You are here: / MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY...

Search Results

/

MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Family Court in this neglect proceeding, determined the matter should not have been disposed of based upon the mother’s purported default and mother’s attorney’s request for an adjournment should have been granted. The court noted that when, as here, a party’s attorney is present and participates in the proceeding a default finding is improper:

​

“As we have repeatedly held, a respondent who fails to appear personally in a matter but nonetheless is represented by counsel who is present when the case is called is not in default in that matter” … . Moreover, inasmuch as the mother’s counsel objected on ten occasions during the inquest, this is not a situation where a default could be found based, at least in part, upon counsel’s ” election to stand mute’ ” during the inquest … . …

​

We further agree with the mother that the court abused its discretion in denying her counsel’s request to adjourn the hearing. The request was based on the fact that the mother was unable to attend the hearing owing to illness. It is well settled that the grant or denial of a request for an adjournment for any purpose is a matter resting within the sound discretion of the trial court … . Here, the record demonstrates that the mother contacted her counsel and petitioner prior to the hearing to report her illness, that the proceedings in this matter were not protracted, that the mother personally appeared at all prior proceedings, and that the request for an adjournment was the mother’s first… . Matter of Cameron B., 2017 NY Slip Op 03299, 4th Dept 4-28-17

 

FAMILY LAW (MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)/DEFAULT (FAMILY LAW, MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)

/

REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED.

The Fourth Department determined Family Court abused its discretion when it refused mother’s attorney’s request for an adjournment because mother could not attend the proceeding in which she was accused of committing two family offenses:

​

We agree with the mother that the court abused its discretion in denying her attorney’s motion to adjourn the hearing because the mother was unable to attend. We therefore reverse the order on appeal and remit the matter to Family Court for further proceedings on the amended petition. In Family Court Act article 8 proceedings, the court “may adjourn a fact-finding hearing or a dispositional hearing for good cause shown on its own motion or on motion of either party” (Family Ct Act § 836 [a]). Although the court does not abuse its discretion in denying a request for an adjournment where the party making the request gives no reason for his or her absence … , here, the mother explained her absence. Moreover, the proceedings were not protracted, and the mother made no prior requests for an adjournment … . Matter of Drake v Riley, 2017 NY Slip Op 03282, 4th Dept 4-28-17

FAMILY LAW (REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED)

/ ,

JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9.

The Fourth Department, reversing County Court, determined defendant’s juvenile delinquency adjudication should not have been used to calculate his risk level under risk factor 9:

​

Defendant was assessed 15 points under risk factor 9 for a prior crime as a juvenile delinquent, and the court, relying on People v Catchings (56 AD3d 1181 … , rejected defendant’s challenge to the assessment of points under risk factor 9. As we recently held in People v Brown (148 AD3d 1705, ___), however, a juvenile delinquency adjudication may not be considered a crime for purposes of assessing points in a SORA determination, and Catchings should no longer be followed to that extent. Consequently, we conclude that the court erred in considering defendant’s juvenile delinquency adjudication in assessing 15 points under risk factor 9.

Removing the improperly assessed points under risk factor 9 renders defendant a presumptive level two risk. Under the circumstances of this case, we remit the matter to County Court for further proceedings to determine whether an upward departure is warranted … . People v Gibson, 2017 NY Slip Op 03355, 4th Dept 4-28-17

 

CRIMINAL LAW (SORA, JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)/SEX OFFENDER REGISTRATION ACT (SORA)  (JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)/JUVENILE DELINQUENCY ADJUDICATION (SORA, JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)

/ , ,

JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE.

The Fourth Department, in an original Article 78 proceeding, determined the judge was prohibited from imposing on defendant a sentence of probation. Defendant was sentenced to 30 days in jail. Outside the defendant’s presence the sentencing judge signed an order imposing a five-year probationary period and defendant agreed to the order by signing it in jail:

​

While a court possesses the inherent authority to correct a mistake or error in a criminal defendant’s sentence … , the process by which a court corrects such an error is by resentencing the defendant … , which must be done in the defendant’s presence (see CPL 380.40 [1]). We thus conclude that the Judge erred in imposing an additional component to the sentence outside of petitioner’s presence …

