Case Summaries – Fourth Department Decisions Released on March 16, 2018

Published on March 27, 2018 8:25 am by Sara Goldfarb in Appeals Blog

Criminal Case Summaries:

People v Carrigan (KA 15-00130) – 4AD modifies the judgment by reversing those counts convicting him of use of a child in a sexual performance because the indictment failed to provide D with sufficient notice of the time periods during which he allegedly committed those acts. The lower court should have granted D’s trial order of dismissal motion made on that ground.

People v Cooper (KA 13-00204) – 4AD reverses D’s conviction and grants him a new trial because D was excluded from Supreme Court’s Sandoval conference. 4AD explains that because the court’s Sandoval ruling was not wholly favorable to D, his presence at the hearing would not have been superfluous.

People v Freeman (KA 15-00251) – 4AD modifies the judgment by reversing the counts charging D with second-degree attempted murder, first-degree assault, and first-degree criminal use of a firearm, because the lower court erred in not charging the jury on the defense of justification. D was arrested in spring 2013 for sexually abusing a 12-year-old girl. Shortly thereafter, D was shot in broad daylight outside his home. Several months later, D came home and observed a small group of people outside his apartment assisting his girlfriend in packing a moving truck with her belongings. D testified at trial that one of the complainants, who was among the group, approached D in an aggressive manner while holding something in his hand. Fearing that he was about to be shot again, D pulled out the gun he carried for protection and shot complainant. Viewing the evidence in the light most favorable to D, 4AD concludes that “it would not have been irrational for the jury to credit . . . D’s account of the incident” and that a trial court is required to give the justification charge even if D’s version of events is “extraordinarily unlikely.” 4AD rejects the People’s contention that D was not entitled to the justification charge because he had a duty to retreat. 4AD explains that whether D could have retreated or was under a duty to do so is a question of fact for the jury. D is granted a new trial on the reversed counts.

People v Hardy (KA 15-00890) – 4AD reverses D’s conviction because the lower court erred in not making “at least some minimal inquiry” into D’s request to substitute his assigned attorney in light of defense counsel’s statement that D had filed a grievance against him. 4AD concludes that the court violated D’s right to counsel and that D is entitled to a new trial, prior to which he should be given the opportunity to retain counsel or be assigned new counsel if appropriate.

People v Henry (KA 14-00530) – 4AD, in a 3 to 2 decision, modifies the judgment by reducing the conviction of first-degree murder to second-degree murder and vacating the sentence imposed on that count. 4AD agrees with D that the evidence is legally insufficient to support his first-degree murder conviction because there is no evidence from which the jury could have concluded that he fired the shots that killed the decedent. D was convicted under PL § 125.27 (1) (a) (vii), which requires the prosecutor to establish beyond a reasonable doubt that D intentionally caused the decedent’s death during the commission of certain crimes. A conviction cannot be based on accomplice liability unless D’s criminal liability is based upon the command theory of liability. Here, the jury was expressly instructed that to convict D it would have to determine that he “pulled the trigger himself.” 4AD notes that D’s girlfriend was also inside the decedent’s house at the time the shooting occurred, but the People did not present any evidence with respect to who ultimately “pulled the trigger” and thus the People’s evidence is legally insufficient to establish that D was the shooter.

Justices Whalen and Winslow dissent concluding that there is sufficient circumstantial evidence from which the jury could have rationally excluded alternative explanations and determined that D was the person who shot the decedent. The dissent notes D’s inculpatory statements and his continuing possession and use of the rifle in the days after the murder and argues that this evidence provided probative circumstantial evidence of his identity as the shooter.

People v Phillip H. Owens (KA 13-01704) – 4AD reverses D’s conviction and orders a new trial where the trial court abused its discretion in denying D’s motion to re-open the proof. D was charged with first-degree attempted assault and several counts of criminal possession of a weapon (“CPW”) stemming from his alleged shooting at the car of his estranged spouse. The spouse testified that she was driving a green Lexus with her child inside at the time of the shooting.  Convenience store video captured the shooting from many angles. During discovery, defense counsel could play only a portion of that video. At trial, the video was admitted in evidence, but not played until summations. Once played in full, the video contradicted the estranged spouse’s testimony in several important respects, including her driving a blue-gray Nissan and leaving the convenience store less than 2 minutes prior to the shooting. 4AD concluded this made it very unlikely she switched cars and returned to the scene in time for the shooting. Defense counsel moved to re-open the proof and conduct further cross-examination of the estranged spouse, which the lower court denied. 4AD reverses and rules that the lower court abused its discretion, abrogated D’s constitutional right to present a complete defense, and his right to place “before a jury evidence that might influence the determination of guilt.” Additionally, 4AD concludes that the failure of counsel to review the entire video prior to trial constituted ineffective assistance of counsel.

