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Case Summaries – Fourth Department Decisions Released on February 3, 2017

Published on February 8, 2017 1:38 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Betances (KA 14-00578) – 4AD reverses D’s conviction, finding that the lower court erred in denying a challenge for cause to a prospective juror. The prospective juror indicated that D “obviously” must have done something wrong or he would not be in court. The court asked the juror questions, but cut her off before she could reply to one of the questions. The court’s final question failed to establish the juror’s impartial state of mind. Under these circumstances, the court abused its discretion in denying counsel’s challenge for cause.
  • People v Kendrick (KA 02-00049) – 4AD reverses D’s conviction, finding that the lower court should have granted D’s motion to suppress. D was a passenger in a car in which police found drugs after the driver consented to a search. 4AD concludes that the prosecution failed to establish that the driver’s consent was voluntary. 4AD explains that a single officer testified at the suppression hearing, but that officer, among other things, did not know the reason why police had stopped the car or why the driver was taken into custody, and did not know whether anyone read the driver his Miranda rights. Because there was no evidence at the hearing establishing the legality of police conduct, the driver’s purported consent to search the car was involuntary.

Family Law Case Summaries:

  • Matter of Brink v Brink (CAF 16-00134) – In this child support matter, 4AD finds that the lower court erred in concluding that the father did not establish a sufficient change in circumstances to warrant a modification in his child support obligation. During proceedings on a prior petition, the father presented evidence of a reduction in income during 2013, but the court expressly stated that it would not consider that evidence. In the instant petition, the father again contended that a downward modification was warranted because of, among other things, the reduction in income in 2013 compared to 2012. 4AD finds that the father’s income reduction constitutes a sufficient change in circumstance and should have been considered by the lower court, because the court expressly declined to consider the reduction during proceedings on the prior petition.
  • Matter of Orlowski v Zwack (CAF 15-01029) – In this custody matter, 4AD reverses the lower court’s order granting custody of the subject child to the biological mother. The child’s grandparents had custody of the child for the previous six years. Following a trial, the lower court found that the grandparents failed to establish extraordinary circumstances. 4AD explains that the lower court relied in part on Matter of Suarez v Williams (128 AD3d 20), which was reversed by the Court of Appeals about six months after the trial (26 NY3d 440). 4AD finds that, when evaluated in light of the Court of Appeals’ decision in Suarez, which clarified the extraordinary-circumstances standard in cases involving grandparents, the proof established extraordinary circumstances. 4AD remits the matter for the lower court to determine the best interests of the child.
  • Matter of Rusiecki v Marshall (CAF 15-01575) – In this custody matter, 4AD reverses the lower court’s order which dismissed the mother’s petition seeking modification of an order entered in the State of Florida. The lower court denied the petition for lack of jurisdiction, because the prior order expressly stated that Florida retained jurisdiction over the matter. By the time the mother filed her petition, both parents and the child had been living in New York for several years. 4AD concludes that, under the Uniform Child Custody Jurisdiction and Enforcement Act, New York courts have jurisdiction over the matter notwithstanding the Florida court’s reservation of jurisdiction, given that neither parent currently resides in Florida, and New York is the child’s home state.