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Case Summaries – Fourth Department Decisions Released on September 29, 2017

Published on October 6, 2017 2:47 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

People v Boyd (KA 12-00373) – 4AD affirms D’s convictions for attempted criminal possession of a weapon in the second and third degrees. D was a front-seat passenger in a car police pulled over. Based on D’s nervous and anxious behavior, police asked him to exit the car. When he did so, police saw a gun sticking out from under the front passenger seat. D then attempted to pull away as police handcuffed him. 4AD finds that the evidence is legally sufficient to establish that D possessed the gun, and that he believed it was operable. 4AD explains that a defendant can be found guilty of attempted CPW even when a gun is not operable, where there is evidence the defendant believed it was operable. Here, there was sufficient evidence that D believed and intended the gun to be operable—i.e., the gun was loaded, D was nervous and anxious, and D attempted to flee

People v Davis (KA 14-02227) – 4AD reserves decision and remits the matter to the trial court. The lower court erred in concluding that D failed to establish a prima facie case of discrimination when the prosecutor exercised a peremptory challenge against the only African-American prospective juror on the panel. 4AD notes that D is also African-American, that neither defense counsel nor the prosecutor asked the prospective juror at issue any questions, and the court’s general questions did not distinguish the prospective juror from any of the other prospective jurors. Under these circumstances, the totality of the relevant facts raised an inference of discrimination. The burden then shifted to the prosecutor to articulate a nondiscriminatory reason for challenging the prospective juror, and the lower court should have ruled whether that reason was pretextual.

People v Lewis (KA 15-00205) – 4AD reverses D’s conviction for murder, among other charges, because the lower court erred in denying his motion to suppress statements he made to police. When a detective asked D whether he would come to the police station to answer questions, D said that he would not go “without a family member or a lawyer present”. D then went to the station, accompanied by a man whom he considered to be like a father to him. At the station, D waived his Miranda rights and provided a written statement. 4AD finds that D’s initial statement constituted an invocation of the right to counsel. 4AD relies on People v Stroh (48 NY2d 1000), in which the Court of Appeals determined that the defendant invoked his right to counsel when he said that “he ‘would like to have either an attorney or a priest to talk to, to have present’ ”.

People v Saraceni, Jr. (KA 15-00321) – 4AD modifies D’s sentence by striking as a condition of probation the requirement that D consent to the waiver of his Fourth Amendment right protecting him from unreasonable searches and seizures of his person, home, and personal property and to submit to chemical tests of his breath, blood or urine, and by striking special condition nine (abstain from the use or possession of alcoholic beverages and submit to appropriate alcohol testing) as a condition of probation. D pled guilty to first-degree sexual abuse. Although D acknowledged that his criminal behavior was related to drug/alcohol abuse, there was no evidence that D was under the influence of alcohol or drugs when he committed the offense or that he had a history of drug or alcohol abuse. 4AD finds that the waiver and consent to search, as well as special condition nine, are not enforceable because they are not related to the probationary goal of rehabilitation.

People v Vadell (KA 14-00409) – 4AD finds that the lower court failed to fulfill its obligation to advise D at the time of his plea that the sentence imposed upon his conviction would include a period of postrelease supervision. 4AD vacates D’s plea and remits the matter for further proceedings on the indictment.

Family Law Case Summaries:

Matter of Brockel v Martin (CAF 16-01309) – In this custody/visitation matter, 4AD reverses the lower court’s order, which granted sole custody of the subject child to the father. The father sought to modify a prior custody order after the mother was investigated by DSS and four neglect petitions were filed against her and her paramour. The lower court held a joint hearing on the neglect petitions and the father’s modification petition. 4AD finds that there was a sufficient change in circumstances based on the allegations of neglect to warrant an inquiry into the child’s best interests. Nevertheless, 4AD reverses because the lower court failed to “set forth the essential facts of its best interests determination, either orally in writing”, and the record on appeal was insufficient to allow 4AD to make its own independent determination as to the child’s best interests. Specifically, the record was silent as to the impact of the mother’s actions on the child.

Matter of Jackson v Euson (CAF 16-00499) – In this custody/visitation matter, 4AD affirms the lower court’s order granting custody of the subject children to the paternal grandmother. When the grandmother filed her custody petition, a neglect petition was pending against the mother. The lower court first sustained the neglect petition based on excessive corporal punishment. Following a dispositional hearing and a custody hearing, the court awarded the grandmother custody of the two subject children. 4AD concludes that the extraordinary circumstances required to award custody to a non-parent were established by (1) the court’s neglect determination, (2) evidence of the mother’s lack of insight into her mental health issues, (3) her use of inappropriate disciplinary methods, and (4) her failure to comply with a prior order requiring her to obtain a mental health evaluation and enroll in parenting classes. The record also supported the court’s determination that the award of custody to the grandmother was in the child’s best interests.

People v Kameron V. (CAF 16-00105) – In this article 10 matter, 4AD reverses the lower court’s order, which found respondent neglected the subject child and dismisses the petition against him. 4AD concludes that the evidence does not support the lower court’s determination that respondent is a person legally responsible for the child and that the court therefore erred in determining that he neglected the child. Although respondent and the mother of the child had been living together for some unspecified period of time, there was nothing to show that respondent acted as the “functional equivalent of a parent in a familial or household setting.” 4AD further notes that there was no testimony that respondent provided childcare or financial support or performed any household duties.