Case Summaries – Fourth Department Decisions Released on June 16, 2017

Published on June 26, 2017 1:21 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Flowers (KA 12-00859) – 4AD finds that the prosecutor engaged in misconduct on summation, but concludes that D was not deprived of a fair trial. The prosecutor improperly appealed to the sympathy of the jury, and improperly implied that a witness did not testify because he felt “guilt” about D’s actions. The prosecutor also denigrated the defense, misstated certain evidence, vouched for the credibility of the victim, and acted as an unsworn expert when she described D’s behavior toward the victim as “classic grooming behavior”. 4AD concludes, however, that the lower court gave sufficient curative instructions, and the evidence against D was overwhelming, and thus reversal is not required. 4AD admonishes the prosecutor, whose conduct was also at issue in People v Presha (83 AD3d 1406) and People v Fisher (18 NY3d 964), and further admonishes the Monroe County District Attorney’s Office.
  • People v Holloman (KA 14-01746) – 4AD reverses D’s conviction for first-degree aggravated unlicensed operation of a motor vehicle, because the lower court failed to give defense counsel notice of a substantive jury note. The court received the note, along with two others, during a 30 minute period when the court had excused counsel, and the last note of the three indicated that the jury had reached a verdict. 4AD rejects the prosecutor’s argument that the note was ministerial. The note stated “we the jury request a copy of the wording of the law”, and the court would not have been permitted to provide a copy of the statute or jury instructions without the defendant’s consent.
  • People v Wiggins (KA 11-00861) – 4AD affirms the judgment revoking D’s probation, but notes its disagreement with Third Department case law that a defendant’s appeal is rendered moot by the expiration of the maximum term of a defendant’s sentence. 4AD explains that a finding that a defendant has violated probation is “a continuing blot on [his] record”, and can impact future sentencing determinations, including eligibility for a subsequent sentence of probation. For those reasons, an appeal from a judgment finding that a defendant has violated probation is not rendered moot by a defendant’s completion of his sentence.

Family Law Case Summaries:

  • Matter of Austin v Wright (CAF 15-01695) – In this custody/visitation matter, 4AD reserves decision and remits the matter to Family Court for an express determination regarding whether the father established a sufficient change in circumstances to warrant modification of a prior custody order. 4AD declines to exercise its power to make its own finding regarding a change in circumstances, because the record indicates that the lower court completely dispensed with the need to make that finding, and it is not clear from the record what the court would have found had it actually considered the issue.
  • Matter of Deshotel v Mandile (CAF 15-01245) – In this child support matter, 4AD finds that the lower court erred in dismissing the mother’s petition for a downward modification of child support. The court dismissed the petition because the mother failed to provide a financial disclosure from her paramour, who filed an affidavit stating that he refused to provide such a disclosure to the court. 4AD explains that although sanctions may be appropriate in some cases based on a party’s conduct, here, the lower court dismissed the petition based solely on the conduct of a nonparty. 4AD thus reverses the order and remits the matter for a new hearing.
  • Matter of Destiny G. (CAF 16-00305) – In this termination of parental rights case, 4AD reverses the lower court’s order terminating the mother’s parental rights, because the lower court abused its discretion in denying a continuance. The mother’s attorney requested a continuance because the mother, due to emotional distress, was unable to appear in court on the afternoon of the final day of her hearing. 4AD explains that based on the circumstances, and that the issue was termination of parental rights, the lower court abused its discretion in denying the request for a continuance.
  • Matter of Nevaeh D.J. (CAF 16-00234) – In this neglect and custody case, 4AD reverses the lower court’s order granting custody of the subject child to the grandmother. 4AD finds that the lower court erred in granting custody to a nonparent without first finding, pursuant to Family Court Act § 1055-b, that there were “extraordinary circumstances” warranting an award of custody to a relative.