Stats & Case Summaries – Fourth Department Decisions Released on November 21, 2014

Published on January 21, 2015 6:16 am by bdgadmin in Appeals Blog


Criminal Case Summaries:

  • People v Dukes (KA 12-01621) – 4AD modifies D’s conviction by reversing those parts convicting him of criminal sexual act in the first degree and rape in the first degree. Those two counts were rendered duplicitous by the evidence at trial. Each count charged D with a single instance of the prohibited conduct during the summer of 2010. At trial, however, the victim testified that D regularly subjected her to such conduct, and did not provide specific testimony about any single instance. Under the circumstances, it was impossible to determine whether D was convicted for engaging in the conduct for which he was indicted, or whether the jury reached a unanimous verdict. 4AD explains that the remedy in this case is to dismiss the two counts, with leave to the People to re-present them to another grand jury. Dismissal with prejudice is not warranted because it is not possible to determine whether D’s double jeopardy rights would be violated by a second prosecution.
  • People v Hymes (KA 10-01590) – 4AD reverses D’s conviction for second-degree burglary because he was denied his right to testify before the grand jury. D and his first attorney were informed at the arraignment on the felony complaint that D could testify before the grand jury the next morning, which was in less than 24 hours. The first attorney was relieved the same day due to a conflict of interest. After the grand jury indicted D the next day, a new attorney was assigned to represent him. That attorney objected to the short notice given to D. The prosecutor offered to allow D to testify before the same grand jury, but refused D’s request to testify before a different grand jury. 4AD finds that D was not given “reasonable time” to consult his attorney and to exercise his right to testify before the grand jury.
  • People v Parson (KA 13-00656) – In a 4 to 1 decision, 4AD rejects, among other things, D’s argument that he was deprived of effective assistance of counsel at his suppression hearing. D was stopped by a police officer, who testified that he observed that the windshield of D’s car had a crack in it, and that there was an object hanging from the rearview mirror. The officer searched the car after he smelled burnt marijuana, and found a gun. The lower court denied the motion to suppress. The majority and dissent agree that D’s contention regarding counsel’s failure to cross-examine the officer regarding an inventory-search form could not be reviewed on appeal because the form was not included in the record on appeal. The dissent nevertheless notes that the form shows there was no damage to the windshield. The majority concludes that defense counsel was effective during the suppression hearing. The dissent, however, argues that counsel failed to cross-examine the officer regarding lighting conditions, D’s proximity to streetlights, and weather conditions. Counsel’s failure to do so “was tantamount to a failure to supply County Court with a rationale to grant suppression”.

Family Law Case Summaries:

  • Matter of Baxter v Borden (CAF 13-01381) – In this custody/visitation matter, 4AD finds that the Family Court properly granted the father’s relocation petition. The father relocated with the children before seeking permission to do so, which 4AD notes is not to be encouraged. Still, the unilateral removal of children from the jurisdiction is just one factor among many, and “an award of custody must be based on the best interests of the children and not a desire to punish a recalcitrant parent”. 4AD concludes that based on all the relevant factors, the father established by a preponderance of the evidence that relocation was in the children’s best interests.
  • Matter of Joseph E.K. (CAF 13-13-01888) – In this termination of parental rights matter, the mother appealed from two separate orders, which terminated her parental rights on the grounds of mental illness and permanent neglect. 4AD first finds that the Family Court correctly found that DSS established by clear and convincing evidence that the mother suffered from a mental illness and was unable to provide adequate care for the child. The mother suffered from schizophrenia, which caused her to have delusions and grossly erroneous beliefs. 4AD then explains that the lower court erred in also finding that the mother permanently neglected her children. “The mother ‘could not be found to be mentally ill to a degree warranting termination of [her] parental rights and at the same time be found to have failed to plan for the future of the child[] although physically and financially able to do so’”.