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Case Summaries – Fourth Department Decisions Released on December 22, 2017

Published on January 2, 2018 9:44 am by Piotr Banasiak in Appeals Blog

Criminal Cases:

People v Barnes (KA 09-02123) – D was convicted of three counts of second-degree burglary and one count of first-degree reckless endangerment. The lower court sentenced him, as a persistent felony offender, to an aggregate term of 82 years to life in prison. 4AD finds the sentence is harsh and severe and reduces it to an aggregate term of 35 years to life. 4AD also concludes that D’s conviction of first-degree reckless endangerment was supported by legally sufficient evidence. The proof showed that D drove at a police officer at a “relatively fast” speed, and the officer was forced to jump out of the way to avoid being struck. Those circumstances created a grave risk of death to the officer and showed that D acted with depraved indifference to human life. 4AD notes that People v Van Gorden (147 AD3d 1436) is distinguishable from this case, because there, the defendant drove at a police car instead of a person on foot, and the risk of death was significantly smaller.

People v Blauvelt (KA 15-00794) – In this appeal by the prosecution, 4AD modifies the lower court’s order, which dismissed the indictment against two defendants, on the grounds that the evidence was legally insufficient and the prosecutor’s misconduct impaired the integrity of the grand jury. 4AD finds that the evidence of serious physical injury was legally sufficient, but agrees with the lower court that the prosecutor engaged in pervasive misconduct by (1) repeatedly asking leading questions, (2) introducing hearsay evidence, (3) asking the defendants whether other witnesses were lying, (4) asking one of the defendants whether they used illegal drugs on the night in question, and (5) acting as an unsworn witness by stating personal opinions during the instructions to the grand jury. 4AD concludes, nonetheless, that the prosecutor should be given leave to represent the charges to another grand jury, and notes that “the prosecutor has offered to recuse himself and seek the appointment of a special prosecutor to handle the resubmission.”

People v Givans (KA 16-00732) – 4AD reserves decision and remits the matter for a Darden hearing. The lower court denied the hearing after the prosecutor asserted that the confidential informant (CI) was unavailable because he was in California. Subsequently, the prosecutor produced an unsworn letter, allegedly from the CI’s drug-treatment facility, stating that the CI required uninterrupted care. 4AD explains that when a search warrant application does not establish probable cause without the statements of a CI, the prosecutor must produce the CI for in-camera questioning. If the CI cannot be produced despite diligent efforts, the prosecutor may demonstrate that the CI is legitimately unavailable, and establish the CI’s existence by extrinsic evidence. Here, the prosecutor’s bare assertion and the unsworn letter were insufficient to show that the CI was legitimately unavailable.

People v Hall (KA 06-00538) – 4AD reverses D’s conviction, finding that the lower court failed to make any record findings that D needed to wear a stun belt at trial. 4AD previously granted D’s petition for a writ of error coram nobis, based on counsel’s failure to raise this issue on D’s first appeal. 4AD rejects the prosecutor’s contention that D’s conviction became final before the Court of Appeals decision in People v Buchanan, and that Buchanan should not be applied retroactively to allow a collateral attack on D’s judgment of conviction. Because D’s coram nobis motion was granted, 4AD was considering D’s appeal de novo and this was thus not a collateral attack on the conviction. Also, Buchanan did not announce a new rule of law, and 4AD thus applies the common law doctrine that the appeal should be decided based on the law as it presently exists.

People v Jiles (KA 12-02285) – 4AD, in an opinion by Presiding Justice Whalen, holds that police did not need a warrant to obtain D’s historical cell site information, which placed him in the vicinity of a murder scene. Police obtained D’s cell phone records for a four-day period, pursuant to a request under the federal Stored Communications Act. 4AD first notes that this case involves only historical cell site information that was generated when D actually used his phone to make and receive calls and messages. Under these circumstances, the acquisition of the records did not constitute a search under the federal constitution, because D voluntarily disclosed his general location to his service provider, and a person does not have a reasonable expectation of privacy to information voluntarily disclosed to a third party. 4AD also concludes that there is “no sufficient reason” to afford cell site location information greater protection under the New York constitution.

People v Maxwell (KA 16-00468) – 4AD reverses D’s conviction, upon a plea of guilty, of three counts of second-degree kidnapping and one count of second-degree criminal possession of a weapon. The lower court told D that it would sentence her to concurrent terms of 3 to 6 years imprisonment. It ultimately imposed those sentences on the kidnapping counts, but imposed a sentence of 3½ years plus five years of postrelease supervision on the weapon count. 4AD finds that the plea was not knowing, voluntary, and intelligent, because the lower court never advised D that her sentence on the weapon count would include a period of postrelease supervision. 4AD explains that the entire plea must be vacated, because the court’s failure to advise D of postrelease supervision impacted the entire plea agreement.

