Stats & Case Summaries – Fourth Department Decisions Released Jan 2, 2015

Published on January 21, 2015 6:16 am by bdgadmin in Appeals Blog


Criminal Case Summaries:

  • People v Barber (KA 10-01192) – 4AD reverses D’s conviction for second-degree murder upon his plea of guilty. First, the lower court should have suppressed D’s statements to police because they were elicited after D invoked his right to counsel. Before police had read D his Miranda rights, D asked an officer to retrieve the telephone number of his attorney from D’s wallet. The officer acknowledged D’s request but asked him to continue speaking with police. 4AD finds that, under the totality of the circumstances, D unequivocally invoked his right to counsel. Second, D was deprived of his right to effective assistance of counsel based on counsel’s failure to move to suppress the gun police found on D’s person. Counsel moved to suppress evidence that did not exist, but did not move to suppress the gun, which was found after police stopped D and three other people based on the fact that they were 8 to 10 houses away from the location of reported gunfire. 4AD explains that there is no indication in the record that police had a founded suspicion that criminal activity was afoot before they stopped D and his companions. And, there was no strategic reason for failing to move to suppress the gun, while moving to suppress evidence that did not exist.
  • People v Carver (KA 10-01363) – In a 3 to 2 decision, 4AD finds that D was not denied his right to effective assistance of counsel. D argued that defense counsel was ineffective for failing to move to suppress evidence police found after an unlawful arrest. D was the passenger in a vehicle police stopped for a traffic infraction. D and the driver provided false identifying information and appeared nervous and anxious. Police observed duffel bags, gloves, and a laptop computer in the backseat. When the officer went to his patrol vehicle to run a records check, the driver fled. The officer saw D removing his seat belt and attempting to exit the vehicle, and detained him. The 4AD majority finds that the officer did not arrest D, but conducted an investigatory detention, and had the requisite level of suspicion to do so. 4AD also notes that D only argued that the arrest or detention was unlawful, not that the initial stop was illegal. 4AD alternatively reasons that even if there was a colorable basis to move for suppression, counsel had a strategic reason for not making the motion, because the evidence was not dispositive, and could have been used anyway on cross-examination when D testified at trial.Justices Fahey and Whalen dissent, and argue that defense counsel was ineffective. The dissent first notes that D did argue that counsel erred in failing to challenge the stop of the car, and did not limit his argument to the lawfulness of the arrest. The dissent then explains that the correct standard to be applied is “whether the motion at issue had more than little or no chance of success.” Previous cases holding that a defendant is required to show that a motion “would have been successful” are wrong and should not be followed. Here, that standard was met, and there was no strategic reason for counsel’s failure to make the motion. The dissent argues that the motion would have been dispositive, and would have given D a chance to question the officer before trial “and to bolt that officer to a narrative of the traffic stop and the police activity that ensued as a result of that stop.”
  • People v Davila (KA 12-00600) – 4AD reverses D’s conviction for third-degree criminal sale of a controlled substance because the evidence did not establish that D acted in concert with a codefendant to sell heroin. D was standing in front of a house with a group of men, when he was approached by a woman who asked for heroin in Spanish. D led her toward the back of the house, but did not participate in the drug transaction with the codefendant, nor did the police surveillance team observe him in close proximity to the transaction. 4AD finds that D did nothing more than direct the buyer to a location where she could purchase heroin. This evidence did not establish that D shared the codefendant’s intent to bring the transaction about.
  • People v DeAlmeida (KA 13-00336) – 4AD reverses D’s conviction for seventh-degree criminal possession of a controlled substance, upon a plea of guilty, because defense counsel was ineffective for failing to move to suppress the drugs police found on D’s person after a traffic stop. A police officer stopped D’s car based on a vehicle and traffic violation. The officer observed that D was nervous, and when he asked D where he was coming from and going, D gave answers that did not make sense. The officer then ordered D out of his car and asked if he had anything illegal on him. D said he had “coke”, and the officer found cocaine in his pocket. 4AD finds that D established that a suppression motion would likely be successful, because the officer did not have the requisite suspicion to conduct a common-law inquiry. Counsel was thus ineffective for failing to make the motion.
  • People v Ellison (KA 13-00035) – Following his conviction of third-degree burglary and fourth-degree criminal possession of stolen property, D was sentenced as a persistent felony offender to 20 years to life. 4AD finds the sentence harsh and severe and reduces it to 15 years to life. Although D has an extensive criminal history, 4AD explains that “he is essentially a serial shoplifter who does not engage in acts of violence.” 4AD also notes that before trial, D was offered a sentence of 2 to 4 years in prison to satisfy both charges against him.
  • People v Forbes-Haas (KA 12-00280) – 4AD reverses D’s conviction for third-degree grand larceny because the lower court erred by charging the claim-of-right defense as an affirmative defense. In doing so, the court improperly shifted the burden of proof to D, and committed a mode of proceedings error. Although Penal Law § 155.15 (1) states that the claim-of-right defense is an affirmative one, the Court of Appeals has held that the statute is unconstitutional insofar as it shifts the burden to a defendant to disprove the element of intent.
  • People v Harvey (KA 11-01211) – 4AD reverses D’s conviction, upon a plea of guilty, of second-degree criminal possession of a weapon. D’s plea colloquy was factually insufficient because it did not establish territorial jurisdiction. The indictment charged acts that occurred in Ohio and in New York, but D admitted to possessing a weapon in Ohio only. 4AD finds that this case is analogous to those where the plea colloquy negates an element of the crime. Thus, inasmuch as D’s colloquy cast significant doubt on the State’s power to prosecute the case, the lower court had a duty to inquire further to ensure that the State had territorial jurisdiction over the offense. 4AD finds that this issue survives D’s waiver of his right to appeal, does not require preservation, and was not waived by D’s guilty plea.
  • People v Tapia-DeJesus (KA 11-02476) – 4AD reverses D’s conviction of second-degree criminal possession of a weapon because the lower court erred in denying D’s challenge for cause to a prospective juror, and D was denied his right to effective assistance of counsel. The prospective juror indicated that there was a possibility he would have sympathy for police officer witnesses. Thereafter, that juror never provided unequivocal assurances that he would not be biased in favor of police. The causal challenge to the juror thus should have been granted. Defense counsel was ineffective because he elicited testimony that the lower court had precluded in a pretrial ruling, and referred to D as a “drug dealer” on summation.
  • People v Woods (KA 12-01947) – 4AD reverses D’s conviction, upon a plea of guilty, of second-degree attempt assault. D’s plea was factually insufficient because D did not admit to any conduct underlying the crime, and never affirmatively pled guilty to the crime. Though D did not move to withdraw his plea, 4AD finds that this case falls within the narrow exception to the preservation requirement, because D’s answers to the lower court’s questions cast significant doubt upon his guilt or otherwise called into question the voluntariness of his plea.

