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Case Summaries – Fourth Department Decisions Released on July 8, 2016

Published on July 19, 2016 12:43 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Bertollini (KA 15-00788) – 4AD reverses D’s conviction for first-degree reckless endangerment following a guilty plea because D’s recitation of the facts at the plea colloquy cast significant doubt upon his guilt of that crime. Specifically, the factual recitation negated the depraved-indifference element. The lower court attempted to conduct a further inquiry, but 4AD finds that it was insufficient to reestablish the negated element.
  • People v Cobb (KA 14-01483) – 4AD reverses the lower court’s order finding that D is a level three risk pursuant to SORA. The lower court applied the wrong standard of proof in denying his request for a downward departure—the clear and convincing evidence standard rather than preponderance of the evidence.
  • People v Freeman (KA 13-00465) – 4AD affirms the lower court’s order which found that D voluntarily consented to the search of his home by police. The majority explains that, although D was in custody when he consented to the search, he assisted police in gaining entry to his home. When police observed marijuana upon entering the home, they read D his Miranda rights, and D consented to a search both verbally and in writing.
  • Whalen, P.J., and Troutman, J. dissent, finding that D did not voluntarily consent. The dissent explains that D was stopped by police for a Vehicle and Traffic Law violation as he pulled into his driveway, and he was placed in custody for having a suspended license. The officer next found marijuana in the car D had been driving, and told D that although the charge was not serious, D would need to have identification if there was any chance for him to make bail and get out of jail. D accompanied police into his house, and they observed marijuana in plain view. Police told D he was under arrest. D then gave police permission to search verbally, and signed a written consent that contained various errors. Under these circumstances the dissent finds that D did not voluntarily consent to the search. D was in custody, handcuffed, subjected to highly intrusive and coercive police tactics, he was not advised of his right to refuse consent, and he was inexperienced in dealing with police.
  • People v George (KA 14-01893) – In this SORA matter, 4AD modifies the lower court’s order by determining that D is a level two risk. 4AD finds that the lower court should have granted a downward departure from level three based on the relatively slight age difference between the 19-year-old defendant and the 14-year-old victim, as well as the fact that the sexual intercourse was not forcible. Under these circumstances, the assessment of 25 points under risk factor two for sexual contact with the victim resulted in the overassessment of points.
  • People v Helms (KA 13-00647) – 4AD vacates D’s sentence, finding that he was improperly sentenced as a second felony offender because his conviction for burglary in Georgia did not qualify as a predicate felony. 4AD reasons that the Georgia burglary statute is not equivalent to the New York statute because it does not contain a requirement that a defendant knowingly enters or remains unlawfully in a dwelling.
  • Justice Curran dissents, finding that a knowledge requirement is implicit in the Georgia statute. The dissent notes, among other things, that the First Department, in People v Toliver (226 AD2d 255), has reached a contrary conclusion from that of the majority.

Family Law Case Summaries:

  • Matter of Brian S. (CAF 15-00314) – In this neglect matter, 4AD reverses the lower court’s order finding that the mother neglected her three children, because the Attorney for the Child failed to advocate for one of the children’s position. 4AD explains that an AFC may decline to advocate a child’s position only if one or two circumstances are present: (1) the child lacks the capacity for knowing, voluntary and considered judgment, or (2) where following the child’s wishes is likely to result in a substantial risk of serious, imminent harm to the child. Here, the AFC failed to determine whether either of these two conditions existed, and to inform the lower court of the children’s articulated wishes. 4AD notes that the three children were teenagers, so they possessed the capacity for knowing and considered judgment, and there was no indication that their wishes would result in risk of harm.