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Case Summaries – Fourth Department Decisions Released on June 8 & 15, 2018

Published on June 28, 2018 9:25 am by hiscockadmin in Appeals Blog

Criminal Case Summaries:

People v Bell-Scott (KA 17-00993) – In this appeal by the prosecution, 4AD reverses the lower court’s order granting D’s motion to suppress oral statements made to Syracuse Police detectives. 4AD finds that the evidence at the Huntley hearing establishes that D was not in custody when he made the statements, and thus Miranda warnings were not required. The People “properly demonstrated by unchallenged hearsay testimony” that D voluntarily accompanied the officers to the detectives’ office for questioning. Because D did not dispute that fact, that testimony was sufficient to sustain the People’s burden. Moreover, D was informed that he was not under arrest and that he would be going home that day, was not handcuffed, was permitted to leave the interview room several times, and was not arrested that day. 4AD remits the matter to Supreme Court for further proceedings on the indictment.

People v Perri (KA 14-00587) – 4AD reverses D’s convictions for first-degree sexual abuse and endangering the welfare of a child and grants a new trial. D was interrogated by police and made several inculpatory statements. County court suppressed only D’s post-Miranda warning interrogation statements, but 4AD holds that his pre-Miranda warning statement that he had a “foot fetish” should also have been suppressed because “an interrogational environment existed” at the beginning of the interaction. 4AD finds further error in permitting the DA to introduce D’s grand jury testimony where he rebutted the presumption of competence to testify. During the grand jury proceeding, D alleged a grand government conspiracy that prompted a grand juror to ask whether D had any psychiatric diagnoses. Shortly after the grand jury, two psychiatrists determined D lacked the capacity to understand the proceedings.

People v McIntosh (KA 14-01137) – 4AD modifies D’s convictions by reversing the first-degree manslaughter conviction, but affirms his conviction for second degree murder. D and his roommate were arguing over their affection for a woman. At trial, the evidence showed that the roommate barged into D’s room, and D testified that he used a knife intending only to “poke” the roommate and get him out of his room. D “poked” the roommate in the leg with the knife, causing a non-lethal wound. The scuffle continued, and D also penetrated his roommate’s chest four inches deep, puncturing his heart and killing him. D testified that the roommate ran into the blade, and the medical examiner’s testimony was at least partially consistent with D’s testimony that the roommate was hunched over, barreling toward D like a “linebacker.” D requested, and county court denied, a charge for the lesser-included offenses of second-degree manslaughter and criminally negligent homicide. 4AD holds D was entitled to charges on lesser-included offenses, i.e. to have the lower court instruct the jury that they could find his conduct was not intentional, but merely reckless (i.e., consistent with second-degree manslaughter) or criminally negligent (i.e., consistent with criminally negligent homicide).

4AD concludes, however, that the error was harmless. Where D faces both second-degree murder and first-degree manslaughter, and the jury convicts of the highest charge of second-degree murder, the denial of D’s request for a lesser-included instruction on unindicted “remote offenses” (i.e. such as second-degree manslaughter or criminally negligent homicide) is per se harmless.

4AD notes that the lower court also failed to instruct the jury to consider the charges in descending order of culpability, such that the guilty verdict for second-degree murder should have meant that the jury did not deliberate on the lesser-included second count of first-degree manslaughter. 4AD explains that had the jury acquitted of the highest charge (second-degree murder) and convicted only on the lower, “intermediate” charge (first-degree manslaughter), then the trial court’s failure to provide the additional charges for “remote” lesser-included offenses (i.e., for second degree manslaughter and criminally negligent homicide) “would have constituted reversible error.” 4AD nevertheless reverses and dismisses the first-degree manslaughter conviction because the conviction on the higher charge constitutes a “dismissal of every lesser count.”

In their dissent, Justices Lindley and Curran conclude the error was not harmless, as evidenced by the jury convicting on both the top charge and the lesser-included offense charged in the indictment. The dissent points out that a guilty verdict on a lesser-included offense (i.e., first-degree manslaughter) constitutes an “acquittal upon every greater count submitted” (i.e., second-degree murder). The dissent concludes that the failure to charge the jury with the uncharged lesser-included offense cannot be harmless because D submitted evidence supporting the lesser culpable mental state.

People v Perkins (KA 16-01320) – 4AD vacates D’s sentences on his guilty plea convictions for DWI and second-degree aggravated unlicensed operation of a vehicle (AUO). The lower court imposed the sentence on the AUO after D left the courtroom, and, therefore, that sentence must be reversed for resentencing in D’s presence. As for the sentence on his DWI conviction, the court imposed an illegal sentence: the 5-year period for D to use an ignition interlock device exceeded the maximum term of 3 years for such a conditional discharge (see PL § 65.05 [3] [a]).

