Case Summaries – Fourth Department Decisions Released on June 12 , 2015

Published on June 15, 2015 12:33 pm by hiscockadmin in Appeals Blog

Criminal Case Summaries:

  • People v Bailey (KA 14-00570) – 4AD reverses the lower court’s order, which denied D’s motion to vacate his conviction pursuant to CPL 440.10. 4AD finds that the lower court should have held a hearing to determine whether (1) the People violated their Brady obligations by failing to disclose a plea agreement made with the codefendant, and (2) a sworn juror lacked the capacity to serve and had misrepresented his employment status. 4AD explains that, in support of his Brady claim, D submitted transcripts of the prosecutor’s statements during the codefendants case regarding the agreement. That evidence, and D’s contentions in support of the motion, necessitated a hearing. In support of the second contention, D submitted evidence that the juror may have a developmental disability and had misrepresented his employment status. D could not obtain additional information without a judicial subpoena, which the lower court declined to provide. Under those circumstances, a hearing was required.
  • People v McKnight (KA 13-01758) – 4AD vacates D’s sentences because the lower court relied on materially untrue information relating to D’s criminal history when it imposed sentence. Although this issue was not preserved, 4AD reaches it in the interest of justice, and further notes that D waived his right to appeal in one of the two cases on appeal, but the waiver did not encompass the specific challenge to D’s sentence. When sentencing D, the lower court said D had been involved in more than 40 residential burglaries. 4AD explains that this statement was unsupported by the record and constituted improper speculation. The trial court’s reliance on untrue information deprived D of due process.
  • People v Pierre (KA 15-00119) – In this appeal by the People, 4AD affirms the lower court’s order, which granted D’s motion pursuant to CPL 440.10 to vacate the judgment of conviction based on newly discovered evidence. D had been convicted of murder and arson. At the hearing on the motion, two witnesses testified that a third person told them that he beat the two victims to death with a baseball bat, and then set a fire to destroy evidence. One witness was a “jailhouse lawyer” whom the third party asked whether he could be convicted for a crime where someone had already been convicted for it. The other witness was the third party’s ex-wife, to whom the third party had made admissions and threatened to kill if she disclosed them. A police report from an unrelated incident corroborated the wife’s testimony. 4AD rejects the People’s claim that the hearsay statements were not declarations against penal interest because the third party was not unavailable. 4AD explains that it is reasonable to presume that the third party, if called to testify, would invoke his Fifth Amendment privilege against self-incrimination. The statements were also supported by independent proof, namely, evidence at defendant’s trial that the two victims were beaten to death.

Family Law Case Summaries:

  • Matter of Gunn v Gunn (CAF 13-01398) – In this custody/visitation matter, 4AD reverses the lower court’s order based on information provided to 4AD by the Attorney for the Child on appeal. The lower court granted custody to the father with visitation to the mother. According to the AFC, since December 2014, the children have been living with the mother, with the apparent consent of the father. 4AD explains that it may take notice of new facts and allegations that indicate that the record on appeal is no longer sufficient to determine the propriety of the lower court’s custody determination. Here, based on the new information, 4AD reverses the lower court’s order, and remits the matter for an expedited hearing.
  • Matter of Crystiana M. (CAF 13-01891) – In this Article 10 case, 4AD affirms the lower court’s order, which found that the grandmother had neglected the subject child, her granddaughter. The grandmother, knowing that the child’s mother was addicted to opiates, either purchased suboxone for her, or provided her with money knowing she would use it to buy suboxone herself. 4AD notes that it has previously held that a finding of neglect may be predicated on the misuse or illegal purchase of suboxone. 4AD also agrees with the lower court that the grandmother was feeding the mother’s drug addiction in order to keep the child with her without any court intervention.
  • Matter of Majuk v Carbone (CAF 13-02017) – In this custody/visitation matter, 4AD reverses the lower court’s order, which terminated, sua sponte, the father’s visitation with the child. The mother filed an amended custody petition, asking that the father’s visitation be supervised. The court then terminated the father’s visitation sua sponte. 4AD notes that an appeal as of right does not lie from an order that does not decide a motion made on notice. Here, the father did not seek leave to appeal, but 4AD exercises its discretion to treat the father’s notice of appeal as an application for leave to appeal, and grants the application in the interest of justice. 4AD concludes that the lower court erred in granting relief that the mother did not seek in her petition. It explains that the parties did not have notice that such relief might be ordered, and thus did not have an opportunity to address the need for such an order.