Case Summaries – Fourth Department Decisions Released on March 24, 2017
Criminal Case Summaries:
- People v Brown (KA 12-01592) – In this drug case, 4AD finds that the lower court erred in permitting the prosecution to cross-examine D regarding prior drug convictions and their underlying facts. 4AD notes that in drug cases, prior drug convictions present a special risk of impermissible prejudice because of the widely accepted belief that persons convicted of drug crimes are likely to be habitual offenders. Here, the lower court only considered the temporal proximity of the prior crimes and D’s willingness to place his interests above those of society, and failed to consider the special risks associated with prior drug convictions. 4AD thus concludes that the lower court abused its discretion, but finds that the error is harmless. 4AD also reduces the $10,000 fine to $5,000, because the lower court failed to consider the factors listed in Penal Law § 80.00, and also impermissibly imposed fines for multiple charges arising out of a single act.
- People v Brown (KA 15-01402) – In this SORA case, 4AD finds that the lower court erred by assessing points for criminal history based on D’s juvenile delinquency adjudication. 4AD first notes that the risk assessment guidelines issued by the Board of Sex Examiners permit the assessment of points based on a juvenile delinquency adjudication. Nonetheless, the applicable provisions of the Family Court Act provide that neither an adjudication nor any statements made by a person during delinquency proceedings, are admissible as evidence in any other court, nor does a delinquency adjudication constitute a conviction. 4AD finds that given the conflict between the guidelines and the Family Court Act, the Board “exceeded its authority by adopting that portion of the Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender’s criminal history.” To the extent 4AD’s decision in People v Catchings (56 AD3d 1181) is inconsistent, it should not be followed. 4AD thus vacates the points that were assessed based on the juvenile delinquency adjudication, and remands the case for further proceedings.
- People v Graham (KA 15-01692) – 4AD reverses D’s conviction for gun possession, among other things, and dismisses the indictment because the lower court erred in refusing to instruct the jury regarding the defense of temporary innocent possession, and the prosecutor likewise failed to instruct the grand jury regarding the defense. The evidence showed that D briefly struggled with a man who had threatened him. A gun fell to the ground during the struggle, and D picked it up and handed it to his wife. Police found the gun in a woman’s purse in a bedroom closet later that day, when they responded to the wife’s house regarding a domestic violence call. 4AD finds that the testimony was not utterly at odds with a claim of innocent possession, and the defense thus should have been charged. 4AD notes that although D did not move to dismiss the indictment based on the prosecutor’s failure to charge the defense to the grand jury, review of the issue in the interest of justice is warranted.
- People v McFarland (KA 14-01899) – In this appeal from an order denying D’s CPL 440.10 motion, 4AD vacates D’s conviction based on newly discovered evidence. 4AD finds that a statement by a third party that he, and not defendant, shot and killed the victim, qualifies as a statement against penal interest. The third party invoked his Fifth Amendment rights, and was thus unavailable. D also offered sufficient evidence to establish the “possibility of trustworthiness” of the third-party’s statement. Witnesses testified to seeing the third party arguing with the victim, and the third party admitted to an investigator that he was present and engaged in a dispute with the victim.
- People v McGuire (KA 11-01538) – 4AD reverses D’s conviction, finding that the lower court should have granted his motion to sever his trial from that of the two codefendants. Police found a gun in a car in which D and the two codefendants were occupants. At trial, the two codefendants testified that D possessed the gun, and one testified that D offered him $10,000 to take responsibility for the gun. 4AD concludes that the core of the defenses were in irreconcilable conflict, and that the codefendants’ attorneys became second and third prosecutors against D. There was a significant danger that the conflict alone would lead the jury to infer D’s guilt, and severance was required.
- People v Morrison (KA 09-00310) – 4AD reverses D’s conviction because the lower court did not comply with CPL 310.30 and People v O’Rama when it failed to give defense counsel notice of a substantive jury note. The relevant note stated “[w]e have arrived on decision on 2 and 3, but we have a lot of work to do on #1. I don[‘]t see it being quick. Not sure what to do. We ars [sic] starting to make way.” In response, the trial court provided an Allen-type charge. 4AD explains that the note may have been ambiguous, in that “not sure what to do” may have simply been a question as to whether to continue deliberations considering the late hour. But the note can also be interpreted as a substantive inquiry—the lower court deemed it substantive by providing an Allen charge—and the ambiguity must be resolved in D’s favor.
