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53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS.

The Fourth Department determined a 53-month delay between the incident and indictment did not constitute a denial of due process. Defendant was charged with burglary, robbery and criminal possession of a weapon. He was convicted of criminal possession of a weapon. The court explained the analytical criteria re: speedy trial/due process and went through the facts in support of each of the criteria:

“A defendant’s right to a speedy trial is guaranteed by both the Constitution … and by statute … . A defendant may also challenge, on due process grounds, preindictment delay …, and “the factors utilized to determine if a defendant’s rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution” … . The inquiry involves weighing the factors enunciated in Taranovich: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” (Taranovich, 37 NY2d at 445…). “Generally when there has been a protracted delay, certainly over a period of years, the burden is on the prosecution to establish good cause” … . People v Johnson, 2015 NY Slip Op 09449, 4th Dept 12-23-15

CRIMINAL LAW (53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS)/SPEEDY TRIAL (53-MONTH PRE-INDICTMENT DELAY DID NOT DENY DEFENDANT DUE PROCESS)/PRE-INDICTMENT DELAY (53-MONTH DELAY DID NOT DENY DEFENDANT DUE PROCESS)

FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A NOTE FROM THE JURY REQUIRED REVERSAL.

The Fourth Department determined the trial judge’s failure to apprise counsel of the specific, substantive contents of a jury note requesting a readback of testimony required reversal (in the absence of preservation):

As the court brought the jury into the courtroom to respond to the first two notes, the jury gave a third note to the court. The court told the jury that it would respond to the first two notes at that time, and would then discuss the issue raised in the third note with counsel after sending the jury back to the jury room. The court stated that the “third note [had] not yet [been] shown to counsel nor have we had an opportunity to discuss it.” The record further reflects that the jury resumed its deliberations after the court provided requested testimony and instruction in response to the first two notes, and then rendered a verdict of guilty. The third note, which is included in the record, indicates that the jury was seeking the testimony of a particular witness on a specific topic, but there is nothing in the record indicating that the note was shown to counsel, or that it was read into the record before the jury rendered its verdict. Where, as here, “the record fails to show that defense counsel was apprised of the specific, substantive contents of the note . . . [,] preservation is not required” … , and we conclude that the “[c]ourt committed reversible error by violating the core requirements of CPL 310.30 in failing to advise counsel on the record of the contents of a substantive jury note before accepting a verdict” … . People v Brink, 2015 NY Slip Op 09450, 4th Dept 12-23-15

CRIMINAL LAW (FAILURE TO APPRISE COUNSEL OF JURY NOTE CONTENTS REQUIRED REVERSAL)/JURY NOTE (FAILURE TO APPRISE COUNSEL OF CONTENTS REQUIRED REVERSAL)/ORAMA ERROR (FAILURE TO APPRISE COUNSEL OF CONTENTS OF JURY NOTE REQUIRED REVERSAL IN THE ABSENCE OF PRESERVATION)

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IN THIS VISITATION-MODIFICATION PROCEEDING, DAUGHTER’S OUT-OF-COURT STATEMENTS WERE NOT SUFFICIENTLY CORROBORATED.

The Fourth Department determined Family Court, in a visitation-modification proceeding, properly found that the daughter’s out-of-court statements about alleged sex abuse were not reliably corroborated:

“It is well settled that there is an exception to the hearsay rule in custody [and visitation] cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046 (a) (vi)’ . . . , where . . . the statements are corroborated” … . “Although the degree of corroboration [required] is low, a threshold of reliability’ must be met” … . “The repetition of an accusation does not corroborate a child’s prior statement’ . . . , although the reliability threshold may be satisfied by the testimony of an expert” … . “Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated . . . , and its findings must be accorded deference on appeal where . . . the . . . [c]ourt is primarily confronted with issues of credibility” … .

