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Case Summaries – Fourth Department Decisions Released on February 10, 2017

Published on March 3, 2017 1:58 pm by Piotr Banasiak in Appeals Blog

Criminal Cases:

  • People v Clay (KA 14-01509) – 4AD reverses D’s conviction because the prosecution failed to give notice of its intent to introduce identification evidence pursuant to CPL 710.30. A police officer identified D in a single-photo identification procedure about 2 hours after the incident. The prosecutor first gave notice of the identification at trial, and the lower court held a hearing over D’s objection. After the hearing the court ruled that the identification was confirmatory and a CPL 710.30 was not required. 4AD finds that this was error. The circumstances of the officer’s initial viewing of D were not the sort of face-to-face interaction, with the goal of making an identification, to which the confirmatory exception applies. Instead, during a traffic stop, the officer observed D and several other occupants of the vehicle. These circumstances required a CPL 710.30 notice.
  • People v Kraatz (KA 14-01338) – 4AD affirms D’s conviction, finding that the evidence was legally sufficient to establish that the victim sustained a “physical injury”. During a robbery, D grabbed the victim’s arm, squeezed it, and threatened to kill her. The victim described the pain as “excruciating” and said she had a bruise on her hand afterward. Though the victim did not seek medical treatment, 4AD concludes that the jury was entitled to credit her testimony regarding the extent of the pain she experienced.
  • Justice Curran dissents, and argues that the evidence was legally insufficient. The dissent contends that the instant decision conflicts with prior 4AD decisions, and the majority’s reliance on the Court of Appeals decision in People v Chiddick is misplaced. The Court in Chiddick placed emphasis on the objective evidence of the victim’s injury, and the victim there sought medical treatment. The dissent disagrees with the majority to the extent it endorses an entirely subjective standard for determining whether a victim sustained a physical injury.
  • People v Scerbo (KA 13-01883) – 4AD reverses D’s conviction because the lower court erred in denying a peremptory challenge to a prospective juror. During jury selection, defense counsel momentarily lost count of the number of jurors that had been selected, and declined to challenge a particular juror. When the court told counsel that juror was the 12th juror, counsel asked to exercise a peremptory challenge. 4AD finds that under the circumstances, the lower court abused its discretion in denying the challenge. 4AD notes that the jury had not yet been sworn, the juror had not been informed that he had been chosen, and no alternates had been selected.
  • People v Wallace (KA 15-00176) – 4AD affirms D’s conviction for criminal possession of a weapon in the second degree. The charge arose when D brought a gun with him to work as a swing manager at McDonald’s and accidently shot himself. 4AD rejects D’s argument that the “place of business” exception in the statute applies under the circumstances. 4AD explains that the exception has been narrowly construed to apply to areas where a person has a possessory interest and to which the public has limited access. Under the facts here, where D was prohibited from bringing a gun to work, applying the exception would controvert the meaning and intent of the statute.
  • Justice Lindley dissents, and argues that the place of business exception should apply. The dissent explains that although decades-old Appellate Division cases have construed the statute narrowly, the statute is clear and unambiguous on its face, and should apply to the circumstances here. In addition, although D was prohibited from bringing a gun to work, that policy has no bearing on whether D’s conduct was legal, as opposed to being grounds for termination of his employment.
  • People v White (KA 13-01880) – 4AD reverses D’s conviction because D was denied his right to testify before the grand jury. 4AD explains that D sent a timely request to testify at the grand jury before the indictment was filed, and it was of no moment that the grand jury had already voted to issue an indictment. D was entitled to testify before the grand jury, which would have had the opportunity to revote the case.