Case Summaries – Fourth Department Decisions Released on April 28, 2017

Published on May 5, 2017 12:44 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Gibson (KA 15-01843) – 4AD reverses the lower court’s order, which adjudicated D a level three risk pursuant to SORA. The lower court improperly assessed points for criminal history based on D’s prior juvenile delinquency adjudication. The lower court assessed the points based on 4AD’s prior decision in People v Catchings (56 AD3d 1181), which 4AD recently overruled in People v Brown (148 AD3d 1705), where it held that a juvenile delinquency adjudication cannot be considered a crime for purposes of assessing points in a SORA proceeding.
  • People v Howie (KA 15-00922) – In this 3 to 2 decision, 4AD affirms D’s conviction for second-degree murder and first-degree robbery, and finds that his sentence is not harsh and severe. D was 16 years old at the time of the crimes, and received a sentence of 25 years to life on his murder conviction, as well as a consecutive sentence on a robbery charge from a separate incident. The majority explains that D committed heinous acts, showed no remorse and failed to appreciate the consequences of his conduct, and also exhibited callousness upon arrest.
  • Justices Lindley and NeMoyer dissent, and would reduce D’s sentence to 25 years to life. The dissent emphasizes developments in psychology and brain science establishing fundamental differences between adolescent and adult minds. Here, the young defendant was known as a polite and respectful high school student before his rapid “downward spiral”. The dissent notes that the two incidents occurred within a one-month span, D was not the actual shooter, and D received the maximum sentence on his murder conviction.
  • People v Lopez (KA 14-01562) – 4AD reverses D’s conviction because the lower court erred in denying the motion to suppress tangible evidence. Police responded to two calls, about an hour apart, regarding “family trouble” and “shots fired” at the same location. The suspect was a Hispanic male, 5’7”, tattoos on his neck, wearing dark clothing and a Yankees hat, and had crossed, “Asian-type” eyes. Half an hour after the second call, police observed a Hispanic male with tattoos on his neck walk down the street past several police cars, and get into the rear seat of a car, which pulled away. Police stopped the car, and observed that the front seat passenger was a Hispanic male with tattoos on his neck and “Asian style eyes which were also crossed”. Police eventually recovered two handguns. 4AD concludes that police did not have reasonable suspicion to stop the car, because D matched the suspect’s description in only the most general terms. In particular, the officers could not tell if D matched the most distinctive descriptor—“Asian style eyes”—and D’s clothing, a white t-shirt and pajama pants, did not match the description provided by complainant. The seizure of the firearms was thus the fruit of an illegal stop.
  • People v Minckler (KA 15-00129) – 4AD reverses D’s conviction because the lower court improperly allowed D, rather than defense counsel, to decide whether a lesser included offense should be charged. The decision to request a lesser included offense charge is a strategic one over which defense counsel has ultimate decision-making authority. Here, defense counsel initially requested the charge, but then indicated that he was not requesting the charge based on D’s decision not to follow his advice. Although defense counsel indicated that the charge was in D’s best interest, the lower court abided D’s choice to decline the charge. 4AD additionally finds that reversal is required based on the lower court’s failure to order a CPL article 730 competency hearing. In light of the nature and frequency of D’s outbursts, and the prosecutor’s expressed concern about D’s competency, the lower court should have ordered a hearing to ensure that D was competent to stand trial.
  • People v Pritchard (KA 15-01839) – 4AD reverses D’s conviction because the lower court provided an erroneous jury instruction regarding the elements of burglary in the first degree. D was charged with allowing her brother into a house in which she resided, and the brother then entered another resident’s room and assaulted that person. 4AD finds that the lower court failed to instruct the jury that it was required to determine whether the house consisted of “two or more units” and whether the resident’s bedroom was a unit that was “separately secured or occupied”. As a result, the court’s instruction did not adequately convey the meaning of “building” “and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met.”
  • People v Simmons (KA 14-00793) – In a 4 to 1 decision, 4AD rejects D’s argument that the lower court erred in denying his motion to suppress tangible evidence and statements. A police officer was patrolling a “very dangerous street” in a high-crime area known for gang activity, when he observed D and five other men in the middle of the street. The men disbanded as police approached, and D walked past the officer while looking down and holding the center of his waistband under his t-shirt. The officer found this suspicious, and asked D to show his hands. As D did so, the officer observed what appeared to be the handle of a weapon, and then seized the gun. 4AD concludes that the officer had the requisite founded suspicion that justified the level-two request for D to show his hands. That suspicion was based on the location of this encounter, the officer’s experience in investigating weapons offenses in this area, and the manner in which D was grabbing his waistband.
  • Justice Lindley dissents, concluding that the officer did not possess the requisite founded suspicion to justify the level-two intrusion. The dissent argues that grabbing one’s waistband, without any other evidence that there is an object in the waistband, constitutes innocuous behavior. In cases holding that officers had the requisite level of suspicion, the officers either observed an actual bulge in the waistband, or observed the defendant grabbing or cupping an object in the waistband.

Family Law Case Summaries:

  • Matter of Allen v Boswell (CAF 15-01737) – In this custody/visitation matter, 4AD finds that the lower court erred by conditioning the father’s ability to petition for future modification of visitation on the father’s completion of a parenting class. While a court may order such counseling as a component of a custody or visitation order, it does not have the power to require it as a prerequisite to custody or visitation. 4AD thus modifies the order to require the father to comply with the counseling provision as a component of his supervised visitation.
  • Matter of Cameron B. (CAF 15-02107) – In this neglect matter, 4AD reverses the order finding that the mother neglected the child, because the he lower court erred in disposing of the case based on the mother’s purported default, and also abused its discretion by denying counsel’s request for an adjournment. The mother informed both her counsel and the petitioner that she would not be able to attend the hearing due to illness. At the hearing, defense counsel requested an adjournment, but the court proceeded with an inquest, at which counsel participated. 4AD finds that the court erred in finding that the mother defaulted, given that her attorney was present during the hearing and actively participated in her absence. Even assuming that the mother was in default, the lower court should have granted an adjournment given the mother’s illness, the fact that she was present at every other court appearance, this matter was not protracted, and this was the mother’s first request for an adjournment.
  • Matter of John F. (CAF 16-00122) – In this termination of parental rights case, 4AD reverses the lower court’s order, which found that the father abandoned the subject children. The father, who was incarcerated for most of the six months preceding the filing of the petition, contacted his children every month by writing letters, calling them, and meeting with them. He also wrote letters to the children’s caseworker. 4AD finds that the father’s contact was not sporadic, minimal, or insubstantial, and the father thus did not evince an intent to forgo his parental rights and obligations. 4AD also notes that the lower court’s finding that the father did not offer a meaningful plan for the children’s future is not relevant here, because the termination proceeding was based on abandonment, and not on permanent neglect.