By Janet Somes:

From January & February, 2008

CRIMINAL LAW

People v Stephens, 47 AD3d 586 (decided Jan. 31, 2008)
Lower court order of suppression of evidence reversed (ouch). Defendant was taking a walk in area where there had been some robberies. One hand was swinging while his other hand was still, near his waistband. Defendant “apparently noticed the officers” but kept looking straight ahead “as if he was very nervous or had seen a ghost”. When cops got out of car D ran and cops caught him, but not before he threw gun under a car (and some drugs too). Lower court’s finding that D’s behavior was innocuous, and reasonable suspicion lacking, was wrong, as First Dept explained that cop had suspicion that D carrying a gun based upon the way he was walking, and that suspicion was heightened when he ran away before cops could ask him questions.

People v Inglasis, 47 AD3d 593 (decided Jan. 31, 2008)
In burglary trial, it was not ineffective, or otherwise prejudicial for defense counsel to elicit from detective that he “believed” defendant had been arrested for prior robberies, given that the court immediately “struck” the testimony.

Matter of Elvin G., 47 AD3d 527 decided Jan. 29, 2008)
Search issue in JD proceeding. Lower court denied suppression without hearing on ground of factual inadequacies in allegations. Affirmed. Dean of school, responding to teacher reporting an electronic noise, possibly from a cell phone, had all students stand and started “checking” their pockets. D then took a hunting knife out of his pocket and held it in open view. First Department held there was not search, and even if there was, it was reasonably tailored to be least intrusive, most effective means of finding the offending cell phone. Only an issue of law here, which was resolvable on allegations, and no reason to remand for more proof as dissent would have done.
*DISSENT (2 judges): Was the Dean’s actions the least intrusive and most effective means? Send it back for a hearing on that issue. Also, court below failed to apply correct legal standard to this search. No showing that the suspected cell phone presented any kind of threat to safety or educational process, justifying a warrantless search. Also, family court found Dean’s actions necessary to restore order to classroom, but allegations suggested this was a substantial invasion not warranted by a ringing cell phone, which had stopped ringing by the time of the search. There were factual disputes to be resolved.

People v Packman, (January 29, 2008)
Denial of suppression reversed and indictment dismissed in well written decision. Police were looking to arrest driver of vehicle (not D) on forgery charges. They stopped car driven by suspected forger, and told passenger (D) to stay in car and keep hands in sight. D tried to exit vehicle and tried to walk away, but police stopped him. D then told to get out of car. D frisked and a small knife taken out of his pocket. Police asked for ID and D told them it was in his backpack. Police asked if they could open backpack it to get ID. A knife, which was the basis of the CPW conviction, was found in backpack. Not only was frisk illegal, but Court rejects theory that search of backpack was result of benign request and consent. People failed to meet their high burden to show consent was unequivocal product of an essentially free and unconstrained choice. People’s burden under these facts is “insuperable”.
*DISSENT: Consent valid, finding attenuation.

People v Rouse, 47 AD3d 637 (January 29, 2008)
Denial of 30.30 motion affirmed. Pre-trial readiness period of 30 days properly charged to Defendant as time without counsel, notwithstanding that the court had assigned counsel. Court assigned attorney who was in another court. There had been no request by counsel for an adjournment or consent to one. Since counsel had just been assigned and had no knowledge of the case, defendant was still without counsel within the meaning of the statute, according to the court. As to post-readiness delay, six weeks was reasonable for DA to respond to motions and provide Grand Jury minutes.

People v Harrison, 47 AD3d 541 (January 29, 2008)
Burglary third conviction affirmed. Although unpreserved, the issue of whether a van is a building is resolved against D, as the van at issue was an "inclosed motor truck," and it met the definition of a "building" under Penal Law § 140.00 (2) and § 140.20 .

