Case Summaries – Fourth Department Decisions Released on May 1, 2015

Published on May 4, 2015 12:40 pm by hiscockadmin in Appeals Blog

Criminal Case Summaries:

  • People v Amrhein (KA 14-00118) – 4AD reverses D’s conviction of second-degree criminal contempt because he was denied his statutory right to a speedy trial. The prosecution failed to announce ready within six months following the date the action was commenced, and also failed to establish a sufficient amount of excludable time. 4AD rejects the prosecution’s argument that the time during which the local criminal court failed to transmit documents to the County Court pursuant to CPL 180.30 (1) is excludable time under the exceptional circumstances exception in CPL 30.30 (4) (g). That failure did not prevent the prosecution from presenting its case to the grand jury or being ready for trial. 4AD also rejects the prosecution’s reliance on D’s alleged consent to the delay, because there was no clear expression of consent in the record by D or defense counsel to relieve the prosecution of responsibility for a delay.
  • People v Carr (KA 12-00517) – 4AD affirms the lower court’s order denying D’s motion pursuant to CPL 440.10. D moved to vacate his conviction on the ground that the prosecutor failed to seek leave from the court to re-present the charges to another grand jury, in violation of CPL 190.75 (3). D was convicted of killing a man after entering his home. D was initially charged only with burglary after making inculpatory statements. He testified at the first grand jury, with the understanding that the grand jury was investigating burglary, murder, and any other charges. The prosecutor only charged the grand jury with a single count of burglary. D was indicted and later convicted. Later, at a second grand jury, the prosecutor presented evidence that D admitted to the murder to a jail inmate, and obtained a murder indictment. D was convicted of that charge after a second trial. 4AD initially concludes that because the issue is jurisdictional, D did not waive it by failing to move to dismiss the indictment before trial. 4AD then finds that the prosecutor never withdrew the murder and robbery charges from the first grand jury, so those charges were never functionally dismissed under People v Wilkins. 4AD notes in particular that there was no direct evidence before the first grand jury that connected D to the victim’s death.
  • People v Washington (KA 14-00314) – 4AD reverses the lower court’s order, which denied D’s CPL 440.10 motion without a hearing. 4AD finds that a hearing is required to determine whether defense counsel was ineffective for failing to introduce certain evidence at a suppression hearing. The hearing concerned the seizure of a gun from a car in which D was a passenger. Police stopped the car due to a faulty brake light. D’s motion contended that the traffic charges against the driver were dismissed because a court found the stop was illegal. D also alleged that counsel failed to call the driver at the hearing. The driver’s affidavit indicated that she had covered the crack on the rear brake lamp with red tape, as advised by another police officer, and the light emanating from the brake lamp was red. The driver had provided this information to defense counsel, along with a photograph indicating that the light was red. Defense counsel also failed to introduce a prior inconsistent statement made by the officer, which indicated that he wrote that the brake lamp was “out”, rather than that it was emitting white light, as he testified at the hearing. 4AD finds that a hearing is necessary to give counsel an opportunity to provide a tactical explanation for failing to introduce this evidence.

Family Law Case Summaries:

  • Matter of Gilman v Gilman (CAF 14-00690) – In this custody/visitation matter, 4AD reverses the lower court’s order, which modified a prior order by granting the mother sole legal and primary physical custody, with visitation to the father. 4AD concludes that the lower court’s finding that the father failed to provide the child with medication is against the weight of the evidence. The father was resistant to providing medication to the child, but he testified that he always gave the child the required medication. Although he did not give the child a sleeping aid, that medication was prescribed on an as-needed basis, and the father testified that the child did not have trouble sleeping at his house. That testimony was not disputed. 4AD further concludes that because this incorrect finding was central to the lower court’s order, that order lacks a sound and substantial basis in the record. 4AD awards primary physical custody to the father because he is better able to address the child’s behavioral issues; in contrast, the mother would resort to physical discipline to control the child’s behavior.
  • Matter of Jacobson v Wilkinson (CAF 14-01382) – In this custody/visitation matter, 4AD modifies the lower court’s order, which granted the parties joint custody, by awarding sole legal and primary physical custody to the mother. 4AD finds that the lower court’s order lacks a sound and substantial basis in the record. The lower court was required to consider the effects of the father’s domestic violence. According to 4AD, the evidence of the father’s domestic violence demonstrates that he possesses a character that is ill-suited to provide the child with moral and intellectual guidance. 4AD thus finds that the child’s best interests are served by awarding the mother sole custody.