Case Summaries – Fourth Department Decisions Released on October 9, 2015

Published on October 20, 2015 12:44 pm by hiscockadmin in Appeals Blog

Criminal Case Summaries:

  • People v Gardner (KA 13-01050) – 4AD reverses D’s conviction for criminal possession of a weapon, finding it was barred by double jeopardy. D was charged in Oswego County with reckless endangerment and possession of a weapon for firing a gun into an occupied house. D had pled guilty to possession of a weapon in Onondaga County, in connection with charges that arose when D was arrested later the same day as the Oswego County incident. 4AD first notes that although D’s contention was not preserved, it is reviewable for the first time on appeal. 4AD then concludes that this case presents a “prototypical instance of a constitutional double jeopardy violation”, because D was prosecuted for a crime in Oswego County to which he had already pled guilty in Onondaga County. 4AD rejects the prosecutor’s argument that double jeopardy did not attach because D had not yet been sentenced on his guilty plea in Onondaga County.
  • People v Medina (KA 10-00808) – 4AD reserves decision and remits the matter to the County Court to give D an opportunity to move to withdraw his plea. When D, a non-citizen, pled guilty, the lower court did not advise him of the potential deportation consequences of the plea. 4AD concludes that, pursuant to People v Peque, D should have the opportunity to establish that there is a reasonable probability that he would not have pled guilty had the court advised him of the possibility of deportation.
  • People v Thompson (KA 13-00070) – 4AD reduces D’s 25-year sentence for first-degree robbery to 15 years. 4AD explains that D has no prior felony convictions, no convictions for violent misdemeanors, and he has a history of mental illness. Under these circumstances, the 25-year sentence is harsh and severe.

Family Law Case Summaries:

  • Matter of Kader v Kader (CAF 14-01619) – In this custody matter, 4AD reverses the lower court’s order, which denied the mother’s motion to vacate a default order and dismiss the father’s custody petition. 4AD finds that the motion should have been granted because the mother was not properly served with process. A process server attempted to serve the petition on the mother during business hours on three separate weekdays at the grandmother’s apartment. The process server thereafter utilized the “nail and mail” method for service. At a hearing, the grandmother testified that the mother had moved from her apartment before service had been attempted. 4AD finds that the lower court never acquired personal jurisdiction over the mother by the “nail and mail” method of service, because the father did not meet the due diligence requirement in CPLR 308 (4).
  • Matter of Christian J. S. (CAF 14-01117) – In this neglect matter, 4AD finds that the lower court erred by finding that the mother had neglected her children. Two months before DSS filed the neglect petition, a temporary order was entered in a different county granting custody of the children to the father. The mother had also moved to a different county in the meantime. DSS thereafter moved to withdraw the petition, but the lower court denied the motion. Testimony at trial came from two witnesses, who testified about only an 18-day period during which the mother lived in Lewis County. During that time, DSS had not sought to remove the children from the mother’s care. 4AD explains that because the children no longer lived with the mother, the neglect finding could not be based on an “imminent” danger to the children, but rather had to be based on actual physical, emotional, or mental impairment to the children. DSS failed to meet that burden.