Case Summaries – Fourth Department Decisions Released on March 25, 2016

Published on April 4, 2016 1:12 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Cooney (KA 11-02191) – 4AD reverses D’s conviction for second-degree robbery, finding that the verdict was against the weight of the evidence. Specifically, the evidence did not establish that the victim sustained a “physical injury”. The victim sustained a cut to his finger, which he treated with ointment and a bandage for one week. He testified that the cut was “very painful”, that the pain subsided the next day and lasted a few days, and that the cut completely healed within one week. 4AD concludes that this evidence did not suffice to establish “impairment of physical condition or substantial pain”. 4AD notes that determining whether “substantial pain” was established requires evaluating both the objective nature of the injury, the victim’s subjective description of the injury and his or her pain, whether the victim sought medical treatment, and the offender’s motive.
  • People v Dettelis (KA 15-01274) – 4AD reverses the lower court’s finding that D violated the terms of his probation. The terms required D to notify a probation officer if he was arrested or questioned by any law enforcement officers. After D had an argument with a court clerk at the courthouse, a police officer was dispatched to D’s house to advise him not to return to the courthouse, and to have his attorney contact the court in the future. The officer expressly disclaimed that he was conducting any sort of investigation. 4AD notes that the probation terms did not pertain to “any contact” with police, and under the circumstances, the evidence did not establish by a preponderance of the evidence that D violated any conditions of probation.
  • People v Diallo (KA 12-01262) – 4AD reverses D’s conviction for second-degree criminal possession of a weapon, finding that the lower court erred in granting the prosecutor’s request to instruct the jury regarding constructive possession. D was charged with reckless endangerment and gun possession after a witness heard gunshots and saw a man in a white hoodie with an object in his hand. The witness saw a flash from the object and heard a loud bang. The witness then saw a second man approach and kick the first man in the face as he was lying on the ground. Police arrived and found the man in the white hoodie, D, lying on the ground with a revolver 5 feet away and a semiautomatic pistol 15 feet away. DNA evidence connected D to the revolver but not the semiautomatic pistol. 4AD concludes that there was no view of the evidence that D had constructive possession of the gun—that is, that he exercised dominion and control over the revolver by a sufficient level of control over the area where the gun was found. The error in charging constructive possession was not harmless because it could not be determined whether the jury convicted D based on a physical or constructive possession theory.
  • People v Henderson (KA 12-02153) – 4AD reserves decision and remits the case for further proceedings, finding that the lower court erred in summarily denying D’s motion to withdraw his plea. D argued at sentencing that his attorney advised him that he could withdraw his plea at any time before sentencing. The attorney did not deny that he made this assertion, and stated only that he advised D to take the plea offer because it was advantageous. On these facts, 4AD finds that D’s motion was not “patently insufficient on its face”, so as to justify denial without a hearing. 4AD explains that its decision in People v Montgomery (63 AD3d 1635) is distinguishable, because there, the parties stipulated that if the attorney were to testify, he would have said that he never advised D that he could withdraw his plea before sentencing. There, unlike in this case, a hearing was not necessary.
  • People v Hudgins (KA 15-01074) – 4AD affirms the lower court’s order, which dismissed count one of the indictment, criminal possession of a controlled substance in the third degree, on the ground that the grand jury evidence was insufficient to establish D’s intent to sell. After a traffic stop, police found 32 bags of marijuana and $750 in D’s pocket, and a separate bag containing 1.6 grams of crack cocaine in his cap. 4AD concludes that the quantity of uncut and unpackaged crack cocaine in this case was insufficient to give rise to an inference that D intended to sell it. 4AD notes that in the Court of Appeals decision in People v Sanchez (86 NY2d 27), 3¼ ounces of cocaine was deemed insufficient to give rise to an inference of intent to sell.
  • People v King (KA 13-00051) – 4AD reverses D’s conviction for third-degree criminal possession of a controlled substance, finding that the lower court should have suppressed the drugs police found on D’s person. Police observed a hand to hand transaction between D and a woman, who then placed something in the area of her bra. The two then saw police, and parted in opposite directions. Officers separately approached D and the woman. One officer detained D in a police car after briefly talking to him. The other officer meanwhile spoke to the woman, who possessed crack cocaine, and said she bought it from D. Officers then removed D from the police car and pat-searched him. D was noncompliant, and police transported him to the station, where they conducted a strip search and found drugs. The trial court found that D was illegally detained, but that the search was attenuated by the information police obtained from the woman. 4AD finds that the court’s initial finding—that D was illegally detained—could not be disturbed on appeal because it was not adverse to him. It then explains that attenuation rarely applies in cases such as this one involving rapidly unfolding street encounters. Here, the lower court erred in finding that the search was attenuated.
  • People v O’Dell (KA 15-00310) – 4AD reverses Ds’ convictions for assault, resisting arrest, and obstructing governmental administration, because the lower court erred by removing certain elements of the crimes charged from the jury’s consideration. Each of the charged crimes required the jury to determine either whether police were performing a lawful duty or official function, or whether the arrest was authorized. When defense counsel attempted to cross-examine a police officer about the need for a search warrant to enter the home, the lower court instructed the jury that it had already ruled that a search warrant was not necessary. 4AD concludes that this instruction removed the above elements from the jury’s consideration.
  • People v Savage (KA 13-02055) – 4AD reverses D’s conviction, finding that the lower court should have granted his motion to suppress. As police were conducting a traffic stop in a “higher crime area” at 6:30 p.m., they saw D and two other men walking on the sidewalk on the other side of the street. D was staring either at the officers or at their patrol vehicle. After the traffic stop, the officers drove toward D, pulled up alongside him, and stated “what’s up, guys?”. D put his head down, walked at a faster pace, and at some point dropped a gun holster. As an officer picked up the holster, he observed D discard a gun. 4AD concludes that the police intrusion was not authorized from its inception because police did not have an objective, credible reason to justify a level-one intrusion under De Bour. “We conclude that merely staring at or otherwise looking in the direction of police officers or a patrol vehicle in a high crime area while continuing to proceed on one’s way, absent any indicia of nervousness, evasive behavior, or other movements in response to seeing the police, i.e., ‘attendant circumstances . . . sufficient to arouse the officers’ interest’ ”, does not permit a level-one intrusion.
  • People v Williams (KA 11-02357) – 4AD reverses D’s conviction, finding that the lower court should have granted D’s motion pursuant to CPL 30.30 to dismiss the indictment. The prosecution argued that a nearly five-year period was excludable time for statutory speedy trial purposes because D was absent from the jurisdiction. 4AD rejects this argument, finding that the prosecution failed to show that D was either trying to avoid apprehension, or that his whereabouts could not be determined despite the exercise of due diligence.