People v Nunez, 47 AD3d 545 (January 29, 2008)
Order granting 30.30 dismissal affirmed. People’s statement of readiness as to challenged time period was equivocal, and held against them. DA told the court that they may not be ready on the trial date of April 17th because the DA may need to try another case that day, and suggested a date of May 2. The time between April 17 and May 2 goes against the DA.

People v Allen, 47 AD3d 543 (January 29, 2008)
CPL 440.30 (1-a) does not permit a D who has pled guilty to seek DNA testing.

People v Collado, 47 AD3d 547 (January 29, 2008)
Police had probable cause where unidentified complainant pointed out D and his companions as guys who tried to rob him. As police approached, men took “evasive” action and one (not D) pulled out “air gun” which resembled firearm. That provided probable cause to arrest and remove D to station. Although police could not find the unidentified complainant of alleged initial robbery, while at station D was conveniently identified by a witness of a different robbery, which resulted in present conviction. No one is bothered that the original unidentified complainant disappeared. Also, on PSR sentencing issue, resort to court documents (worksheet and commitment) will permit the imposition of a mandatory PRS period, where court failed to mention it during sentence (Okay, in light of the Court of Appeals decision in People v Sparber. __ NY3d __ (4/29/08) we know that this part of the decsion is wrong).

People v Holman, 46 AD3d 518 (January 24, 2008)
Court was within its discretion to permit juror to submit written questions for the witness, some of which it struck as improper, and others of which it permitted the witness to answer. Also, counsel consented to both procedure and specific questions asked, so current complaint regarding those issues was waived.

People v Davis, 47 AD3d 506 (January 22, 2008)
Refusal to charge lesser included robbery charge affirmed. Victim testified D displayed what appeared to be a firearm and there is no reason to selectively discredit this one portion of V’s testimony to charge down to a robbery third. Also, accomplice testified he heard D threaten to use gun.
*DISSENT: Jurors could have rejected accomplice’s testimony given the proof which showed no gun, and his failure to mention his current claim about D’s threat to use gun before.

People v Shemesh, (January 15, 2008)
Lower court correctly dismissed indictment (with leave to re-present) for failure to offer D a reasonable opportunity to testify before the GJ. Notice of D’s desire to testify clearly served, as was notice that he would not be able to testify during Passover dates. Although three dates were discussed for D to testify, DA eventually only offered a date when D was observing Passover. People had argued that (1) there is no valid religious reason he could not testify during Passover as attested to by a Rabbi, and (2) D did other things during that time which showed maybe he was not all that devout. First Dept would not even go there. Statutory right to testify conflicted with right to exercise religion, and D was diligent and persistent in trying to schedule a date that did not conflict.
*DISSENT: takes issue with majority’s conclusion that D did not testify on two days before Passover began due to no fault of his own.

People v Jean-Pierre, 47 AD3d 445 (January 10, 2008)
Lower court order of suppression of evidence reversed (ouch again). Arresting officer erroneously believed that a “03" sticker on D’s New Jersey License plate meant that the registration had expired in 2003. Upon stopping car, officer got a whiff of weed and saw some baggies of the stuff. His belief about the registration was reasonable, and it was a error of fact not law. Therefore he was justified in stopping the car.

People v Thomas, 47 AD3d 415 (January 3, 2008)
Conviction reversed and new trial granted. Retained counsel was properly relieved by court over D’s objection. But, court should have provided D a reasonable opportunity to retain new counsel, instead of assigning counsel chosen by the court. D made clear that if the court was going to relieve his first attorney, he wanted to hire a new one of his own choosing. Reversal would also be required by the trial court’s improvident exercise of discretion in refusing to order a CPL 730 examination as requested by new counsel. It had been over a year since the last one and there were strong indications a new exam was needed.