Here, there is no direct or physical evidence of abuse, and thus “the case turns almost entirely on issues of credibility” … . Although the mother correctly notes that some corroboration may be provided through the consistency of a child’s statements and that a child’s out-of-court statements may be corroborated by testimony regarding the child’s increased sexualized behavior … , the court determined here that the mother’s witnesses—who provided the corroborative testimony regarding the daughter’s purportedly consistent statements and sexualized behavior—were not credible. Matter of East v Giles, 2015 NY Slip Op 09466, 4th Dept 12-23-15

FAMILY LAW (CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/EVIDENCE (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/HEARSAY (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)

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SEARCH OF DEFENDANT’S JACKET, WHICH WAS NOT ON HIS PERSON, AFTER DEFENDANT WAS HANDCUFFED AND IN CUSTODY VIOLATED THE STATE CONSTITUTION.

The Fourth Department determined the search of the pockets of defendant’s jacket (which was not on his person) after defendant was handcuffed and in custody was illegal under the State Constitution and the drugs found in the pockets should have been suppressed. The court further found that the illegally-seized drugs presented as evidence at trial may have influenced the jury to find an “intent to sell” with respect to the remaining drug count. A new trial was ordered on the remaining count:

After securing the jacket, the officers replaced the handcuffs on defendant and escorted him to the rear seat of their patrol car. One of the officers placed the jacket on the floor of the front seat of the patrol car, where it remained while defendant was transported to the Public Safety Building. Defendant was taken to an interview room, and the jacket was searched in another room at the Public Safety Building. A variety of drugs was discovered in the jacket pockets. * * *

“Under the State Constitution, to justify a warrantless search incident to an arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest . . . The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . We conclude that, here, neither requirement is satisfied. At the time the jacket was searched, defendant was handcuffed in an interview room at the Public Safety Building. “[T]he jacket had been reduced to the exclusive control of the police[,] and there was no reasonable possibility that defendant could have reached it” … . Nor was there any exigency that would justify the warrantless search of the jacket in these circumstances … . People v Wilcox, 2015 NY Slip Op 09457, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/EVIDENCE (SEARCH OF DEFENDANT’S JACKET VIOLATED THE STATE CONSTITUTION)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)/SUPPRESSION (SEARCH OF DEFENDANT’S JACKET VIOLATED STATE CONSTITUTION)

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EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED; JUDGE FAILED TO ELICIT UNEQUIVOCAL ASSURANCES OF IMPARTIALITY FROM FIVE PROSPECTIVE JURORS; NOTHING CAN BE INFERRED FROM THE PROSPECTIVE JURORS’ COLLECTIVE SILENCE IN RESPONSE TO THE JUDGE’S QUESTION WHETHER THEY COULD BE FAIR.

The Fourth Department ordered a new trial after finding that defendant’s motion to suppress statements and evidence should have been granted. The police entered defendant’s apartment without permission. The People argued that the entry was proper under the so-called emergency exception to the warrant requirement. However, the facts indicated the police entered the apartment solely because of defendant’s refusal to open the door. The Fourth Department further noted that five prospective jurors should have been excused for cause because they all indicated not hearing from the defendant would be problematic for them. The judge explained that the defendant had no responsibility to put on any proof, but failed to elicit an unequivocal assurance from each of the jurors that they could render an impartial verdict. The judge simply asked all the jurors collectively whether they had a problem sitting as fair and impartial jurors and the jurors remained silent:

… [B]ased on our review of the record, we conclude that “the evidence at the suppression hearing [did] not establish that the police had reasonable grounds to believe that there [was] an emergency at hand and an immediate need for their assistance for the protection of life or property’ ” … . Indeed, the People did not present any evidence that the police observed anything unusual once they arrived at defendant’s apartment. Although the record indicates that defendant and the victim may have been previously involved in domestic disputes, both police officers testified at the suppression hearing that they did not have direct, personal knowledge of any previous domestic violence or any indication that defendant and the victim were engaged in a domestic dispute at the time they arrived at the apartment. The police officers testified only that they knew that defendant was inside the apartment but would not answer the door. In our view, such testimony is insufficient to support a determination that the “emergency exception” applied to justify the warrantless entry.