Family Law Case Summaries:

  • Matter of Soldato v Caringi (CAF 14-02008) – 4AD reverses the lower court’s order, which confirmed a Support Magistrate’s determination that respondent willfully failed to obey a court order. 4AD finds that the lower court erred by failing to advise respondent of his right to an assigned attorney, and by failing to conduct a searching inquiry concerning his decision to proceed pro se. 4AD rejects the contention that this issue requires preservation.
  • Matter of Chloe W. (CAF 15-00427) – In this neglect proceeding, 4AD reverses the lower court’s order, which found that the mother had neglected the subject child. 4AD first finds that the lower court had subject matter jurisdiction over the matter under the Uniform Child Custody Jurisdiction and Enforcement Act. The mother relocated to Pennsylvania from New York shortly before the child was born, and DSS commenced this proceeding two days after the child’s birth. 4AD finds that the New York court had jurisdiction because the child and her family have a significant connection with New York. The mother maintained her apartment in New York while staying with her cousin in Pennsylvania, attended health and parenting classes in New York before the child was born, and most of her family lived in New York. 4AD concludes, however, that the lower court erred in admitting into evidence a 2012 evaluation of the mother by a non-testifying forensic psychologist. That evaluation was not admissible under Family Court Act § 1046 (a) (iv), which makes admissible certain business records relating to children in abuse or neglect proceedings.