Family Law Case Summaries

  • Matter of Caughill v Caughill (CAF 13-01202) – In thus custody/visitation matter, 4AD affirms the order awarding sole custody of the child to the mother. 4AD first notes that even assuming that the Judicial Hearing Officer improperly prejudged the issue of custody, 4AD’s authority in custody matters is as broad as the trial court’s, and it can make a best interests determination in the interest of judicial economy and the child’s well being. Here, the mother was in a better position to provide stability and continuity for the child and to provide financially for the child. The mother was also more likely to foster a relationship between the child and noncustodial parent. 4AD also notes that there was evidence of domestic violence committed by the father, and that the AFC indicated that the child wished to live with the mother.
  • Matter of Morrissey v Morrissey (CAF 13-00852) – In this custody/visitation matter, 4AD affirms the order awarding sole custody of the children to the father. 4AD first notes that although the lower court did not expressly conclude that there was a significant change of circumstances necessitating a modification of the prior custody order, the court did make extensive findings of fact that unequivocally establish that a change of circumstances occurred. 4AD further finds that, in making its custody determination, the lower court did not place undue emphasis on the mother’s failure to comply with discovery orders. Failure to comply with such orders is a factor a trial court can consider in assessing the relative fitness of the parties and the custody arrangement that is in the child’s best interests. The court is entitled to impose appropriate sanctions for uncooperative parents. Here, the lower court did not abuse its discretion in emphasizing the mother’s noncompliance.