Criminal Case Summaries:
·
People
v Hoffert (KA 14-00714) – 4AD reverses the lower court’s order
dismissing count two of the indictment, which charged D with sexual abuse in
the first degree. 4AD finds that count two was supported by legally sufficient
evidence and should not have been dismissed. The grand jury evidence showed
that D went to his ex-girlfriend’s house and entered while she slept. He choked
and beat her, and placed his fingers in her vagina after stating “I’m going to
see if you had sex.” 4AD finds that the grand jury was permitted to infer from
this evidence that D engaged in sexual contact for the purpose of gratifying
his sexual desire. 4AD explains that “To require, as defendant suggests, that
the reviewing court accept the explanation that defendant proffered for this
conduct, ‘would skew a reviewing court’s inquiry and restrict, if not
extinguish, the [g]rand [j]ury’s unassailable authority to consider logical
inferences that flow from the facts presented to it’ ”.
·
People
v Johnson (KA 13-01618) – 4AD affirms D’s judgment of conviction
following his guilty plea to reckless assault of a child, but modifies an order
requiring D to pay restitution to DSS. D was charged after doctors determined
that the child sustained serious physical injury as a result of shaken baby
syndrome. At the plea colloquy D explained that he quickly grabbed the child
from a basinet on one occasion, and had also played with the child by “tossing”
him in a spinning motion. The lower court thereafter held a presentence hearing
regarding shaken baby syndrome, at which the prosecutor presented the testimony
of the child’s treating physician. 4AD finds that, following the hearing, the
lower court properly denied defense counsel’s request for an adjournment to
consult with his own expert. 4AD notes that the lower court stated that counsel
had effectively cross-examined the prosecutor’s expert. 4AD further finds that
D was not denied his right to the effective assistance of counsel based on
counsel’s failure to call an expert witness. D failed to establish that such
expert testimony was available or that D was prejudiced by its absence. The
record also showed that D consulted with medical professionals and adequately
examined the prosecutor’s expert.
With respect to the restitution
order, 4AD first notes that because the order affects the legality of D’s
sentence, it is not encompassed by D’s valid waiver of appeal. 4AD finds that
the lower court erred in determining that DSS qualified to obtain restitution
for the costs of providing foster care to the child. The child was placed with
DSS following proceedings in Family Court, and DSS was thus performing its
statutory duty to care for the child pursuant to Social Services Law § 398 (2)
(b). 4AD explains that the Legislature has specifically provided for the
governmental agencies that are entitled to restitution when performing their
statutory duties. “[H]ere, in the absence of legislative intent that DSS is a
‘victim’ pursuant to Penal Law § 60.27, we decline to impose an obligation on
defendant to pay restitution for the expenditure of public funds for providing
foster care for the victim.”
·
People
v White (KA 14-00932) – 4AD affirms the lower court’s order, which
granted D’s motion for a new trial under CPL 440 based on newly discovered
evidence. D was convicted in 2006, at a nonjury trial, of rape and sexual
abuse, based solely on the complainant’s testimony and the presence of semen in
her vagina. Although the semen could not be tested for DNA at the time, the
prosecutor argued on summation that its presence corroborated the complainant’s
testimony. After D was released from prison, more sophisticated DNA testing
established that D was not the source of the semen, and that it instead came
from the complainant’s then-boyfriend. 4AD rejects the prosecutor’s argument
that the newly discovered evidence would not have made a difference. 4AD
explains that the prosecutor relied on the presence of the semen during
summation, and the lower court acknowledged that it relied on those arguments
to find D guilty.
Family Law Case Summaries:
·
Matter
of Brown v Gandy (CAF 13-01337) – In this custody/visitation matter,
4AD rejects the father’s contention that he was denied his right to the
effective assistance of counsel. In doing so, 4AD expressly overrules its prior
case law that imposed an actual prejudice requirement in order to establish
ineffective assistance (see e.g. Matter
of Jada G. [Marcella G.], 113 Add 1138, 1138). 4AD explains that “because
the potential consequences are so drastic, the Family Court Act affords
protections equivalent to the constitutional standard of effective assistance
of counsel afforded defendants in criminal proceedings”.
·
Matter
of Hill v Flynn (CAF 13-00239) – In this custody/visitation matter, 4AD
finds that the Family Court properly denied the mother’s relocation petition.
The mother sought to relocate with the child from Yates County to Tennessee.
4AD explains that due to the distance between the two locations, the father’s
relationship with the child would be adversely affected. The mother also failed
to establish that the employment she was offered in Tennessee would last for
any significant period of time, or that similar employment opportunities were
not available in New York.
·
Matter
of Oneida County DSS v Christman (CAF 14-00847) – In this child support
matter, 4AD finds that the Family Court erred in denying DSS’s objection to the
Support Magistrate’s order, which found that the father was relieved of his
child support obligation because the child was emancipated. 4AD explains that a
parent is obligated to support a child until the age of 21. But, under the
doctrine of constructive emancipation, a noncustodial parent is relieved of his
or her support obligation if a child of employable age “actively abandons the
noncustodial parent by refusing all contact and visitation”. If the child
abandons a parent, that parent is not obligated to reimburse DSS for any public
assistance expended to support the child. Here, 4AD finds that the father
failed to establish constructive emancipation. Specifically, the father offered
no evidence that the child had abandoned a relationship with him, and the
record showed that the father had provided monetary support to the child, and communicated
with the child throughout the proceedings.
·
Matter
of Lacey-Sophia T.-R. (CAF 13-01836) – In this neglect matter, 4AD
reverses the lower court’s order finding that the mother neglected the child. DSS
filed the petition after the 20-year-old mother left the 1½-year-old child with
the man and woman with whom she and the child lived. The mother travelled to
Syracuse from Jefferson County for a job opportunity, but then went to Virginia
without notifying the man and woman. DSS alleged that the mother failed to make
an appropriate plan for the care of the child during her absence. It further
alleged that the mother would go out to drink and party, had called the child
names and handled the child roughly on at least one occasion, and had possible
mental health issues. 4AD finds that DSS failed to prove by a preponderance of
the evidence that the child’s mental, emotional, or physical condition had been
impaired or was in imminent danger of becoming impaired. 4AD explains that the
mother left the child with appropriate caregivers, and remained in daily
contact with them by telephone. There was also no proof establishing a
connection with the mother’s alleged mental health condition, or her behavior,
and any actual or potential harm to the child.
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