Case Summaries – Fourth Department Decisions Released on May 5, 2017

Published on May 8, 2017 12:40 pm by Piotr Banasiak in Appeals Blog

Criminal Case Summaries:

  • People v Case (KA 15-00535) – 4AD reverses D’s conviction for first-degree rape, among other things, in the interest of justice, finding that the prosecutor engaged in misconduct. The prosecutor repeatedly appealed to the jury’s sympathy by asking it to do justice and protect the victim, bolstered the victim’s credibility, and injected her personal opinions into the trial. 4AD further concludes that the evidence was legally insufficient to support the convictions of second-degree assault and second-degree strangulation, because it did not establish that the victim sustained a “physical injury”. Specifically, evidence that the victim sustained minor pain, a one-centimeter bruise on her arm, as well as a swollen neck, was insufficient to prove either physical impairment or substantial pain.
  • People v Days (KA 12-00113) – 4AD modifies D’s sentence from 25 years plus 5 years of postrelease supervision to 20 years plus 2½ years of postrelease supervision, because the sentencing court improperly enhanced D’s sentence based on his failure to sign a written waiver of appeal. Although an appeal waiver was a condition of the plea bargain, D was never told he would have to sign a written waiver. The court thus had no power to enhance D’s sentence on that basis.
  • People v Farley (KA 14-00246) – 4AD reverses D’s conviction for first-degree assault, finding that the verdict is against the weight of the evidence. D was convicted as an accomplice after his son intervened in a fight between D and the victim, and stabbed the victim. 4AD concludes that the evidence did not establish beyond a reasonable doubt that D acted with the intent to cause serious physical injury, or that he aided his son in committing the offense. Following an argument, D and the victim, who were both intoxicated, engaged in a fist fight. Both D and the victim testified that D’s son stabbed the victim after D and the victim had separated. The evidence suggested that D was unaware that the victim had been stabbed, because he called 911 and said the victim had attacked him, and told a bystander that if the victim was looking for him the bystander should tell him that D went into a local bar.
  • People v Gambale (KA 14-00722) – 4AD finds that the lower court erred in concluding that an identification procedure wherein D’s parole officer (PO) viewed a surveillance video was not unduly suggestive. A police officer called the PO and asked about her familiarity with D. The PO confirmed she was familiar with D, and the police officer then asked her to come to the police station to view a surveillance video and determine whether she recognized anyone. The PO identified D as the person committing the robbery. 4AD explains that although it is generally permissible to have a witness view a surveillance video, here, the police officer suggested to the PO, before the identification, that D would be the suspect in the video. The police officer’s conversation with the PO about her familiarity w/ D “singled out” D and was thus unduly suggestive. 4AD reserves decision and remits the matter so that the lower court can consider the prosecution’s alternative argument that the identification procedure was confirmatory.
  • People v Ibarrondo (KA 12-01361) – 4AD finds that the lower court erred in concluding that D made statements spontaneously during custodial interrogation. D was in custody and waived his Miranda rights. He initially denied involvement in the drug crime, but he made admissions after being confronted with evidence that his fingerprints were found on several envelopes of Suboxone. The admissions were reduced to a written statement which referenced “a future inclination to speak with a lawyer.” 4AD explains that D’s statements cannot be deemed spontaneous because they were provoked or encouraged by police when they presented incriminating evidence against D. 4AD reserves decision and remits the matter because there may be other grounds supporting the court’s decision—i.e., whether D validly waived his Miranda rights—which were not addressed by the lower court.
  • People v Joyce (KA 16-01514) – 4AD reduces, in the interest of justice, D’s sentence for first-degree assault and second-degree criminal possession of a weapon to 10 years. The original sentence was harsh and severe in light of D’s age, his lack of a prior criminal record, and other mitigating circumstances.

Family Law Case Summaries:

  • Matter of Greeley v Tucker (CAF 15-01557) – In this custody/visitation matter, 4AD affirms the lower court’s order, which granted custody of the subject children to the maternal grandmother. 4AD finds that the lower court correctly found that there existed the requisite extraordinary circumstances to warrant an award of custody to a non-parent. Since the parents separated in 2007, the father has not had primary custody of the children, and twice consented to award custody to the grandmother when the mother was unable to have primary physical custody. During that time, the father played a small role in the children’s lives and had no contact with them for up to 1½ years at a time. 4AD further concludes that although the lower court failed to make a determination as to the children’s best interests, the record is sufficient for 4AD to make its own finding. The grandmother, who is financially stable, provided a stable home, where the subject children were able to live with other relatives. The grandmother also facilitated the children’s schooling and extracurricular activities.
  • Matter of Brooklyn S. (CAF 15-01654) – In this neglect case, 4AD affirms the lower court’s order, which found that the father neglected the subject child. The father abused illicit substances, including heroin. Although he was participating in a rehabilitative treatment program, the evidence did not establish that he regularly participated in the program, in that he attended only about a third of his appointments. The father also tested positive for drug use while participating in the program. 4AD further notes that the father knew that the mother was using drugs following her pregnancy, and failed to intervene to stop the mother from nursing the child, who was born with neonatal abstinence syndrome, which condition worsened despite medical intervention.