We further conclude that petitioner cannot now be resentenced. It is well settled that, “where a defendant is released from custody and returns to the community after serving the period of incarceration that was ordered by the sentencing court, and the time to appeal the sentence has expired or the appeal has been finally determined,’ a legitimate expectation of the original sentence’s finality arises and double jeopardy precludes the modification of that sentence to include a period of” probation … . Here, ,,, petitioner has completed serving the period of incarceration and has been released from custody. Petitioner did not file a notice of appeal, and the time within which to do so has expired … . Although petitioner, as of this writing, could still move for an extension of time to take an appeal … , he cannot be forced to do so. We thus conclude that petitioner’s sentence is “beyond the court’s authority,” and an additional component to that sentence cannot be imposed … . Matter of Brandon v Doran, 2017 NY Slip Op 03371, 4th Dept 4-28-17

 

CRIMINAL LAW (JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/CIVIL PROCEDURE (ARTICLE 78, PROHIBITION, CRIMINAL LAW, JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/JUDGES (ARTICLE 78, PROHIBITION, CRIMINAL LAW, JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/DOUBLE JEOPARDY (JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/SENTENCING (JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)

/ , ,

HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED.

The Fourth Department determined defendant was entitled to a hearing on his motion to vacate the judgment of conviction. There was hearsay evidence that a third party committed the murder and a hearing was necessary to determine the reliability of the hearsay. In addition, a hearing was required to determine whether defense counsel was ineffective in failing to investigate evidence that a third party committed the murder:

​

Here, … information was received following defendant’s conviction that a third party had allegedly confessed to the murder, and there are questions of fact whether the statements of that third party would have been admissible at trial as declarations against penal interest … . Moreover, … “where, as here, the declarations exculpate the defendant, they are subject to a more lenient standard, and will be found sufficient if [the supportive evidence] establish[es] a reasonable possibility that the statement might be true . . . That is because [d]epriving a defendant of the opportunity to offer into evidence [at trial] another person’s admission to the crime with which he or she has been charged, even though that admission may . . . be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . We thus conclude that the court should have conducted a hearing to determine, first, whether there is “competent evidence independent of the declaration to assure its trustworthiness and reliability” … and, second, whether the witness who heard the third party’s declaration is both available to testify and credible in his or her testimony … .

We further conclude that defendant is entitled to a hearing on his claims that defense counsel was ineffective for failing to investigate potentially exculpatory information. Before trial, a witness informed police that two identified individuals had told the witness that the third party had committed the murder. “A defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses . . . Consequently, the failure to investigate witnesses may amount to ineffective assistance of counsel” … . People v Davis, 2017 NY Slip Op 03375, 4th Dept 4-28-17

 

CRIMINAL LAW (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/VACATE CONVICTION, MOTION TO (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/ATTORNEYS (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/EVIDENCE (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/INEFFECTIVE ASSISTANCE (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/HEARSAY (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/THIRD PARTY CULPABILITY (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)

/ , ,

DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Fourth Department, over a two justice dissent, affirmed defendant’s conviction and sentence. The dissenters argued the sentence for this adolescent offender was harsh and excessive. The defense attorney allowed in evidence without objection statements made by a codefendant which implicated defendant, in violation of the Bruton rule. In addition, defense counsel did not move for a severance. The Fourth Department determined the waiver of the Bruton objection and defense counsel’s decision not to move to sever defendant’s trial were strategic decisions and did not constitute ineffective assistance:

​

While we agree with defendant that the admission of those statements violated Bruton and that Supreme Court’s curative instruction did not alleviate the prejudice … , we consider defense counsel’s strategic decisions to proceed with a joint trial and to consent to the admission of the codefendant’s statements to constitute a waiver of any Bruton violation … . Indeed, when the codefendant’s statements were offered in evidence, defense counsel specifically stated that he had “[n]o objection” to their admission in evidence. * * *

​

It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . Indeed, it “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for defense counsel’s allegedly deficient conduct … . Here, defense counsel specifically stated on the record that he made a decision for strategic reasons, and we conclude that defendant has not established that counsel’s strategy “was inconsistent with the actions of a reasonably competent attorney” … . People v Howie, 2017 NY Slip Op 03298, 4th Dept 4-28-17

CRIMINAL LAW (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/BRUTON RULE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/SEVERANCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

/ ,

SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION.

