Case Summaries – Fourth Department Decisions Released on February 11, 2016

Published on February 22, 2016 2:21 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Farmer (KA 12-01917) – 4AD vacates D’s sentence, finding that the lower court abused its discretion by failing to give D an opportunity to substantiate his challenge to a prior felony conviction before sentencing him as a second felony drug offender. After D, who was proceeding pro se, alleged that his predicate conviction was invalid based on constitutional violations, the lower court promised that it would obtain the transcripts of the proceedings underlying the prior conviction. At a later court appearance, however, the court stated that it had changed its mind. 4AD finds that under these circumstances, the lower court should not have proceeded with sentencing without at least attempting to obtain the promised transcripts. This was true even though there is no general requirement that a trial court must obtain such transcripts for a defendant.
  • People v Hightower (KA 13-00154) – 4AD reverses D’s conviction, finding that the lower court should have granted the motion to suppress physical evidence. D was a passenger in a car that police stopped for a traffic infraction. Police asked D to exit the car, and asked him questions about his identity and destination. When D responded, he was fidgety, looked around, reached toward his pocket, and gave answers that were contradictory. The officer then asked D whether he possessed any weapons or drugs. 4AD finds that the question about weapons or drugs constituted a level-two common-law inquiry, and that it was not supported by the requisite founded suspicion that criminal activity was afoot. D’s nervousness and the discrepancies in his answers to questions about where he was going were not sufficient to give rise to a founded suspicion. 4AD further finds that when D proceeded to walk away, police were not permitted to seize him, because flight alone is insufficient to justify pursuit. D’s disposal of evidence during the pursuit was a direct result of police illegality, and that evidence should have been suppressed.
  • People v Thomas R.O. (KA 15-01145) – 4AD, in a 3 to 2 decision, finds that D’s waiver of appeal was invalid, and exercises its interest of justice discretion to adjudicate D a youthful offender. In finding the appeal waiver invalid, the majority emphasizes that D was 19 years old at the time of the plea, had no experience with the criminal justice system, and had a history of mental illness and psychiatric hospitalizations. Based on those factors, and statements D made during the plea colloquy, the majority finds the waiver invalid. 4AD notes that the same colloquy may have been adequate for a defendant of a different age, experience, and background. The majority further finds that D should be adjudicated a youthful offender based on his lack of criminal record or history of violence, and the fact that the charges in this case were the result of D’s bipolar disorder, which had been misdiagnosed and inappropriately treated with medications that made his symptoms worse.
  • The dissent (Carni and DeJoseph, JJ.) finds that the valid waiver of appeal precludes consideration of whether D should be adjudicated a youthful offender. The dissent concludes that the record establishes that D understood the waiver appeal, and that the waiver was separate and distinct from the other rights automatically forfeited as part of the plea.
  • People v Stefanovich (KA 14-00852) – 4AD reverses D’s conviction, finding that he was deprived of his right to the effective assistance of counsel. Counsel repeatedly informed the jury that D was a registered sex offender who had previously been convicted of a felony sex offense. D was indicted for first-degree rape after police matched D’s DNA profile, which was contained in CODIS, to the profile of the suspected rapist. During the Sandoval hearing, the prosecutor and the court agreed that reference to D’s prior conviction for first-degree sexual abuse would be too prejudicial, and the court ruled that the prosecutor would be permitted to ask D only if he had a prior felony conviction. Defense counsel then proceeded with the strategy that police suspected D because he was a registered sex offender. 4AD concludes that defense counsel’s “strategy” was objectively unreasonable, because police suspected D based on the DNA match, not because he was a registered sex offender. Defense counsel could have pursued the defense theory—that D had consensual intercourse with complainant—without revealing the fact that D had previously been convicted of a sexual offense. 4AD finds that revealing the previous conviction provided no discernible benefit. In addition, although the evidence may have been overwhelming, defense counsel’s errors were so egregious and prejudicial so as to compromise D’s right to a fair trial.

Family Law Case Summaries:

  • Matter of Annabella B.C. (CAF 14-02151) – In this neglect matter, 4AD finds that the lower court erred by dismissing the mother’s motion to vacate an order entered on consent of the parties, based solely on the fact that an appeal from the order was pending. Because no appeal lies from an order entered on consent, the mother’s sole remedy was to move to vacate the order. 4AD notes that it dismissed the appeal from the consent order for that very reason.
  • Matter of DeJesus v Gonzalez (CAF 15-00313) – In this custody/visitation matter, 4AD reverses the lower court’s order, which denied the mother’s petition for sole custody of the parties’ children. The mother sought custody based on the father’s use of inappropriate physical discipline against the children. 4AD first finds that the mother established a sufficient change of circumstances, warranting an inquiry into the children’s best interests. The father called the mother to pick up their three-year-old daughter because he was unable handle her alleged misbehavior. The mother thereafter observed various injuries to the daughter’s body, which the daughter disclosed were the result of the father’s corporal punishment. The parties’ son corroborated the daughter’s statements. 4AD secondly concludes that the lower court’s custody determination lacks a sound and substantial basis in the record. 4AD explains that the father’s excessive physical discipline resulted in an indicated CPS report. The father was also incapable of meeting his daughter’s psychological and emotional needs. Contrary findings by the lower court were unsupported by the record.