People v Pottinger (KA 14-00969) – 4AD reverses the lower court’s order, which denied without a hearing D’s CPL 440.10 motion to vacate his judgment of conviction on the grounds of ineffective assistance of counsel and actual innocence. D’s motion included his affidavit, an alibi witness’s affidavit, and a police report indicating that two alibi witnesses had been interviewed by police and made statements supporting D’s alibi. Those facts warranted a hearing to determine whether counsel was ineffective for failing to (1) investigate D’s alibi defense and (2) calling those witnesses at trial. D’s motion also set forth a prima facie case of actual innocence, which likewise warranted a hearing on the merits.

People v Smith (KA 15-01256) – 4AD affirms D’s conviction for third-degree criminal sale of a controlled substance but splits 3 to 2 on whether D’s waiver of appeal was valid. The majority finds that the waiver was invalid because the lower court failed to adequately specify that the appeal waiver was a condition of the plea that was separate from the other rights D automatically forfeited as a result of the plea. Although the court noted that the appeal waiver was “[o]ne other condition” of the plea, that statement was immediately preceded by a colloquy about the rights D was forfeiting. The concurrence, on the other hand, argued that the lower court’s oral colloquy coupled with the written waiver established that D’s appeal waiver was knowing and voluntary. The concurrence explains that after the court explained the rights D was forfeiting, it asked D whether he understood that the guilty plea was the same as a conviction after trial, and only then stated that the appeal waiver was one other condition of the plea. “[T]he court’s separate treatment and prefatory explanation of the waiver of the right to appeal” was sufficient to show that the waiver was separate and distinct from the other rights D automatically forfeited.

People v Solivan (KA 16-01414) – 4AD reverses D’s conviction for second-degree criminal possession of a weapon, because the lower court erred in denying D’s motion to suppress physical evidence. An officer saw D sitting in a parked car that lacked a valid inspection sticker. The officer also noticed a kitchen knife on the floorboard of the car. The officer asked D to exit, then searched him and found marijuana in D’s pocket. Police later conducted an inventory search of the car. 4AD concludes that the officer’s search was illegal. First, after he exited the car, there was no indication that D was armed or posed a threat to the officer, and thus the search could not be justified as a frisk for officer-safety purposes. Second, the officer’s search of D’s pockets went beyond what is permitted for a protective pat-down. Third, a search of a person is not permitted for an arrest for a traffic infraction or, as in this case, a parking violation. 4AD further concludes that the inventory search was improper, because there was no evidence that the search was conducted pursuant to a departmental policy or that such a policy even existed.

Family Law Cases:

Matter of Neveah G. (CAF 15-01571) – In this termination of parental rights case, 4AD affirms the lower court’s order terminating the mother’s parental rights on grounds of mental illness. A psychologist diagnosed the mother and father with antisocial personality disorder, and testified that persons with this disorder tend toward reckless and impulsive behavior that prioritizes their desires over those of others, particularly young children. The psychologist further testified that any child in the care of either parent would be at imminent risk of harm both now and for the foreseeable future. 4AD notes that the reliability of the psychologist’s diagnosis and prognosis is underscored by evidence that another child of these parents suffocated to death as a result of a dangerous sleeping arrangement, even though the parents had been warned of the danger. The parents also failed to obtain prompt medical care for another child who was seriously injured.

Matter of Jaydalee P. (CAF 16-01340) – In this article 10 matter, 4AD rejects the mother’s argument that the lower court erred in denying her request to appear at trial by telephone and for an adjournment. Sometime after receiving notice of a trial date, the mother moved to Michigan. She wrote a letter to the court before trial, indicating that she did not have money to travel to New York, and asking if she “could get a phone interview”. On the day of trial, the court told the mother’s attorney it was denying her request, and the attorney made no objection. 4AD concludes that, under these circumstances, the mother did not preserve for appellate review her contention that the lower court should have granted an adjournment. 4AD further concludes that the lower court did not err in denying her request to testify by phone, because Domestic Relations Law § 75-j (2), which permits telephonic testimony, is only permissive, and does not require courts to allow such testimony in all cases. Here, the court did not abuse its discretion because the mother moved to Michigan less than one month before trial without notifying the petitioner.

Matter of Smith v Loyster (CAF 16-02016) – In this custody/visitation matter, 4AD modifies the lower court’s order by striking the paragraph conditioning the father’s ability to seek modification of the custody order on his completion of a substance abuse evaluation and any recommended treatment. 4AD explains that the Family Court lacked authority to impose such a condition. 4AD also finds that the mother established a change of circumstances to modify the prior custody/visitation order. The proof showed that the father was intoxicated on an occasion when the mother dropped off the subject child for visitation. In light of the father’s history of alcohol abuse, that testimony established both a change of circumstances and that a modification of the prior order would be in the child’s best interests.