Case Summaries – Fourth Department Decisions Released on November 13, 2015

Published on November 16, 2015 1:46 pm by hiscockadmin in Appeals Blog

Criminal Case Summaries:

  • People v Casey (KA 13-01022) – 4AD reverses, in part, the lower court’s order denying D’s CPL 440 motion to vacate his conviction based on ineffective assistance of counsel. D was convicted in 2003 of arson and murder. In her 440 motion, D argued, among other things, that defense counsel was ineffective for failing to hire an expert to refute the theory of the prosecutor’s fire investigation expert, and to utilize nationally recognized fire-investigation standards to cross-examine the prosecutor’s expert. 4AD finds that the lower court should have granted a hearing to determine whether counsel should have either hired an expert or cross-examined the prosecutor’s expert regarding the standards published in the National Fire Protection Association 921 Guide for Fire and Explosion Investigations. A hearing is necessary to determine whether those standards were generally accepted at the time of trial and if expert testimony was available.
  • People v Lyon (KA 14-00581) – In this violation of probation matter, 4AD finds that the lower court did not fail to schedule and conduct a prompt hearing pursuant to CPL 410.70 (1). D’s probation was transferred to Wisconsin. He was convicted of new felonies there and sentenced to prison. The New York court issued a warrant, which was lodged as a detainer in Wisconsin. D thereafter sought to be extradited and to plead guilty to the violation of probation, but was not transported to New York until two days after his Wisconsin prison term ended. A hearing was then held in New York after several adjournments. 4AD finds that the hearing here was not improperly delayed, and distinguishes between situations where a defendant is in custody in New York and ones involving out-of-state custody. In cases involving out-of-state custody, the Interstate Agreement on Detainers does not require states to execute detainers before a defendant is released from prison. Here, D was brought to New York soon after his Wisconsin prison term ended.
  • People v Nellons (KA 15-00614) – In this People’s appeal, 4AD affirms the lower court’s order reducing the third-degree criminal possession of a controlled substance count to seventh-degree criminal possession of a weapon. D was found with two bags of crack cocaine weighing a total of eight grams, and police testified that this was not an amount consistent with personal use. 4AD agrees with the lower court that this amount of drugs does not, as a matter of law, permit the inference that D intended to sell them. “More than mere possession of a modest quantity of drugs, not packaged for sale and unaccompanied by any other saleslike conduct, must be present for such an inference to arise.”
  • People v Slade (KA 10-01385) – 4AD finds that the lower court erred in admitting a statement made by D that was not specified in the prosecutor’s CPL 710.30 notice. D made the statement while police were executing a search warrant, and he was lying on the floor handcuffed. He told police he lived “here” when an officer was completing a prisoner data report. 4AD first explains that, generally, when police obtain “pedigree information” from a defendant, such statements need not be specified in a CPL 710.30 notice. But when such information is obtained under circumstances where it is likely to be inculpatory, the prosecutor cannot rely on the pedigree information exception. Here, under the circumstances, the question was likely to elicit incriminatory information, and had a necessary connection to the possessory crimes with which D was charged.

Family Law Case Summaries:

  • Matter of Merkle v Henry (CAF 14-01819) – In this custody/visitation matter, 4AD modifies the Family Court’s order, which, among other things, allowed the child to dictate the extent of visitation with the father. The AFC filed a petition to suspend visitation with the father, and the lower court thereafter ordered that visitation should be at such times as the child and father could agree, and the child was expected to initiate contact with the father for visitation. 4AD explains that the AFC failed to overcome the rebuttable presumption that visitation with a noncustodial parent is in a child’s best interest. As a result, the petition, which requested suspension of visitation, not modification of its terms, should have been denied in its entirety. In any case, the court’s order allowing the child to dictate the terms of visitation “tends unnecessarily to defeat the right of visitation”. A court cannot delegate its authority to determine visitation to either a parent or child, and the order here had the practical effect of denying visitation indefinitely.