The Fourth Department, reversing Supreme Court, over a concurrence and a two-justice dissent, determined the action by the respondent school district (re: terminating certain health insurance available to retirees) was not quasi-legislative. Therefore the four-month statute of limitations for petitioners’ Article 78 contesting the school district’s action did not start to run upon the mailing of the undated notification letter. The respondents, therefore, did not demonstrate the Article 78 proceeding was barred by the statute of limitations:

​

A quasi-legislative-type administrative determination is one having an impact far beyond the immediate parties at the administrative stage… . Thus, where a quasi-legislative determination is challenged, “actual notice of the challenged determination is not required in order to start the statute of limitations clock” … . The policy underlying the rule is that actual notice to the general public is not practicable … . Instead, the statute of limitations begins to run once the administrative agency’s quasi-legislative determination of the issue becomes “readily ascertainable” to the complaining party… .

On the other hand, where the public at large is not impacted by a determination, actual notice, commonly in the form of receipt of a letter or other writing containing the final and binding determination, is required to commence the statute of limitations … . * * *

​

… [I]nasmuch as respondents, in our view, failed to meet their burden to establish when the four-month statute of limitations commenced, the burden did not shift to petitioners to establish any particular date of individual receipt of the undated letter. In any event, respondents failed to establish any dates of receipt by petitioners in their moving papers. Matter of Knavel v West Seneca Cent. Sch. Dist., 2017 NY Slip Op 03416, 4th Dept 4-28-17

 

ADMINISTRATIVE LAW (SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/QUASI-LEGISLATIVE ACTION (ADMINISTRATIVE LAW, SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/CIVIL PROCEDURE (ARTICLE 78, STATUTE OF LIMITATIONS, SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/ARTICLE 78 (STATUTE OF LIMITATIONS, (SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/STATUTE OF LIMITATIONS (ARTICLE 78, SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)

/

DESCRIPTION OF CLOTHES WORN BY THE SUSPECT DID NOT MATCH THE CLOTHES WORN BY THE MAN OBSERVED BY THE POLICE, THE STOP OF THE CAR THE MAN GOT INTO WAS NOT JUSTIFIED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY, SEIZED WEAPONS SHOULD HAVE BEEN SUPPRESSED.

The Fourth Department, reversing defendant’s conviction, determined the stop of defendant’s car was not supported by reasonable suspicion and the weapons seized should have been suppressed. The officer stopped the car after he saw an Hispanic man with tattoos on his neck get into the car. The shooting suspect the police were looking for at the time of the stop was an Hispanic man with tattoos on his neck. However, the clothing worn by the man who got into the car did not come close to matching the clothes the shooting suspect was said to be wearing. It turned out that the shooting suspect was also in the stopped car:

​

… [T]he inconsistencies between the suspect’s clothing as described by the complainant and the clothing worn by the man who walked past the officer on North Goodman Street rendered the officer’s suspicion that the man was the suspect less than reasonable… . Contrary to the People’s contention, moreover, we conclude that the man’s conduct in staring straight ahead as he walked among the police cars was “innocuous and readily susceptible of an innocent interpretation” and, as such, did not generate a reasonable suspicion of criminality … .

Given that the stop of defendant’s vehicle was not supported by a reasonable suspicion of criminality, the officer’s observation of the actual suspect in the front seat with a weapon in his waistband was “the unattenuated by-product of the [illegal] stop” …  and, inasmuch as the disposal of the weapons during the ensuing chase was precipitated by that illegality, the weapons should have been suppressed … . In addition, because our determination results in the suppression of all evidence supporting the crimes charged, the indictment must be dismissed … . People v Lopez, 2017 NY Slip Op 03327, 4th Dept 4-28-17

 

CRIMINAL LAW (DESCRIPTION OF CLOTHES WORN BY THE SUSPECT DID NOT MATCH THE CLOTHES WORN BY THE MAN OBSERVED BY THE POLICE, THE STOP OF THE CAR THE MAN GOT INTO WAS NOT JUSTIFIED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY, SEIZED WEAPONS SHOULD HAVE BEEN SUPPRESSED)/STREET STOPS  (DESCRIPTION OF CLOTHES WORN BY THE SUSPECT DID NOT MATCH THE CLOTHES WORN BY THE MAN OBSERVED BY THE POLICE, THE STOP OF THE CAR THE MAN GOT INTO WAS NOT JUSTIFIED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY, SEIZED WEAPONS SHOULD HAVE BEEN SUPPRESSED/SUPPRESS, MOTION TO (DESCRIPTION OF CLOTHES WORN BY THE SUSPECT DID NOT MATCH THE CLOTHES WORN BY THE MAN OBSERVED BY THE POLICE, THE STOP OF THE CAR THE MAN GOT INTO WAS NOT JUSTIFIED BY REASONABLE SUSPICION OF CRIMINAL ACTIVITY, SEIZED WEAPONS SHOULD HAVE BEEN SUPPRESSED)

/ , ,

THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE, AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION.