- Justice Peradotto dissents, and argues that the note is merely ministerial, and the requirements of CPL 310.30 and O’Rama do not apply. The dissent explains that, viewed in context, the note was unambiguously concerned only with the deliberative process. “The jury was asking whether to continue deliberating or break for the evening given that it had not yet come to a decision on the top count and anticipated needing additional time to reach a verdict even though it was starting to make progress.”
- People v Pett (KA 15-00778) – 4AD reverses the lower court’s order, which denied D’s motion pursuant to CPL 440.10. Before D pled guilty, counsel moved for a CPL article 730 examination, and D was examined by two psychiatrists, who provided conflicting findings on D’s competency to stand trial. Thereafter, the trial judge accepted a guilty plea to a reduced charge, and defense counsel withdrew the request for a competency hearing. 4AD concludes that the failure to hold a competency hearing was error. Under the CPL, such a hearing is mandatory when the psychiatric examiners do not reach a unanimous conclusion. It was thus error to accept a guilty plea before holding a hearing. 4AD remits the matter for a hearing to determine whether it is possible to reconstruct D’s mental capacity at the time of the plea.
- People v Robinson (KA 13-01770) – 4AD vacates D’s sentence, finding that he was improperly sentenced as a second felony offender based on his 2005 federal conspiracy conviction. The conspiracy conviction is not equivalent to any New York felony. Unlike the New York statute, the federal conspiracy statute does not require an overt act by one of the conspirators in furtherance of the conspiracy. Because the New York statute requires proof of an element that the federal statute does not, the federal conviction does not qualify as a predicate felony conviction.
- People v Vickers (KA 14-01695) – In this appeal from two judgments of conviction, 4AD finds that the lower court erred in amending several counts in the two indictments against D. The court permitted the People to amend counts of first-degree course of sexual conduct against a child and predatory sexual assault against a child. The counts charging those crimes were amended and replaced with counts charging first-degree sodomy and first-degree criminal sexual act. 4AD first notes that D’s consent to the amendment does not preclude appellate review, because a defendant has a fundamental, nonwaivable right to be tried only on the crimes charged in an indictment. 4AD also explains that amendments that change the theory of the prosecution as reflected in the evidence before the grand jury are impermissible. Here, the charges in the indictment were continuing crimes that did not criminalize a specific act, and thus did not require jury unanimity with respect to a specific act. The amendment to crimes charging a specific act thus resulted in an impermissible substantive change in the indictments.
Family Law Case Summaries:
- Matter of Harrison v Harrison (CAF 16-00919) – In this child support matter, 4AD reverses the lower court’s order, which denied with prejudice the mother’s modification petition. The mother sought to modify her support obligation on the ground that the father’s income had increased by more than 15%. The lower court dismissed the petition on the ground that the mother did not show that there was a substantial change in circumstances, in addition to the father’s increase in income. 4AD finds that the lower court applied the incorrect standard in dismissing the petition. Since the Family Court Act was amended in 2010, a change in either party’s income of 15% or more is sufficient, in and of itself, to allow a court to modify a child support order. Under such circumstances, a party need not allege or show a substantial change in circumstances.
- Matter of James P. (CAF 15-02170) – In this termination of parental rights matter, 4AD rejects the mother’s argument that the lower court abused its discretion in limiting evidence regarding whether the foster parents were qualified to adopt the child. 4AD explains that the lower court permitted some questioning, and it was otherwise established by clear and convincing evidence that it was in the child’s best interests to terminate the mother’s parental rights. 4AD notes that the decision whether to terminate a parent’s rights does not hinge upon a comparison between the benefits offered by the foster and biological parents.
- Matter of Rohr v Young (CAF 16-00454) – In this custody/visitation matter, 4AD affirms the lower court’s order, which modified a prior custody order to give the grandmother visitation with the child one Saturday per month for 2 hours. The prior order provided for “one-hour biweekly supervised therapeutic visitation”. 4AD finds that there was a sufficient change in circumstances to warrant consideration of the child’s best interests. The 15-year-old child testified that she did not wish to visit the grandmother, and the father and child testified that the child had difficulty completing her homework on days that both extracurricular activities and visitation were scheduled.