… Here, the record establishes that five out of the six prospective jurors clearly expressed concerns that not hearing from defendant or someone on behalf of defendant would affect, inter alia, their ability to be fair and impartial. In response, the court instructed the jury panel that defendant has no responsibility to put on any proof, that he may or may not call witnesses, that he may or may not take the witness stand, and that it is the prosecution’s burden to prove the elements of the crimes of which defendant is accused. The court then asked the jury panel whether anyone had “a problem sitting as a fair and impartial juror in this case?” The five prospective jurors at issue remained silent.

In our view, the statements of the five prospective jurors cast serious doubt on their ability to render an impartial verdict … . The court erred in not obtaining thereafter an “unequivocal assurance . . . from each of those potential jurors” to the effect that he or she could render an impartial verdict … . Furthermore, “we can infer nothing from the [collective] silence of the challenged jurors” … . People v Casillas, 2015 NY Slip Op 09454, 4th Dept 12-23-15

CRIMINAL LAW (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED)/EVIDENCE (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED, SUPPRESSION SHOULD HAVE BEEN GRANTED)/SEARCH AND SEIZURE (EMERGENCY EXCEPTION TO WARRANT REQUIREMENT IMPROPERLY APPLIED, SUPPRESSION SHOULD HAVE BEEN GRANTED)/EMERGENCY EXCEPTION TO WARRANT REQUIREMENT (MISAPPLIED)/SUPPRESSION (EMERGENCEY EXCEPTION TO WARRANT REQUIREMENT MISAPPLIED)/CRIMINAL LAW (JUDGE FAILED TO ELICIT ASSURANCES OF IMPARTIALITY)/JURIES (JUDGE FAILED TO ELICIT ASSURANCES OF IMPARTIALITY)

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SEARCH INSIDE DEFENDANT’S UNDERWEAR WAS AN ILLEGAL STRIP SEARCH.

The Fourth Department, reversing County Court, determined what amounted to a strip search at a traffic stop was illegal. The officer searched defendant’s underwear and seized drugs which were inside defendant’s underwear:

… [B]ecause the officer intended to transport defendant to the police station to charge him with the traffic infractions, he was justified in conducting a pat search for weapons before placing defendant in the patrol vehicle … . We note that a person’s underwear, “unlike a waistband or even a jacket pocket, is not a common sanctuary for weapons’ ” …  and, in any event, the officer did not pat the outside of defendant’s clothing to determine whether defendant had secreted a weapon in his underwear after defendant leaned forward. Instead, he conducted a strip search by engaging in a visual inspection of the private area of defendant’s body … . …  We conclude that a visual inspection of the private area of defendant’s body on a city street was not based upon reasonable suspicion that defendant was concealing a weapon or evidence underneath his clothing… . People v Smith, 2015 NY Slip Op 09517, 4th Dept 12-23-15

CRIMINAL LAW (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SEARCH AND SEIZURE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/EVIDENCE (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)/SUPPRESSION (SEARCH OF DEFENDANT’S UNDERWEAR AT TRAFFIC STOP ILLEGAL)

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Erroneous Admission of Evidence of Specific Prior Crimes and Bad Acts Required Reversal

The Fourth Department determined evidence of prior crimes and bad acts on the part of the defendant (which took place just prior to defendant’s arrest) were properly admitted to provide background information explaining the actions taken by the police. But other evidence of defendant’s prior crimes and bad acts should not have been admitted and the errors warranted a new trial:

… [A]lthough the court properly permitted the People to present evidence of the fact that he was on parole at the time of his arrest, the court erred in permitting the People to detail that he was on parole for a conviction of attempted criminal possession of a controlled substance in the third degree. The specific crime of which defendant was convicted does not constitute necessary background information, and it does not fit within any other recognized exception to the Molineux rule, i.e., motive, intent, identity, absence of mistake, or common plan or scheme … .

