify before a different grand jury. 4AD finds that D
was not given “reasonable time” to consult his attorney and to exercise his
right to testify before the grand jury.
·
People
v Parson (KA 13-00656) – In a 4 to 1 decision, 4AD rejects, among other
things, D’s argument that he was deprived of effective assistance of counsel at
his suppression hearing. D was stopped by a police officer, who testified that
he observed that the windshield of D’s car had a crack in it, and that there
was an object hanging from the rearview mirror. The officer searched the car
after he smelled burnt marijuana, and found a gun. The lower court denied the
motion to suppress. The majority and dissent agree that D’s contention
regarding counsel’s failure to cross-examine the officer regarding an
inventory-search form could not be reviewed on appeal because the form was not
included in the record on appeal. The dissent nevertheless notes that the form
shows there was no damage to the windshield. The majority concludes that
defense counsel was effective during the suppression hearing. The dissent,
however, argues that counsel failed to cross-examine the officer regarding
lighting conditions, D’s proximity to streetlights, and weather conditions.
Counsel’s failure to do so “was tantamount to a failure to supply County Court
with a rationale to grant suppression”.
Family Law Case Summaries:
·
Matter
of Baxter v Borden (CAF 13-01381) – In this custody/visitation matter,
4AD finds that the Family Court properly granted the father’s relocation
petition. The father relocated with the children before seeking permission to
do so, which 4AD notes is not to be encouraged. Still, the unilateral removal
of children from the jurisdiction is just one factor among many, and “an award
of custody must be based on the best interests of the children and not a desire
to punish a recalcitrant parent”. 4AD concludes that based on all the relevant
factors, the father established by a preponderance of the evidence that
relocation was in the children’s best interests.
·
Matter
of Joseph E.K. (CAF 13-13-01888) – In this termination of parental
rights matter, the mother appealed from two separate orders, which terminated
her parental rights on the grounds of mental illness and permanent neglect. 4AD
first finds that the Family Court correctly found that DSS established by clear
and convincing evidence that the mother suffered from a mental illness and was
unable to provide adequate care for the child. The mother suffered from
schizophrenia, which caused her to have delusions and grossly erroneous
beliefs. 4AD then explains that the lower court erred in also finding that the
mother permanently neglected her children. “The mother ‘could not be found to
be mentally ill to a degree warranting termination of [her] parental rights and
at the same time be found to have failed to plan for the future of the child[]
although physically and financially able to do so’”.
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