People v Ruiz (KA 15-02119) – 4AD reverses D’s conviction and orders a new trial on several counts of the indictment relating to D’s alleged sexual abuse, rape, and criminal sexual acts with a 17-year-old relative. 4AD finds that the lower court properly denied D’s request to exclude the People’s expert witness on the basis of a lack of timely notice concerning the expert’s testimony. 4AD nevertheless reverses because the expert’s testimony “was improperly admitted, inasmuch as it was introduced primarily to prove that the charged crimes took place”. The expert went beyond testifying generally about child sexual abuse accommodation syndrome, which is permitted, and strayed into discussing the modus operandi of the perpetrator. Rather than focus on the behavior of the victim, the expert described a perpetrator’s conduct, “[i]n sum, that part of the testimony of the expert describing the conduct of a typical perpetrator was not directed at explaining the victim’s behavior. Rather, it was presented ‘for the purpose of proving that the [victim] was sexually abused’ ”.

People v Sweat (KA 16-01335) – 4AD previously held this case pending remittal to the trial court for a determination (1) whether D had standing to challenge an allegedly unlawful search of a home in which a gun was found, and (2) if D had standing, whether anyone in the home had consented to the search (People v Sweat, 148 AD3d 1641 [4th Dept 2017]). The prior 4AD decision resulted from the People’s appeal of the trial court’s suppression of the gun and certain statements of D. Upon remittal, the trial court determined D lacked standing. 4AD now reverses, concluding that D was more than a casual visitor and had a reasonable expectation of privacy in the home. D resided in his brother and sister-in-law’s home until 2 months prior to the search, but maintained it as his permanent mailing address, kept clothes there, was entrusted to watch his nieces and nephews, and looked after the home when they were all away. He slept overnight in the home 5-12 nights per month. D thus established standing and 4AD remits again for the lower court to address the second question: whether anyone had given police consent to search the home.

Family Law Case Summaries:

In the Matter of Ruth H. (CAF 17-01146) – In this Article 10 matter, 4AD modifies the order from Family Court by vacating that part of the order determining that DSS failed to make reasonable efforts to prevent or eliminate the need for removal of the children from respondent parents’ home and substituting a determination that DSS made such reasonable efforts and vacating that part of the order requiring that DSS arrange for a foster home for respondents’ cat. 4AD concludes that the court’s determination lacks a sound and substantial basis because the record establishes that the parents received considerable support and assistance during the months prior to the filing of the neglect petition. The parents received public assistance for their rent, medical care and treatment of the father’s mental health issues, as well as assistance buying groceries through the food stamp and WIC programs. In addition, DSS provided the parents with a preventive caseworker who met with them up to four times per month. Finally, 4AD concludes that the court exceeded its authority in directing DSS to find foster care for the family cat because Family Court does not have jurisdiction over matters concerning personal property.

Sorrentino v Keating (CAF 17-01310) – In this Article 6 proceeding concerning an order awarding joint legal custody and shared physical custody to both parents, 4AD affirms the joint legal custody award, but modifies the order to award the mother primary physical custody. 4AD finds that Family Court’s determination that shared physical custody “without designation of a primary physical residential parent” lacks a sound and substantial basis in the record. The father had to travel a great deal for work, while the mother had no work-related travel obligations. 4AD found both to be fit and loving parents, but that the mother was better suited to serve as the primary residential parent because she has acted as the primary caregiver for the child since birth, managed the child’s day-to-day care, and took the child to all medical appointments. Family Court had ordered the mother to relocate to within 35 minutes of the father’s residence (in part because he worked as a college professor), but 4AD reverses and remits to Family Court to set a visitation schedule.

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