Case Summaries – Fourth Department Decisions Released on October 7, 2016

Published on October 10, 2016 6:39 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Leubner (KA 15-01477 & KA 15-01479) – 4AD reverses D’s convictions because the lower court erred in denying his motion pursuant to CPL 30.30 to dismiss the indictments. 4AD finds that a letter defense counsel wrote to the prosecutor’s office, asking to discuss a potential plea offer before the prosecutor presented the case to the grand jury, did not constitute a waiver of D’s speedy trial rights. 4AD explains that such waivers must be explicit and unambiguous, and defense counsel did not explicitly state or even suggest in his letter that he was waiving D’s rights under CPL 30.30.
  • People v Moss (KA 14-00532) – 4AD reverses D’s conviction because he was denied his right to testify before the grand jury. D sent a written notice to the prosecutor indicating his desire to testify before the grand jury. In response, the prosecutor sent defense counsel a letter indicating that the grand jury would be hearing the case during a given week, and asking counsel to state whether D wished to testify. Later, the prosecutor also told defense counsel that the grand jury would be hearing the case the next day. 4AD explains that CPL 190.50 (5) (b) requires the prosecutor, in response to a defendant’s request to testify, to provide notice that he will be heard by the grand jury at a given time and place. The notice requirements of CPL 190.50 are strictly construed. Here, the prosecutor’s letter and his statement to defense counsel failed to give adequate notice of the time and place that D could testify before the grand jury.
  • People v Rozier (KA 14-01506) – 4AD reverses D’s conviction because he was denied a fair trial due to prosecutorial misconduct. Specifically, the prosecutor exaggerated the significance of DNA evidence found on a gun, by arguing that it established D’s “guilt beyond all doubt”. In actuality, the DNA expert testified that D was among 1 in 15 Americans who could not be excluded as a contributor to the DNA mixture found on the gun. 4AD concludes that the prosecutor’s flagrant distortion of the inconclusive DNA evidence caused such substantial prejudice that D was denied due process of law. 4AD also notes that D was denied the effective assistance of counsel due to counsel’s failure to object to the prosecutor’s comment.

Family Law Case Summaries:

  • Matter of Cramer v Cramer (CAF 15-00091) – In this custody/visitation matter, 4AD affirms the lower court’s order granting sole custody of the subject children to the father, and supervised visitation to the mother. 4AD explains that one parent’s concerted effort to interfere with a child’s relationship with the other parent is so inimical to the child’s best interests to raise a strong probability that the interfering parent is unfit to be the custodial parent. Here, the evidence showed the mother was alienating the children from the father. The mother testified that she did not want the children to have a relationship with the father, and she denied or obstructed the father’s visitation with the children. 4AD also finds that the part of the order requiring the mother to engage in mental health counseling and a parenting program was proper. That requirement was not a prerequisite to the filing of future modification petitions, and thus was merely a component of the order.
  • Matter of Mickle v Mickle (CAF 14-02047) – In this custody/visitation matter, 4AD modifies the lower court’s order granting sole custody of the subject children to the father. 4AD finds that the lower court improperly ordered that the mother must actively engage in counseling before seeking visitation with the children. Although such counseling may be a component of a custody/visitation order, a court does not have the authority to make it a prerequisite to custody or visitation.