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

Published on April 19, 2015 5:18 pm by hiscockadmin in Appeals Blog

Criminal Case Summaries:

  • People v Armstrong (KA 11-00803) – 4AD finds that the evidence against D was legally insufficient and reduces his conviction for first-degree gang assault to attempted first-degree gang assault. Specifically, the evidence did not establish that the victim sustained a “serious physical injury”. As a result of a fight with D and three accomplices, the victim sustained a 2 to 3-inch laceration to the back of his head, associated hematoma and swelling, and other injuries that were superficial. A CT scan showed only swelling of soft tissue. The laceration was closed with staples, the victim was prescribed painkillers and antibiotics, and he was shortly thereafter released from the hospital. 4AD concludes that this evidence did not show that the injury “creat[ed] a substantial risk of death”. Given the location of the scar and the victim’s overall appearance, the injury also did not result in serious or protracted disfigurement. 4AD further concludes that the evidence established D’s intent to inflict serious physical injury and that he came dangerously near to doing so, and the evidence thus supported a conviction for attempted first-degree gang assault.
  • People v Days (KA 12-00113) – 4AD reserves decision and remits the case because the lower court failed to give D a “reasonable opportunity to present his contention” in support of a motion to withdraw his plea. Before he was sentenced, D wrote a letter to the sentencing court seeking to withdraw his plea. The court transferred the case to another judge. At sentencing, that judge either did not have or did not review D’s letter, and refused D’s repeated requests to submit his written motion. 4AD explains that while the new judge did inquire into some of D’s contentions, the record did not show that the judge was sufficiently familiar with D’s case to make an informed decision on his motion to withdraw the plea.
  • People v Griffin (KA 10-02154) – 4AD reverses D’s conviction for first-degree robbery because he was deprived of a fair trial as a result of prosecutorial misconduct. The prosecutor improperly vouched for the People’s witnesses, became an unsworn witness, made comments with no support in the proof, denigrated the defense, made comments that shifted the burden of proof to D, and appealed to the sympathy of the jury by, among other things, commenting on the victim’s “bravery”. 4AD notes that the prosecutor persisted in making certain comments despite the fact that the court sustained defense counsel’s objections. 4AD further notes that the prosecutor’s improprieties were not limited to the summation, and that the prosecutor asked the People’s witnesses improper questions and attempted to elicit irrelevant and inflammatory testimony.

Family Law Case Summaries:

  • Matter of Avdic v Avdic (CAF 13-01515) – In these consolidated appeals from custody/visitations orders, 4AD modifies the first order because the trial court erred by conditioning the mother’s continued joint custody of the child on her “and/or” the child’s participation in therapeutic counseling. 4AD explains that while such a counseling directive may be a component of a custody/visitation order, a court cannot order participation in such counseling as a prerequisite to a parent’s custody or visitation. Here, the lower court improperly made “the failure or refusal to participate in counseling the dispositive, triggering event in determining custody”. 4AD remits the matter because the lower court also failed to make explicit findings with respect to the relevant factors pertaining to the child’s best interests. Finally, 4AD reverses a subsequent order that was entered based on the mother’s violation of the improper counseling provision in the first order.
  • Matter of Carroll v Carroll (CAF 13-00688) – In this visitation matter, 4AD reverses the lower court’s order granting the incarcerated father visitation with the child. 4AD finds that the lower court abused its discretion in granting visitation, because the evidence at the hearing rebutted the presumption that visitation with a noncustodial parent is in a child’s best interests. The father was incarcerated when the child was born, and did not seek to establish paternity until the child was almost five years old. During that time, the father made minimal attempts to establish a relationship with the child, and at the time of the hearing, admitted that he did not have a relationship with the child. 4AD also notes that the father has a history of domestic violence, including an incident where he choked the mother while she was pregnant with the child.