People v Searight (KA 15-02168) – 4AD reverses D’s guilty plea convictions for two counts of second-degree criminal possession of a controlled substance and dismisses the indictment. During the suppression hearing, officers testified that they pulled over D for failing to properly signal and operating a vehicle without a license. They learned that D had an outstanding warrant for felony drug charges via a NYSPIN bulletin. They contacted the 911 Center for further information, and the 911 Center confirmed that Cortland police had issued the warrant and now requested that the officer hold D in custody. Upon transporting him to the police station, D admitted he had 2 baggies of cocaine on him and surrendered them to the officers. D moved to suppress both his statements and the cocaine, which the lower court denied. 4AD reverses because where D challenges the information in the bulletin, officers may no longer rely on the fellow-officer rule. The People then have the burden to demonstrate that the agency imparting the information (i.e., the Cortland Police Department) possessed the requisite probable cause to arrest D. While this is typically done by producing the underlying warrant, the People did not produce the warrant in this case. Therefore, the only thing supporting probable cause was the unidentified operator at the 911 Center relaying to the arresting officers a “pyramid of hearsay” communicated to her by Cortland Police Department. Without producing the warrant, or other “reliable evidence that the warrant was active and valid,” the People failed to meet their burden, and the indictment, based entirely upon D’s statements and cocaine, must be dismissed.

People v Williams (KA 15-01258) – 4AD reverses D’s conviction for third and seventh-degree criminal possession of a controlled substance (CPCS charges). 4AD reverses on sufficiency grounds because the People failed to prove constructive possession where D was merely present in a home when drugs were discovered. The People could not rely upon officer testimony that a police database listed the home as her residence, particularly where that officer could not vouch for the accuracy of the information contained in that database. The officer’s further testimony that he surveilled her entering that location “hundreds” of times, and that typical women’s clothing was found in the home, were also insufficient to establish her dominion or control over the drugs because the clothing recovered from the home included a single pair of women’s shoes. D’s “mere presence” in an area where drugs were discovered was not enough to establish constructive possession.

People v Wilson (KA 15-00248) – 4AD reverses county court’s summary denial of D’s CPL 440 motion. County court erred in not holding a hearing on D’s ineffective assistance of counsel claims because D may bring such a claim, involving “both record-based and non-record-based issues,” irrespective of whether he could have raised them in his earlier direct appeal. D alleged that trial counsel failed to adequately cross-examine witnesses and address medical records tending to disprove allegations of penetration in this predatory sexual assault and rape case. D further alleged trial counsel failed to move for relief when a DNA sample was forcibly taken from D, which could have resulted in suppression of the DNA sample. 4AD remits the matter for a hearing.


Family Law Case Summaries:

Matter of Kriegar v McCarthy (CAF 17-01729) – In this article 6 proceeding, 4AD reverses the lower court’s order, which summarily dismissed the mother’s modification petition. The petition contained sufficient facts that alleged a change in circumstances warranting a modification of the existing custody order. Specifically, the mother alleged that the father has repeatedly and consistently neglected to exercise his right to full visitation and had endangered the children by exposing them to individuals who engaged in drug use. Accordingly, 4AD reinstated the petition and remitted the matter to Family Court for a hearing.

In the Matter of Shawn S. (CAF 17-01612) – In this Article 10 permanency hearing, 4AD holds that Family Court does not have the authority to compel a child to attend a permanency hearing where the child, in consultation with his or attorney, waives his or her right to participate in the permanency hearing. 4AD also rules that the mootness doctrine did not prevent the Court from reaching a decision here, despite the permanency hearing having already concluded, because the matter is capable of repetition yet evading review. 4AD quotes the applicable language from Section 1090 of the Family Court Act permitting 14-year-old children to “participate in person in all or any portion” of the permanency hearing they so choose.

Wheeler v Wheeler (CAF 17-01425) – In this Article 4 proceeding, Family Court sustained the father’s objections to a violation petition alleging that he failed to pay for his daughter’s college expenses. The parents’ prior separation agreement was incorporated, but not merged, into their divorce. The agreement provided that the parents would consult each other, and the child, about where the child would go to college, and that the father would pay a portion of the child’s college education. The father argued, and Family Court agreed, that because he was not consulted about where the child would attend college, he need not pay for the child’s college expenses. 4AD rules that the more specific commitment to pay tuition controls over the more general agreement to consult one another regarding where the child attends college. The agreement did not require the parents and child to agree to a choice of college, nor did it condition the parent’s obligation to pay for college upon a consultation regarding the selection of the college. Therefore, 4AD modifies Family Court’s order to deny the father’s objection, holding that the father must pay his portion of college tuition, and remits the matter for calculation of the college expenses.

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