The Fourth Department reversed defendant’s conviction for two reasons: (1) the trial judge acceded to defendant’s request that the jury not be instructed on a lesser included offense, and (2) the trial judge, in light of defendant’s behavior during the trial, should have ordered a competency examination:

​

We agree with defendant, however, that he was denied his right to counsel when County Court permitted him, rather than defense counsel, to decide whether to request a jury charge on a lesser included offense. “It is well established that a defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case’ such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal’ ” … . “[D]efense counsel has ultimate decision-making authority over matters of strategy and trial tactics, such as whether to seek a jury charge on a lesser included offense” … . Here, defense counsel requested a charge on the lesser included offense of criminal trespass. After defendant stated that he did not want such a charge, the court noted that defendant’s consent was not required. Nevertheless, defense counsel stated that he was not requesting the charge based on defendant’s decision not to follow his advice. Although defense counsel unequivocally and repeatedly stated that the charge was in defendant’s best interest, and indicated that defendant was declining the charge against defense counsel’s advice, the court abided defendant’s choice and thus “denied [defendant] the expert judgment of counsel to which the Sixth Amendment entitles him” … . …

​

Although a defendant is presumed to be competent … , whenever a court has a ” reasonable ground for believing that a defendant is in such state of idiocy, imbecility or insanity that he is incapable of understanding the charge, indictment or proceedings or of making his defense, it is the duty of the court to direct him to be examined in these respects’ ” … . Here, in light of the nature and frequency of defendant’s outbursts, and the People’s expressed concern about defendant’s competency prior to trial, we conclude that the court abused its discretion in failing to insure that defendant was competent to stand trial … . People v Minckler, 2017 NY Slip Op 03311, 4th Dept 4-28-17

 

CRIMINAL LAW (THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/ATTORNEYS (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/LESSER INCLUDED OFFENSE (THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/JURY INSTRUCTIONS (CRIMINAL LAW, LESSER INCLUDED OFFENSE, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/RIGHT TO COUNSEL (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)/COMPETENCY EXAMINATION (CRIMINAL LAW, THE TRIAL JUDGE SHOULD NOT HAVE ACCEDED TO DEFENDANT’S REQUEST THAT THE JURY NOT BE INSTRUCTED ON A LESSER INCLUDED OFFENSE AND, BASED UPON DEFENDANT’S BEHAVIOR, THE TRIAL JUDGE SHOULD HAVE ORDERED A COMPETENCY EXAMINATION)

/

JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY, NEW TRIAL ORDERED.

The Fourth Department, reversing defendant’s conviction, determined the burglary jury instruction was flawed. Defendant allowed her brother into the home where defendant resided and her brother assaulted a resident of the home in the resident’s bedroom. The jury instruction did not make clear the definitions of a building or unit as those terms are used in the burglary statute:

​

A person is guilty of burglary in the first degree, in pertinent part, when he or she “knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein” (Penal Law § 140.30 [2]). ” Dwelling’ means a building which is usually occupied by a person lodging therein at night” (§ 140.00 [3]), and “the definition of building’ includes the following: Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building’ ” … .

Here, the court instructed the jurors that a “dwelling is a building which is usually occupied by a person lodging therein at night. A bedroom in a home, where there is more than one tenant, may be considered independent of the rest of the house and may be considered a separate dwelling within a building.” The court, however, failed to include the part of the definition of building that would require the jury to determine whether the house at issue consisted of “two or more units” and whether the bedroom at issue was a unit that was “separately secured or occupied” (Penal Law § 140.00 [2]). Consequently, “given the omission of the definition of [ unit’] and/or [ separately secured or occupied,’] the instruction did not adequately convey the meaning of [ building’] to the jury and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met” … . People v Pritchard, 2017 NY Slip Op 03287, 4th Dept 4-28-17

 

CRIMINAL LAW (JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY, NEW TRIAL ORDERED)/BURGLARY (JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY, NEW TRIAL ORDERED)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy