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Case Summaries – Fourth Department Decisions Released on June 30 & July 7, 2017

Published on August 9, 2017 9:44 pm by Piotr Banasiak in Appeals Blog

Criminal Cases:

  • People v Colon (KA 15-01399) – 4AD reverses D’s conviction because the lower court erred in denying his motion to withdraw his guilty plea. At the time D pled guilty, the lower court incorrectly assured him that he would be able to challenge the sufficiency of the grand jury evidence on appeal. Once D learned that he could not challenge that evidence on appeal, he moved to withdraw his plea. 4AD concludes that, under the circumstances, D’s plea was not knowing, voluntary, and intelligent because the lower court misadvised him about the consequences of pleading guilty, and the court should have granted his motion to withdraw the plea.


  • People v Hargis (KA 15-01189 & KA 15-01190) – 4AD reverses D’s convictions because the lower court erred in denying a challenge for cause to a prospective juror. In response to defense counsel’s questions about whether the juror would have to hear D testify, the juror twice said that she would like to hear from everyone. Later, when the court asked the entire panel whether anyone would need to hear from the defendant in order to render a verdict, the juror remained silent. 4AD finds that the juror’s responses suggested that D had an obligation to testify, and cast serious doubt on her ability to be impartial. The juror’s lack of a response to the court’s question did not constitute an unequivocal assurance of impartiality that would warrant a denial of D’s causal challenge.


  • People v Sprague (KA 14-00190) – 4AD modifies D’s conviction because several counts charging first-degree sexual abuse were multiplicitous. 4AD explains that the victims testified about simultaneous acts of hand-to-vagina, and hand-to-penis sexual contact. A defendant may not be charged with multiple counts of sexual abuse where the instances of sexual contact constitute “a single, uninterrupted criminal act”. Here, D could not be charged with separate counts for the instances of sexual contact that occurred simultaneously.
  • People v Brown (KA 14-02097) – 4AD concludes that D was denied the effective assistance of counsel at sentencing because defense counsel became a witness against D and took a position adverse to him. 4AD vacates D’s sentence and remits the matter for a new sentencing proceeding.


  • People v Gates (KA 16-02069) – 4AD, in a 3 to 2 decision, reverses D’s conviction because the lower court erred in denying his motion to suppress physical evidence and statements. After a police officer pulled D over on Interstate 81 for speeding, he saw several large nylon bags with “square edged contours” in the back seat. The officer asked D what was in the bags, and D’s answers became increasingly implausible. D then asked to leave, but the officer instead asked him to exit the car, and then spoke to his passengers. Once the officer spoke to D, he admitted that the bags contained untaxed cigarettes. 4AD concludes that the officer’s initial questions about the contents of the bags were an impermissible level two, common-law inquiry, because the officer lacked a founded suspicion that criminal activity was afoot. Such a founded suspicion did not arise until after the officer asked D what the bags contained. Thus, the statements D made in response to the questions and the untaxed cigarettes seized by police should have been suppressed.


  • Justices Winslow and Scudder dissent. The dissent contends that the officer’s questions about what was in the bags in the backseat constituted a permissible level-one request for information. D’s increasingly implausible answers to the officer’s level one inquiries, coupled with his nervousness and the officer’s observation of the bags and the sagging rear end of the car, gave rise to a founded suspicion. That suspicion permitted the officer to ask more invasive questions focused on D’s possible criminality.


  • People v Reeves (KA 13-00392) – 4AD, in a 4 to 1 decision, reverses D’s conviction because the lower court erred in denying his motion to suppress identification evidence. Police conducted a single-photo identification procedure before and after a drug buy. 4AD previously remitted the matter for a hearing to determine the reliability of the identification procedure. At the hearing, the lower court ruled that the photograph police used could not be admitted into evidence. 4AD concludes that without either the photograph, or other evidence detailing the identification procedure, the prosecution failed to meet its burden of going forward to establish the admissibility of the officer’s identification.


  • Justice Lindley dissents, and argues that there is no legal basis upon which to suppress an identification on reliability grounds, as opposed to suggestiveness. Even if lack of reliability is a ground for suppression, here, the identification procedure was not unreliable.


  • People v Schafer (KA 16-01615) – In this appeal by the prosecution, 4AD reverses the lower court’s order granting D’s motion to suppress physical evidence. Two police witnesses failed to show up on the day of a scheduled suppression hearing. The prosecutor told the court that both witnesses had been subpoenaed, and asked for an adjournment. The court reserved decision, and the next day the prosecutor sent the court a letter explaining that one officer had been in a meeting, and the other was sick, but that both would be available at an adjourned date. The court denied the adjournment request, finding that the prosecution had a full and fair opportunity to present its case. 4AD concludes that the lower court abused its discretion in denying the adjournment request, because the prosecutor subpoenaed the witnesses who would have provided material testimony, it was the first request for an adjournment, and there was minimal prejudice to D, who was not in custody.

Family Law Cases:

  • Matter of Farner v Farner (CAF 16-02055) – In this custody/visitation matter, 4AD modifies the lower court’s order, which dismissed the father’s modification petition without a hearing. The father made a sufficient evidentiary showing of a change in circumstances to warrant a hearing on the issue whether the existing order should be modified. Although the mother refuted the father’s claim that she was under investigation by the Division of Children and Family Services in Georgia, it was undisputed that she was facing criminal prosecution for a drug charge. The pending prosecution, coupled with the mother’s history of drug and alcohol addiction, was sufficient to warrant a hearing. The father further alleged that the mother had been hospitalized for drug-induced psychosis and was diagnosed with bipolar disorder. Although the mother’s boyfriend recanted the story he told the father about the mother’s hospitalization, such recantation created an issue of fact for a hearing.