Case Summaries – Fourth Department Decisions Released on June 10, 2016
Criminal Case Summaries:
- People v Butler (KA 13-01138) – 4AD affirms D’s conviction for weapons possession and assault, but finds that the lower court should have provided an adverse inference charge based on the People’s failure to preserve surveillance video, which D requested with due diligence. The 4AD majority rejects the argument that the People’s duty to preserve evidence is not triggered until a request for that evidence is made by a defendant. To conclude otherwise would give incentive to government agents to destroy evidence before it is requested, and would thus contravene the policy underlying the Court of Appeals decision in People v Handy (20 NY3d 663 )—i.e., to give the government an incentive to avoid destruction of evidence, and raise the consciousness of government agents on this subject.
- Curran, J., concurs in the result, but disagrees with the majority that an adverse inference instruction was required under the circumstances. The concurrence argues that People v Handy, as further clarified by the Court of Appeals in People v Durant (26 NY3d 341 ), does not require an adverse inference charge unless the government destroys evidence after a defendant has made a request for the evidence.
- People v Chant (KA 14-01505) – 4AD affirms D’s conviction, finding that he was required to preserve his contention that the guilty plea was invalid because he was not specifically advised during the plea colloquy of the postrelease supervision (PRS) component of the promised sentence. Before the plea colloquy, the prosecutor placed the terms of the plea bargain on the record, but misstated the PRS period as 25 years, rather than 20 years. During the plea colloquy, the court did not mention the term of PRS. After the colloquy, while discussing the sentencing date, the court stated that the PRS period would be 20 years, and defense counsel and the prosecutor agreed with the court’s recitation of the bargained-for sentence. At sentencing, the prosecutor again misstated the period of PRS, this time as 2 years, but defense counsel then stated that he had discussed the plea with D, including the agreed-upon sentence. 4AD concludes that under these circumstances, where the defect in the plea was apparent on the record and defense counsel had ample opportunity to complain about it, D was required to object to preserve the issue for appeal.
- People v Dolan (KA 14-01683) – 4AD modifies the order of protection issued by County Court which, among other things, prohibited D “from having unsupervised contact with any child under the age of 17 years”. 4AD finds that this condition is overly broad because it extends to individuals unrelated to the criminal action—that is, to individuals who were neither victims nor witnesses in this matter.
- People v Haigler (KA 14-00408) – 4AD reverses D’s conviction following a guilty plea because there was no valid accusatory instrument at the time of the plea. D was initially indicted on one count of first-degree promoting prison contraband, which the lower court reduced to second-degree promoting prison contraband. D then pled guilty to the latter charge. 4AD explains that under CPL 210.20 (6), when a trial court reduces a count in the indictment to a misdemeanor, the prosecutor is required to do one of three things: (1) file a prosecutor’s information containing the reduced charge; (2) re-present the higher count to another grand jury; or (3) appeal the court’s order. Here, the prosecutor failed to do any of these things. 4AD thus vacates the guilty plea because a valid accusatory instrument is a nonwaivable jurisdictional predicate to a criminal action.
- People v Meadow (KA 15-01507) – 4AD reverses D’s conviction for second-degree murder because the trial court erred by admitting into evidence hearsay statements made by the victim to a friend and family members, that D had beaten the victim in the past and threatened to kill her. 4AD rejects the argument that the statements were not hearsay because they were not offered for the truth of the matter asserted. 4AD notes that the lower court denied a request for an instruction that the statements could not be considered for their truth, and the prosecutor relied on the statements for their truth in his opening statement and summation. 4AD also explains that while the evidence might have been relevant under Molineux, such evidence must still be proffered in an admissible form. 4AD declines to follow the First Department’s decision in People v Bierenbaum (301 AD2d 119 [1st Dept 2002]), which recognized an exception to the hearsay rule that would permit hearsay evidence in domestic violence cases as “background evidence”.
- People v Reeves (KA 13-00392) – 4AD reserves decisions and remits the matter for a Wade hearing, finding that the lower court erred in determining that an identification made by a police officer was confirmatory. An undercover officer purchased drugs from D, and before and after the transaction viewed a photograph that allegedly depicted D. D was arrested one year later by a different police agency. The arresting officer had not participated in the undercover transaction. 4AD explains that the identification here was not confirmatory, because unlike in the typical buy and bust situation, D was not identified by the undercover officer contemporaneously with the arrest to ensure police had apprehended the correct individual. Under these circumstances, 4AD concludes that the identification of D did not have the same assurances of reliability that were found by the Court of Appeals in People v Wharton (74 NY2d 921 ).
- Lindley, J., concurs in the result but disagrees with the majority as to the scope of the hearing on remittal. The concurrence argues that the purpose of the hearing should be to determine whether the identification procedure was unduly suggestive, and not whether the identification was reliable.
Family Law Case Summaries:
- Matter of Daniels v Davis (CAF 13-02185) – In this article 8 matter, 4AD reverses the lower court’s order, which found that respondent committed the family offense of second-degree harassment and issued an order of protection. 4AD first concludes that the lower court erred by disposing of the matter based on respondent’s default. No default occurs when a party is represented by counsel and counsel is present when the case is called. 4AD next concludes that the petitioner failed to establish that respondent committed second-degree harassment. 4AD explains that the record does not contain the content of telephone calls and text messages that respondent sent to the petitioner in the context of their custody/visitation dispute. There was thus no proof that respondent intended to alarm or seriously annoy the petitioner, and lacked any legitimate purpose.
- Matter of Gerhardt v Baker (CAF 15-00901) – In this child support matter, 4AD reverses the lower court’s order, because the lower court erred in denying the father’s objections to the Support Magistrate’s orders. First, the Support Magistrate erred in failing to advise the father of his right to an attorney on the mother’s violation petition. Second, the Support Magistrate failed to conduct an adequate hearing on the father’s modification petition. 4AD explains that the hearing was “inherently flawed” because the father was neither given an opportunity to testify nor given an opportunity to call his own witnesses. The magistrate’s cursory handling of the matter did not give the father the sort of “meaningful hearing” to which he was entitled.