Case Summaries – Fourth Department Decisions Released on November 9, 2017

Published on November 20, 2017 3:03 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

People v Barber (KA 15-00947) – 4AD modifies D’s judgment of conviction, reversing the second-degree assault and first-degree unlawful imprisonment counts. First, the lower court’s instructions allowed the jury to convict D of assault based on a theory that was not reflected in the indictment. The indictment charged that D caused an injury by striking the victim, but the court’s instructions allowed the jury convict D based on proof that he either struck the victim, or that she sustained an injury when she threw herself from D’s car. 4AD rejects the prosecutor’s argument that this issue requires preservation. Second, the lower court erred by denying D’s request to charge second-degree unlawful imprisonment as a lesser included offense of first-degree unlawful imprisonment. There was a reasonable view of the evidence that supported the finding that D committed only the lesser offense, because the jury could have rejected that part of the complainant’s testimony where she accused D of threatening to kill her after he restrained her. 4AD also admonishes the prosecutor for making a comment on summation that grossly exaggerated blood evidence.

People v Davis (KA 15-01223) – 4AD reverses D’s conviction for welfare fraud in the fourth degree, finding it was not supported by legally sufficient evidence. The charges arose when D, who was living out of state, applied for and received Section 8 housing benefits in New York, allegedly for the purpose of transferring the benefits to New Jersey. 4AD finds that the welfare fraud statute does not apply to public assistance benefits that are not administered by the department of social services. Here, the Section 8 funds were administered by the Salamanca Housing Agency. 4AD notes that both D and the prosecutor put forth plausible interpretations of the welfare fraud statute to support their respective positions, but that the rule of lenity required the adoption of the interpretation more favorable to D.

People v Drake (KA 17-00063) – 4AD vacates D’s sentence and remits the matter for further proceedings. D pled guilty to attempted criminal possession of a controlled substance in the fourth degree in exchange for a one-year definite sentence that would run concurrently with a sentence D was already serving. The lower court promised that the time D served on his prior sentence would be credited against the sentence on the instant offense. When D was committed to a correctional facility, the facility determined it was prohibited from giving D credit on his current sentence for the time he had served on his prior conviction. 4AD finds that the lower court erred by making a promise that was contrary to Penal Law § 70.30 (3), which provides that a jail-time credit for a definite sentence cannot include “any time that is credited against the term . . . of any previously imposed sentence . . . to which the person is subject.” 4AD remits the matter for the lower court to either impose a sentence that comports with D’s legitimate expectations, or give D an opportunity to withdraw his plea.

People v Priest (KA 16-00807) – 4AD reverses D’s conviction, following a guilty plea, of first-degree course of sexual conduct against a child and third-degree rape, because the waiver of indictment and superior court information (SCI) were invalid. D was charged with a class A felony and thus could not waive indictment under CPL 195.10 (1) (b). 4AD previously reversed D’s conviction for the same reason. D again pled guilty to an SCI, but the plea was again invalid because the felony complaint charging the A felony was not dismissed until after D waived indictment and pled guilty to the SCI.

People v Rafferty (KA 17-00218) – 4AD reverses an order by the County Court granting that part of D’s omnibus motion seeking to dismiss counts one through three of the indictment, each charging D with offering a false instrument for filing in the first degree. 4AD reinstates counts one through three because the evidence was legally sufficient to establish that D submitted false reports to a public servant. Specifically, D submitted reports to Casella Waste System, Inc., which was acting as a public servant in operating a landfill facility on behalf of Ontario County. In accepting the reports from D for purposes of complying with the County’s permit issued by the State, Casella was “not acting as a private concern” but rather was exercising a governmental function as an agent of the County.

Family Law Case Summaries:

Matter of Buchanan v Kocke (CAF 17-00758) – In this custody/visitation matter, 4AD modifies the lower court’s order by vacating the paragraph that granted the father a downward modification of child support. The parties had agreed to a different child support obligation in a separate proceeding, and the father did not raise any issues pertaining to child support in either of the two petitions he filed.

Matter of Gartner v Reed (CAF 16-01509) – In this custody/visitation matter, 4AD affirms the lower court’s order granting the father sole legal and physical custody of the child. When the child was about a year old, the father moved out of state and was absent from the child’s life for about 10 years. A neglect petition was brought against the mother in 2015 based on her drug use. The father sought custody in 2016. 4AD first notes that the factors set forth in Matter of Tropea v Tropea (87 NY2d 727) do not apply here, because this case does not involve a custodial parent seeking to relocate. The relocation of the child to New Jersey, however, was an issue for the lower court to consider in determining the child’s best interests. Although the father had been absent from the child’s life, he demonstrated his desire to remedy that absence and wanted to care for the child. The lower court properly concluded that the father’s parental fitness, the quality of his home environment, and the parental guidance he could provide were superior to that of the mother. 4AD also notes that the wishes of the 11-year-old child were not entitled to great weight, because it appeared they were partly due to the lack of discipline in the mother’s and grandmother’s homes.

Matter of Moreno v Elliott (CAF 16-00341) – In this custody/visitation matter, 4AD affirms the lower court’s order holding the mother in civil contempt and directing that she stay away from the father until their youngest child’s 18th birthday. The father established by clear and convincing evidence that the mother willfully violated orders that required her to, among other things, permit the father to have visitation and telephone contact with the children, share medical information, and be absent during visitation exchanges. The mother’s violations unjustifiably impaired the father’s rights to communicate and visit with the children, and to participate in decision making about their healthcare. 4AD also concludes that the Family Court was authorized, under Family Court Act § 656, to issue an order of protection as part of its order, because the father served and filed a petition, and the order of protection “set forth reasonable conditions of behavior to be observed for a specific time by [the mother]”.