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Case Summaries – Fourth Department Decisions Released on February 2, 2018

Published on February 13, 2018 10:49 am by Sara Goldfarb in Appeals Blog

Criminal Cases:

People v Carter (KA 13-00303) – 4AD, in a 3 to 2 decision, reverses D’s conviction for second-degree murder, finding that the verdict is against the weight of the evidence. The People’s case rested on three points of circumstantial evidence: (1) that D entered the hotel with the decedent at approximately 7:00 p.m., some 15 hours before his dead body was found in the hotel room; (2) that D repeatedly lied to the police when he said that he did not know the decedent and had never met him; and (3) that the decedent’s vehicle was found abandoned on a city street approximately six-tenths of a mile from D’s residence. 4AD explains that the mere fact that D was in the hotel room with the decedent, and most likely engaged in sexual acts with him, does not establish beyond a reasonable doubt that D is the person who killed him. The decedent was known to engage in “high-risk behavior,” i.e. hooking up with men he met online and engaging in consensual sexual acts with them, sometimes meeting up with more than one partner on the same day. 4AD notes that the evidence suggests that the decedent may have left the room that night, that someone other than the decedent and D had also been in the room, and that the Medical Examiner did not determine the time of the decedent’s death. Additionally, the decedent’s email history discussed meeting up with several men other than D and the decedent told a coworker he was meeting up with an ex-boyfriend that weekend, who decedent’s friend knew to be abusive and unfaithful. DNA samples were never collected from these men, so it is unknown whether they match the DNA samples obtained from the hotel room or the decedent’s vehicle.

Justices Carni and Curran dissent. The dissent argues that weight of the evidence review is not an “open invitation” for an appellate court to substitute its judgement for that of the jury. They conclude that the jury was justified in finding D guilty of second-degree murder as there was “ample circumstantial evidence” supporting that conclusion.

People v Downey (KA 16-01438) – 4AD reverses D’s conviction because the lower court provided an erroneous jury instruction regarding the elements of burglary in the first degree. D was charged with entering a house where his sister resided, and then entering another resident’s room and assaulting that person. 4AD finds that the lower court failed to instruct the jury that it was required to determine whether the house consisted of “two or more units” and whether the resident’s bedroom was a unit that was “separately secured or occupied.” As a result, the court’s instruction did not adequately convey the meaning of “building” “and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met.”

People v Jones (KA 14-01861) – 4AD reverses D’s conviction for second-degree criminal possession of a forged instrument because the lower court improperly admitted two categories of hearsay evidence. First, the lower court erred in admitting in to evidence a printout of electronic data that was displayed on a computer screen because the People failed to establish that the printout falls within the business records exception to the hearsay rule. 4AD explains that the People were obligated to establish that the “entrant was under a business duty to obtain and record the statement [reflected in the printout].” Second, the court improperly admitted an investigator’s testimony about the results of a database search because the People did not establish the requisite foundation for his testimony. 4AD explains that the investigator did not testify that he “is familiar with the practices of [the] company that produced the records at issue” and that he “generally relies upon such records.” Accordingly, 4AD grants a new trial on counts one and three of the indictment.

People v Keith B.J. (KA 15-01389) – 4AD reverses D’s conviction for second-degree criminal possession of a weapon, in the interest of justice, finding that D should have been afforded youthful offender (YO) status. Under the facts of this case, there are sufficient mitigating circumstances to render D eligible for YO: D was 17 years old at the time of the crime, had no prior criminal record or history of violence, has accepted responsibility for his actions, and has expressed genuine remorse. Moreover, the presentence report recommended YO treatment, and the record establishes that D has the capacity for a productive and law-abiding future. The only factor weighing against affording YO status is the seriousness of the crime. 4AD vacates D’s conviction and remits the matter for sentencing.

People v McDonald (KA 14-00040) – 4AD vacates D’s sentence as to count three of the SCI and remits the matter for resentencing. 4AD explains that the sentence imposed by the lower court on that count, i.e., a determinate term of incarceration for failure to register internet identifiers as a class D felony, is illegal. That crime is defined in the Correction Law, and “only a person convicted of a felony defined by the Penal Law may be sentenced as a second felony offender” to a determinate term of incarceration.

People v McMillian (KA 14-00660 and 14-00661) – 4AD modifies D’s sentence because the lower court erred in directing that the period of postrelease supervision in appeal No. 2 run consecutively to the period of postrelease supervision in appeal No. 1. Penal Law § 70.45 (5) (c) requires that the periods of postrelease supervision merge and are satisfied by the service of the longest unexpired term. 4AD modifies the judgement in appeal No. 2 accordingly.

