Case Summaries – Fourth Department Decisions Released on November 17, 2017

Published on November 27, 2017 9:41 am by Nate Riley in Appeals Blog

Criminal

People v. Pace (KA 16-01024) – lower court denied, without a hearing, defendant’s CPL 440.10 motion and the 4AD now reverses.  D stood accused of three felonies and three misdemeanors, all stemming from the same act or criminal transaction, and proceeded to jury trial.  However, the DA, just prior to jury selection, notified the trial court D had already pled guilty in town court to the three misdemeanors. The trial court returned the misdemeanors to town court for sentencing, and proceeded to trial on the felonies.  This occurred without objection from counsel that it implicated the accused’s statutory double jeopardy rights (CPL 40.20).  D made this argument in his CPL 440.10 motion urging ineffective assistance of counsel, but the lower court denied it because he could have raised the issue on direct appeal and failed to do so. The 4AD now holds that in order to demonstrate ineffective assistance of counsel in his subsequent CPL 440.10 motion, D must show that two exceptions permitting separate prosecutions stemming from the same act or transactions, CPL 40.20 (2) (a) & (b), do not apply in this case.  The Court finds, under CPL 40.20 (2) (a), that the charging document from town court was not included in the record on direct appeal, and, therefore, it was impossible for the court to tell whether the “misdemeanor offenses were . . . ‘clearly distinguishable from . . . the [felony offenses].’” The absence of this charging document in the record meant the court could not decide the issue on direct appeal.  The absence of this charging document also meant, for purposes of the subsequent CPL 440.10 motion, that D could not have raised this issue in his direct appeal.  Therefore, D could now raise it in his CPL 440.10, and the trial court must afford him a hearing on the issue.

People v. Smith (KA 14-02107) – guilty plea reversed where court failed to advise D of a direct consequence of his guilty plea and sentencing him as a first felony offender.  The trial court erred by failing to inform defendant that pleading guilty included a sentence “fixed without regard to the outcome of the second violent felony offender hearing” (see People v Catu, 4 NY3d 242, 245 [2005] [requiring plea allocutions to include direct consequences of the plea]).

People v Mastowski (KA 14-00826) — 4AD modifies D’s conviction because counts two and three, charging driving while intoxicated, must be dismissed as lesser inclusory counts of count one, charging first-degree vehicular manslaughter. Accordingly, 4AD reverses D’s conviction for two counts of driving while intoxicated and dismisses counts two and three of the indictment.

Family

Matter of Lydia A.C. v Gregory E.S. (CAF 16-01245) – In this custody/visitation matter, 4AD affirms two orders, one awarding visitation to the mother, and the other dismissing an adoption petition filed by the father and his spouse. 4AD rejects the father’s argument that the mother abandoned the child and that her consent to the adoption was not required. The lower court credited the mother’s testimony that she repeatedly sent messages to the father and his spouse attempting to reestablish a relationship with the child, but that the father ignored the messages or insisted that she consent to the adoption. Because the evidence showed that the father and his spouse attempted to thwart the mother’s efforts to communicate or visit with the child, the father failed to establish by clear and convincing evidence that the mother abandoned the child, and that her consent to adoption was not required.