Case Summaries – Fourth Department Decisions Released on December 23, 2015

Published on January 4, 2016 1:34 pm by hiscockadmin in Appeals Blog

Criminal Case Summaries:

  • People v Brink (KA 08-02649) – 4AD reverses D’s conviction because the lower court failed to comply with the core requirements of CPL 310.30 when it did not advise defense counsel of the contents of a jury note. As the court was responding to previously sent notes, it told the jury that it would discuss the note at issue with the attorneys. Nonetheless, the record did not indicate that the court showed the note to counsel, nor did the court read the note on the record, before the jury rendered its verdict. The error did not require preservation since defense counsel did not have notice of the contents of the substantive note.
  • People v Callahan (KA 14-02038) – 4AD finds that the lower court erred in conducting a violation of probation hearing in D’s absence. When defense counsel requested an adjournment of the hearing, the lower court immediately stated it was prepared to proceed without D, and began the hearing. 4AD concludes that the lower court erred by proceeding with the hearing without first inquiring into the circumstances surrounding D’s absence and determining whether D’s absence was deliberate.
  • People v Casillas (KA 13-01588) – 4AD reverses D’s conviction, finding that the lower court should have granted the motion to suppress physical evidence. Specifically, 4AD finds that the “emergency exception” did not justify the warrantless entry of police into D’s apartment. Although D and the victim may have been involved in domestic disputes in the past, the responding officers did not have personal knowledge of that history, nor was there any indication that D and the victim were involved in a domestic dispute when police arrived. Under these circumstances, there were not reasonable grounds to believe that an emergency was at hand or that immediate police assistance was necessary to protect life or property.
  • People v Smith (KA 12-01600) – 4AD reverses D’s conviction, finding that the lower court should have granted the motion to suppress physical evidence. Specifically, 4AD finds that the police officer acted unreasonably by conducting a visual inspection of the private area of D’s body on the side of the road. The officer stopped D’s vehicle, asked him to exit the car, and began conducting a pat search. D twice leaned forward during the search, at which point the officer pulled D’s underwear forward, looked at his genital area, and retrieved a bag from the bottom of D’s underwear. 4AD first notes that the officer lawfully conducted the pat search, because he intended to transport D to the police station to charge him with traffic infractions. But, the further strip search was not supported by a reasonable suspicion that D was concealing weapons or contraband under his clothing, and thus was “patently unreasonable”.
  • People v Thomas (KA 10-01432) – 4AD reverses D’s conviction for third-degree robbery. 4AD previously remitted this case for a reconstruction regarding a 911 call recording that was admitted at trial, but was lost after D’s conviction. 4AD finds that, at the hearing, the prosecutor was unable to meet his burden to establish the contents of the call. Summary reversal was therefore required because, without the 911 call recording, meaningful appellate review of D’s contentions was not possible.
  • People v Vasquez (KA 11-01594) – 4AD finds that the prosecutor engaged in misconduct on summation, but that the comments were isolated and did not warrant a new trial. 4AD initially notes that D did not preserve his challenge to all of the prosecutor’s statements, but that interest of justice review is warranted. The prosecutor told the jury that although it appeared there may be a question of guilt based on the length of the trial and number of witnesses, the only reason there was a trial was because D pled not guilty. The prosecutor also said that no matter how much evidence there was against a defendant, our system of justice allowed him or her to plead not guilty. 4AD finds those comments improperly insinuated that D should not have exercised his right to a trial, and impermissibly denigrated D’s exercise of that right. Nonetheless, reversal would be “an ill-suited remedy” in this case.
  • People v Wilcox (KA 12-02264) – 4AD reverses D’s conviction, finding that the lower court should have suppressed the evidence police recovered from D’s jacket. While police were arresting D, a pill bottle fell out of the jacket he was wearing. The officers took the jacket off D, but they did not search it until D was at the police station being interrogated. 4AD concludes that the lower court erred in finding that the search of the jacket was a lawful search incident to arrest. Neither of the two requirements justifying a search incident to arrest were present: (1) the search was not conducted in close spatial and temporal proximity to the arrest, and (2) exigent circumstances were not present. The jacket was in the exclusive control of the police and D could not reach it while he was being questioned in a separate room. 4AD thus grants suppression of the drugs that police found in D’s jacket. It grants a new trial on the count charging D with the drugs in the pill bottle, noting that D’s intent to sell was largely proven based on the additional quantities of drugs found in his jacket.

Family Law Case Summaries:

  • Matter of Strumpf v Avery (CAF 14-00811) – In this custody/visitation matter, 4AD finds that the lower court properly denied the father’s motion to vacate a default judgment. The father failed to establish that he had a reasonable excuse for the default or that he had a meritorious defense. The father’s claims that he did not receive notice of the proceedings were belied both by text messages he sent to the mother, and statements made by his attorney. The father also failed to assert any facts or legal arguments to support his claim that he had a meritorious defense.
  • Matter of East v Giles (CAF 14-01152) – In this custody/visitation matter, 4AD finds that the lower court did not abuse its discretion by precluding the subject child’s hearsay statements because they were not sufficiently corroborated. Family Court Act § 1046 (a) (vi) allows the admission into evidence of a child’s hearsay statements pertaining to abuse and neglect, where those statements are corroborated. Here, although the mother’s witnesses, including a therapist, testified about the child’s increased sexualized behavior and consistent statements, the lower court did not credit that testimony, and it thus could not serve to corroborate the child’s statements. The lower court did credit the father’s witnesses, including a psychologist, who cast doubt on the allegations of sexual abuse.