People v Roberts (KA 16-00618) – 4AD reverses D’s conviction pursuant to a guilty plea to second degree criminal possession of a weapon (“CPW”). Officers responded to two broadcasts stating that a shooting had occurred at a bar. The broadcasts did not indicate that the shooting occurred inside or outside, but did state that the suspect was a Hispanic male of medium build. Officers encountered 5 people in the bar parking lot, 1 Hispanic, 2 African Americans, and 2 Caucasians. The officer searched the parking lot and found blood spots and a bullet fragment 10-25 feet away from this group of 5 people. Upon questioning from one officer, an unidentified member of the group denied seeing or hearing anything about a shooting. The officer frisked D and discovered a weapon. D did not match the description of the medium build Hispanic put out over the radio. 4AD held that the initial encounter was lawful at its inception, however, the People conceded that this encounter constituted a level three stop, thereby requiring reasonable suspicion that D was involved in a felony or misdemeanor. The officer had no basis to conclude that D, who did not match the radio description, was the suspect, and the officer did not testify that he believed D was carrying the weapon. The People provided no other evidence demonstrating that the officer’s safety was in jeopardy. The weapon was thus fruit of an illegal search and should have been suppressed.

People v Tarbell (KA 16-01795) – In this appeal by the prosecution,  4AD affirms the lower court’s suppression of D’s statements to police during a roadside interrogation conducted without Miranda warnings. A vehicle registered to D struck a guardrail and came to rest in the middle of the interstate, where it was hit by a bus, causing injuries to several of the passengers. Roughly one hour later, some distance from the accident scene, police encountered D and began to question him at the side of the road. Police later placed D in the back of a patrol car. During questioning from inside the police cruiser, D admitted he drove the vehicle and struck the guard rail. 4AD rejected the People’s contention that the emergency doctrine justified further questioning of D without Miranda warnings. Specifically, the Court concluded that the People failed to demonstrate the first part of the People v Doll (21 NY3d 665, 670 [2013]) three-part test for demonstrating an emergency, i.e. that circumstances known to the officer support an objectively reasonable belief that further questioning was necessary to render emergency assistance to someone in need.

People v Willingham (KA 14-01859) – 4AD reverses D’s conviction on sufficiency grounds. Following a bench trial, D was convicted of second degree criminal possession of a weapon (“CPW”). Police observed a co-D enter a vehicle with a distinctive long gun. Four people, including D, occupied the vehicle, which police surreptitiously pursued until they lost sight of it. After later stopping the vehicle and finding nothing inside, police did find the distinctive long gun, another handgun, and D’s cellphone on the ground at the approximate point at which police lost the vehicle during pursuit. 4AD holds that the presumption of possession for a gun found inside a vehicle (PL § 265.15 [3]) did not apply here where the police observed the weapon in the sole possession of the co-D (PL § 265.15 [3] [a]). The People’s contrary contention that D, and not the co-D, threw or assisted in throwing the long gun from the vehicle was nothing more than “speculation.” The People failed to introduce evidence supporting an accomplice theory for CPW second.

People v Snell (KA 15-01993) – The filing of an “accusatory instrument” charging D with two misdemeanors did not start the clock running for purposes of statutory speedy trial where the People had no knowledge of the accusatory instrument. Therefore, the 6 months and 23 days between the filing of the accusatory instrument and the date the People became aware of it was properly excluded as an exceptional circumstance beyond the DA’s control (CPL 30.30 [4] [g]).

People v Taylor (KA 15-00214) – 4AD affirms D’s convictions of multiple counts of first-degree murder  and first-degree burglary, but reduces the conviction for second-degree arson to third-degree arson  and remits the matter for re-sentencing. The Court reduces the arson charge because the People did not introduce evidence establishing that the decedents were alive at the time the fire was set. The Court adopts a definition of “person” to include only those living (PL § 10.00 [7]) and analogizes to rape cases in which the complainant must have been alive at the time of the sexual penetration.

The court rejects D’s contention that obtaining historical cell site location information (“CSLI”) violated his constitutional rights. The court cites to its recent decision that CSLI constitutes a business record maintained by the cell phone service provider and therefore is not subject to a reasonable expectation of privacy under the third party doctrine (People v Jiles, — AD3d —, —, 2017 Slip Op 08944, *3 [4th Dept 2017]). This ruling applied to the New York state constitution, which afforded no greater protection than the federal constitution. The Court rejected D’s further contention that any violation under the federal Stored Communications Act (“SCA”) required suppression of the historical SCLI as a remedy. Instead, the SCA provides only for criminal, civil, or administrative remedies for any violation of its provisions.

Family Law Cases:

Matter of B.,Jr., William J. v S., Dayna L. (CAF 16-01565) – In this article 6 proceeding, 4AD rejects the mother’s argument that the lower court abused its discretion in determining that her daughter’s out-of-court statements describing her alleged sexual abuse by the mother’s boyfriend were sufficiently corroborated. 4AD applies Family Court Act § 1046 (a) (vi) and explains that they have routinely applied its provisions as “an exception to the hearsay rule in custody cases involving allegations of abuse and neglect . . . where . . . the statements are corroborated.” 4AD concludes that the daughter’s statements are corroborated because of her “age-inappropriate knowledge of sexual conduct.” Moreover, the statements described “unique sexual conduct” that the boyfriend engaged in with the daughter, and the father submitted evidence that the mother and her boyfriend had admitted that the boyfriend engaged in such conduct with the mother during their sexual relations.

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