Case Summaries – Fourth Department Decisions Released on May 6, 2016

Published on May 15, 2016 6:13 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Bennett (KA 12-02016) – 4AD reverses the order denying D’s CPL 440 motion without a hearing. D moved to vacate his judgment of conviction based on ineffective assistance of counsel. Specifically, D alleged that defense counsel advised him that he would not be deported as a result of his guilty plea because he received a prison sentence shorter than five years. He was thereafter deported to Jamaica. 4AD concludes that D’s allegations are not incredible as a matter of law, and the lower court thus should have held a hearing to determine if D is entitled to relief. 4AD rejects the People’s argument that the motion was properly denied because D did not submit an affidavit from defense counsel. Where a defendant’s claim is adverse and hostile to his trial attorney, the defendant need not obtain an affidavit from counsel, nor must a defendant explain his failure to do so.
  • People v Tucker, III (KA 12-02303) – 4AD reverses D’s conviction because the lower court failed to conduct a sufficient inquiry into D’s complaints regarding a conflict of interest with defense counsel. After defense counsel told the lower court that D wanted a new attorney, and that there had been a breakdown in communication, D told the court that he had filed a grievance against counsel resulting in a conflict of interest. 4AD explains that under these circumstances, the lower court was required to conduct an inquiry to determine whether counsel could continue to represent D in light of the grievance and the breakdown in communication. Here, the court did not ask a single question regarding D’s complaints.

Family Law Case Summaries:

  • Matter of Thomas B. (CAF 14-00906) – In this article 10 matter, 4AD modifies the lower court’s order by vacating the disposition and remanding the matter for a new dispositional hearing. 4AD finds that the lower court should have let the mother appear at the dispositional hearing by telephone pursuant to Domestic Relations Law § 75-j. The mother moved to Florida, with assistance from DSS, in between the fact-finding and dispositional hearings. She thereafter requested to appear at future court appearances by telephone. 4AD finds that the lower court abused its discretion in denying the mother’s request, because it failed to consider the mother’s limited financial means on her ability to travel to New York.
  • Matter of Tyler M. (CAF 14-01822) – In this article 10 matter, 4AD reverses the lower court’s order finding that the father neglected the subject child and dismisses the neglect petition. The evidence at the fact-finding hearing consisted principally of the mother’s out-of-court statements as testified to by a caseworker and contained in police reports. 4AD concludes that those statements did not come within any statutory or common-law exception to the hearsay rule, and thus were inadmissible to prove neglect against the father. Because the non-hearsay proof did not establish neglect, 4AD dismisses the petition.