Case Summaries – Fourth Department Decisions Released on October 2, 2015
Criminal Case Summaries:
- People v Bartholomew (KA 15-00485) – In this People’s appeal, 4AD rejects the prosecutor’s argument that the lower court erred in finding that the search warrant was not supported by probable cause. 4AD first explains that hearsay information provided by an informant must meet both prongs of the Aguilar-Spinelli test–that is, the informant must be reliable and have a basis for his knowledge. Here, although the identified citizen informant was reliable, the search warrant application failed to establish the basis of knowledge of the ultimate source of the information in the application. A “Statement of Facts” attached to the application was not signed, and it thus could not be concluded that the information contained therein was based on the personal knowledge of the affiant.
- People v Heatherly (KA 13-00300) – 4AD finds that the trial court should have dismissed the first-degree perjury count in the indictment based on lack of specificity. The prosecutor failed to set forth the particular falsehood it intended to prove and the factual basis for asserting it was false. 4AD explains that nothing in the record indicated what the grand jury believed was false, and the indictment thus did not provide D with fair notice of the accusations against her.
- People v Howard (KA 10-00695) – 4AD reverses D’s conviction for resisting arrest as against the weight of the evidence. The prosecutor conceded on appeal that the evidence failed to establish that D’s arrest for disorderly conduct was authorized. Because D’s arrest was not authorized by probable cause, D could not be guilty of resisting arrest.
- People v Richardson (KA 11-00411) – 4AD finds that D’s conviction for second-degree assault was not supported by legally sufficient evidence. D was convicted under Penal Law § 120.05 (3), which provides that a defendant is guilty of assault when he causes physical injury to a police officer, with the intent to prevent the officer from performing a lawful duty. Here, the officer was illegally searching D when D caused physical injury, and thus was not performing a lawful duty.
Family Law Case Summaries:
- Matter of McClinton v Kirkman (CAF 14-01645) – In this custody matter, 4AD finds that the lower court erred in granting the father’s motion to dismiss the mother’s modification petition at the close of the mother’s case. The mother’s proof established a prima facie case of a change of circumstances that might warrant a modification of the prior custody order. Specifically, the proof showed that the child did not live with the father for a significant period of time, and that the mother’s work schedule had changed substantially since entry of the prior order. The mother thus met her burden to establish a change of circumstances. 4AD reverses the lower court’s order and remits the matter for further proceedings before a different judge.
- Matter of Ordona v Campbell (CAF 14-00442) – In this custody/visitation matter, 4AD affirms the lower court’s order, which terminated the grandmother’s visitation with the two subject children. 4AD first finds that the lower court properly admitted hearsay statements made by the two subject children. The two statements tended to support one another, and viewed together, provided sufficient indicia of reliability. They were thus admissible under Family Court Act § 1046 (a) (vi). 4AD also concludes that the record does not support the grandmother’s contention that termination of visitation will eliminate contact between the subject children and their half-siblings. In any case, there is an overwhelming need in this case to warrant the disruption of the sibling relationships. Specifically, the grandmother failed to abide by court orders and frequently engaged in acts that undermined the children’s relationship with their father.