Case Summaries – Fourth Department Decisions Released on October 6, 2017

Published on October 13, 2017 12:53 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

People v Ayala (KA 15-02036) – 4AD reverses D’s conviction because the lower court erred in refusing to give the jury a circumstantial evidence charge. Police executed a search warrant in an apartment leased to D’s girlfriend. D was present during the search. Police found drugs and various paraphernalia, most of which was out of plain view—i.e., in jacket pockets, inside dresser drawers, and in kitchen cabinets. A scale and sandwich bags were found on top of a dresser drawer. Police also found mail addressed to D. One piece of mail had been mailed to D at the apartment, but another more recent piece was mailed to a different address. Both D and his girlfriend were charged, but D’s girlfriend pleaded guilty, and testified at D’s trial that the drugs belonged to her. 4AD concludes that a circumstantial evidence charge was required. Although there was direct evidence—D’s presence in the apartment—that D exercised dominion and control over the apartment, there was only circumstantial evidence that he exercised dominion and control over the drugs and paraphernalia.

People v Bradley (KA 13-02024) – 4AD reverses D’s convictions for criminally negligent homicide and third-degree assault, finding that the charges were not supported by legally sufficient evidence because the trial evidence varied from the limited theories alleged in the indictment and bill of particulars. The charges arose when D suffered a seizure while driving his car, drove into a park, and struck two children, killing one and injury the other. The bill of particulars alleged that D acted recklessly because he ingested marijuana and failed to take his medication. At trial, the prosecutor relied on those two factors, plus D’s lack of sleep, failure to inform his doctor about his syncope events, and failure to control his consumption of alcohol. 4AD explains that because the People limited their theory of recklessness in the bill of particulars, the lower court was required to hold the People to that narrow theory. Here, there was no evidence that marijuana use may cause seizures or caused D’s specific seizure, or that D failed to take any prescribed anti-seizure medication.

People v Cyganik (KA 14-00585) – 4AD affirms D’s convictions, concluding that D failed to preserve his contention that his plea was not knowing, voluntary and intelligent because the court did not inform him of the amount of the monetary fine, or that his indeterminate sentence would be followed by a three-year conditional discharge during which he would have to install an ignition interlock device (IID) in his car. At the time of the plea, the lower court informed D that his case would be transferred to treatment court, and that if he failed treatment court, he would receive an indeterminate sentence, a monetary fine, and would be required to install an IID. D later signed a treatment court contract, which indicated that the IID would have to be installed during a three-year conditional discharge. D eventually failed treatment court. 4AD finds that the treatment court contract placed D on notice of the three-year conditional discharge, and D thus had an opportunity to object that his plea was invalid because the lower court did not specify that consequence. D likewise knew that a fine would be part of his sentence, and could have challenged the plea on the ground that the court did not specify the amount of the fine.

People v Purdy (KA 17-00531) – 4AD modifies, in the interest of justice, D’s sentence for second-degree burglary and second-degree grand larceny so that the sentences imposed on counts one and two shall run concurrently to each other, and concurrently to the resentence previously imposed on count three of the indictment for second-degree criminal possession of stolen property. The original aggregate sentence was harsh and severe.

Family Law Case Summaries:

Matter of Kaylee D. (CAF ) – In this article 10 matter, 4AD affirms the lower court’s orders, which found that the mother neglected the two subject children. 4AD initially notes that neglect can be established by proof of a single incident where a parent’s judgment was strongly impaired and the child was exposed to a risk of substantial harm. Here, police responded to a call at about 5:22 a.m. regarding a woman yelling at her crying children in front of a house. When police arrived they observed the children—a 5 and 11 year old—dressed in light coats, even though it was 45 degrees and raining. The mother told police they were out for a walk and that it was a “beautiful, stormy morning”. Police believed the mother was under the influence of a narcotic, and police found that the mother possessed a box of suboxone, which was missing 22 doses, even though the mother was issued a 2-a-day prescription just 5 days earlier. The children told police their mother had woken them up early that morning, told them they had to go because of an emergency, and instructed them to carry a cardboard box filled with miscellaneous items. The mother was eventually arrested for endangering the welfare of a child and appearing in public under the influence of a narcotic.

Matter of McDuffie v Reddick (CAF 16-00498) – In this custody/visitation matter, 4AD reverses the lower court’s order grating the parties joint custody, with primary physical custody to the mother. The lower court referred the father’s custody petition to a Court Attorney Referee (CAR), who conducted a hearing, issued an oral report, and then issued supplemental written findings. The court, on its own initiative, confirmed the CAR’s report the same day it issued its written findings. 4AD concludes that the lower court violated CPLR 4403, which applies in Family Court, because it confirmed the CAR’s report before the “expiration of the 15-day period during which the parties were permitted to move to confirm or reject the report in whole or in part”. 4AD remits the case to give the parties and the Attorney for the Child the opportunity to file any appropriate motions pursuant to CPLR 4403.

Whitney v Whitney (CAF 15-01466) – In this custody matter, 4AD reverses the lower court’s order, which dismissed the father’s modification petition without a hearing. The father made a sufficient evidentiary showing of a change in circumstances to require a hearing based upon the undisputed fact that, after entry of the prior custody order, one of the children was left unattended at the mother’s house and accidently set a fire that resulted in $125,000 in property damage. 4AD reinstates the amended petition and remits the matter to Family Court for a hearing.