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Case Summaries – Fourth Department Decisions Released on September 30, 2016

Published on October 1, 2016 4:22 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Ashford (KA 12-00098) – 4AD reverses D’s first-degree robbery conviction, finding that the lower court should have granted his motion to suppress evidence obtained from his person. 4AD concludes that police had reasonable suspicion to apprehend D, who matched the general description of the suspect provided by the victim, and was found in close geographic and temporal proximity to a reported robbery. Police, however, did not have probable cause to search D’s pockets as part of a search incident to an arrest. 4AD further concludes that suppression of a showup identification and D’s statements was not required because that evidence was not “obtained by exploitation” of the illegal arrest.
  • People v Carter (KA 13-01825) – 4AD finds that defense counsel was ineffective for failing to move to suppress evidence on the ground of unlawful police action, and remits the matter for a suppression hearing. This single omission deprived D of meaningful representation. Police reports indicated that the suppression issue was a close one under “[the] complex De Bour jurisprudence”, and it could not be concluded that a motion to suppress would have little or no chance of success.
  • People v Hall (KA 12-01925) – 4AD reverses D’s conviction because the trial court erred in denying D’s request to remove his shackles at trial. The court failed to make findings on the record demonstrating a necessity for the restraints. The constitutional error was not harmless because the evidence of guilt was not overwhelming.
  • People v Hicks (KA 13-00168) – 4AD reverses D’s conviction because D was denied his Sixth Amendment right to confront the witnesses against him. Between D’s first and second trials, the victim recanted her claim that D was the perpetrator. At the second trial, the witness invoked her Fifth Amendment right to remain silent, and the trial court permitted the prosecutor to introduce the victim’s testimony from the first trial. 4AD first concludes that the trial court did not err in refusing to permit D to introduce evidence of the victim’s recantation. The evidence of the inconsistent statement was inadmissible, because the victim could not be cross-examined about whether she made the statement, and thus a foundation could not be laid for admission of the evidence. 4AD finds, however, that when the victim refused to answer questions about the recantation, the trial court should have determined whether the victim was refusing to answer questions so closely related to the crime, such that some or all of her testimony from the first trial should be stricken. The failure to do so violated D’s Sixth Amendment rights, and because the victim’s testimony was central to the prosecution’s case, the error was not harmless.
  • People v McKenzie (KA 12-02309) – 4AD reverses D’s conviction because the trial court denied D his right to counsel when it allowed D to choose a member of the jury. 4AD explains that choosing jurors falls within the category of decisions entrusted to counsel, and defendants do not retain the authority to veto counsel’s exercise of professional judgments. Here, during voir dire, defense counsel stated, “[f]or the record, my client is insisting over my objection to keep juror number 21. So, jurors 20 and 21 will be on the jury.” 4AD concludes that counsel did not acquiesce or accede to D’s decision, and the record makes apparent that the trial court, in seating juror 21, was guided solely by D’s choice. This was error because the decision was counsel’s, not D’s, to make.
  • Justices Smith and Troutman dissent, and conclude that defense counsel merely acceded to D’s request to have juror number 21 on the jury. The dissent agrees that a defendant does not have the right to veto counsel’s decision whether to select a prospective juror. But, the record does not establish that D vetoed counsel’s choice. Instead, the record is equally consistent with the inference that counsel discussed the decision with D, and then acceded to D’s request.

Family Law Case Summaries:

  • Matter of Hunter K. (CAF 15-00037) – In this article 10 matter, 4AD affirms the lower court’s order, which found that the mother neglected her four children. 4AD first notes that, under Family Court Act § 1046 (a) (iii), there is a presumption of neglect if a parent, who has children entrusted to her care, persistently misuses drugs or alcohol to the point that her judgment is substantially impaired. Here, the mother admitted to a caseworker that she drank vodka for days at a time and felt guilty about the effect her and her husband’s drinking had on the children. The mother was so intoxicated at times that the oldest child had to cook for the youngest children and, among other things, the mother was too intoxicated at times to protect the children from the father’s abusive tendencies when he himself was drunk.
  • Matter of Machado v Tanoury (CAF 15-01139) – In this custody/visitation matter, 4AD reverses the lower court’s order, which summarily dismissed the father’s modification petition. The petition contained sufficient facts that alleged a change in circumstances warranting a modification of the existing custody order. Specifically, the father alleged that, since the consent order was entered, the mother has reneged on her promises to allow the father to have overnight visitation with the child. These facts were sufficient to survive a motion to dismiss.
  • Matter of Roseman v Sierant (CAF 15-00189) – In this custody/visitation matter, 4AD modifies the lower court’s orders granting custody of the subject children to two different nonparents. 4AD first determines that extraordinary circumstances existed that justified the award of custody to the nonparents. The father had a long and serious history of alcohol abuse, which created an unsafe and unstable living situation for the children. The father also failed to attend to the medical needs of his two youngest daughters. 4AD finds, however, that the lower court should not have denied visitation with the father’s eldest minor daughter. Although their relationship was strained, the evidence did not establish that visitation would be detrimental to that daughter’s welfare. For similar reasons, the lower court erred in limiting the father’s contact with two other daughters to communication via Skype, supervised by a nonparent.