People v Mobley, 48 AD3d 374 (Feb 28, 2008)
Lower court order of suppression affirmed. Even though there was testimony that area was high crime area known for drugs and prostitution, there was no indication of such with regard to the lawfully parked car containing a female and male, which police approached, for no objective, credible reason, requesting information about the reason for their presence. Even if first inquiry justified, nothing about response served to elevate level of suspicion, there was no reason for second approach. Gun in plain view, seen during second approach, suppressed. Court did not buy DA’s argument that second approach was just a continuation of first approach.

People v Graham, 48 AD3d 265 (Feb 14, 2008)
Two counts reversed because court below erred in denying suppression of statements. D given Miranda by one cop, and 8 hours later he told a different cop he did not want to talk. Without re-administering Miranda, second cop told D there was evidence linking him to crime and D confessed. Questioning should have seized after D said he did not want to talk. Error harmless as to other counts.


FAMILY LAW

Matter of Kalya, 47 AD3d 571 (decided Jan. 31, 2008)
Neglect (mental illness) determination affirmed. Mother’s behavior of poor impulse control and poor insight was found by the majority to constitute judgment so strongly impaired as to expose the child to risk of substantial harm as to sustain a finding of neglect. Mother’s mental health challenges included depression, inability to cope, tearfulness to the point of inability to communicate, and anger flare-ups. From the evidence doctors concluded a concomitant inability to care adequately for the child. These opinions and observations were based upon a one week period.
* DISSENT (2 judges). Of the two doctors who testified, neither had observed mother long enough to make mental illness diagnosis (2 hours by one, and 1 week following trauma of miscarriage by the other.) Evidence did not show anything more than a physically exhausted mother who had just suffered a miscarriage and had who momentarily “lost it”. Inadequate evidence of neglect due to mental illness. Also, there was a good reason for mother to become angry with the doctor - - he lied to her and tricked her into thinking she was being sent to a place for a “rest” due to exhaustion, only to learn she was being sent to hospital where she was held for evaluation. Second doctor diagnoses of depression was not shown to cause risk to child. Even if there was proof of mental illness, causal connection between condition and risk of harm not established as there needs to be a substantial probability of neglect resulting in risk to child.

Matter of Joshua R., 47 AD3d 465 (January 15, 2008)
Family Court ordered modified and finding of abuse and derivative abuse vacated (neglect and derivative neglect affirmed). After child refused to eat, father forced food in his mouth causing him to vomit, and slapped child causing a bloody nose and black eye. Neglect and derivative neglect (as to sister) were affirmed. Court noted that there was evidence that father did not believe his striking child was excessive, and the evidence did not support a finding that father inflicted an injury to child "which cause[d] or create[d] a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ" (Family Ct Act § 1012 [e] [I]).
*DISSENT: Other evidence shows father had uncontrolled anger and which creates a substantial risk of the requisite harm.

Matter of Jeffery C. (January 10, 2008)
Family Court adjudication of JD modified with PINS adjudication instead. Isolated incident was basis for the JD. The JD adjudication was not the least restrictive available alternative to meet needs of child and community.

Matter of Medina Armor S. (January 10, 2008)
Family Court termination of parental rights reversed, where court inappropriately found incarcerated father abandoned child. Father in prison on murder conviction, with earliest release date in 2016, and drug addicted mother’s whereabouts unknown. Agency took children to prison once to visit father 4 years before bringing termination petition. Petition alleged failure to communicate or visit for 6 months prior to time petition brought. Caseworker testified that she did not contact father directly, and that she did not know she could. (Family court schooled her on her obligation to communicate directly with incarcerated parent.) Evidence showed agency made no efforts to assist in communication. Right before petition filed, an inmate advocacy group contacted agency to arrange visit with father. “Although the court found respondent had abandoned the children, what it really did was take the easier route to termination of parental rights by improperly applying the ‘permanently neglected child’ element of ‘insubstantial contacts’ (Social Services Law § 384-b[7]) rather than the ‘abandoned’ child standard (§ 384-b[5])”, noting these subdivisions are designed to accomplish two different goals. No abandonment on these facts. Good decision.