… [T]he court erred in ruling that defense counsel [in cross-examining a police officer] opened the door to the admission of additional evidence of uncharged crimes and prior bad acts that the court had initially precluded by an earlier determination. * * *

…[D]efense counsel did not challenge on cross-examination the officer’s credibility on the issue whether such prior interactions with defendant took place, thereby permitting the officer to fully explain the nature of the interactions… . People v Dowdell, 2015 NY Slip Op 08567, 4th Dept 11-20-15

 

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New Relicensing Regulations Can Be Applied Retroactively (Re: Alcohol-Related Driving Convictions)

The Fourth Department, reversing Supreme Court, determined the Commissioner of Motor Vehicles had the power to retroactively apply regulations re: the relicensing of persons with three or more alcohol-related driving convictions:

… [T]here is no merit to petitioner’s contention that the Commissioner erred in retroactively applying the amended regulations to his application … . “[P]etitioner’s driver’s license is not generally viewed as a vested right, but merely a personal privilege subject to reasonable restrictions and revocation by [the Commissioner] under her discretionary powers . . . Thus, [the Commissioner] remained free to apply her most recent regulations when exercising her discretion in deciding whether to grant or deny petitioner’s application for relicensing. This is especially so in light of the rational, seven-month moratorium placed on all similarly-situated applicants for relicensing— i.e., persons with three or more alcohol-related driving convictions” … . Matter of Underwood v Fiala, 2015 NY Slip Op 08545, 4th Dept 11-20-15

 

Trustee Was Not Negligent In Its Management of Three Trusts; Surrogate’s Court’s Findings Reversed

Reversing Surrogate’s Court, the Fourth Department determined the trustee of three trusts initially funded by Kodak stock was not negligent in its management of the trusts. The Fourth Department analyzed each trust using the relevant investment standards:

We conclude that the Surrogate erred in sustaining the objections to the three accounts because objectants failed to sustain their burden of proving that petitioner failed to diversify the trusts prudently within a reasonable time, and also failed to establish a reasonable date from which a surcharge could be calculated. As we explained in Knox (98 AD3d at 308-309), petitioner was subject to three separate standards of care as trustee: “[f]rom [1966] until 1970, the standard was the common-law rule, which provided that the trustee is bound to employ such diligence and such prudence in the care and management, as in general, prudent [persons] of discretion and intelligence in such matters, employ in their own like affairs’ . . . From 1970 to 1995, the standard of care was the prudent person rule established in EPTL 11-2.2 (a) (1), which provided that [a] fiduciary holding funds for investment may invest the same in such securities as would be acquired by prudent [persons] of discretion and intelligence in such matters who are seeking a reasonable income and preservation of their capital’ . . . Effective, January 1, 1995, the Prudent Investor Act (EPTL 11-2.3 [L 1994, ch 609, § 1]) created a new standard of care by providing that [a] trustee shall exercise reasonable care, skill and caution to make and implement investment and management decisions as a prudent investor would for the entire portfolio, taking into account the purposes and terms and provisions of the governing instrument’ (EPTL 11-2.3 [b] [2]). The statute lists various elements of the prudent investor standard, including: pursuing an overall investment strategy; considering numerous factors pertaining to the overall portfolio including, e.g., general economic conditions; and diversifying assets (see EPTL 11-2.3 [b] [3] [A]-[C]).” Notably, the “Prudent Investor Act requires a trustee to diversify assets unless the trustee reasonably determines that it is in the interests of the beneficiaries not to diversify’ ” (Janes, 90 NY2d at 49 n, quoting EPTL 11-2.3 [b] [3] [C]; see Knox, 98 AD3d at 310). Matter of Jp Morgan Chase Bank, N.A., 2015 NY Slip Op 08533, 4th Dept 11-20-15

 

Extraordinary Circumstances Warranted Award of Custody to Non-Parent

The Fourth Department, over a two-justice dissent, determined Family Court properly awarded custody of the child to the child’s half brother:

It is well-settled that, “as between a parent and nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” … . Here, the evidence established that the mother and the father changed residences frequently over a period of 18 months, and they were evicted from one residence and were homeless for several months, living in a tent or their vehicle. The child changed schools five times in four school districts over that same time period and, with each change in school, the child missed at least several days and sometimes several weeks of school. Indeed, we note that “[u]nrebutted evidence of excessive school absences [is] sufficient to establish . . . educational neglect” … . The evidence also supports the court’s conclusion that the child had poor hygiene. Thus, the record establishes that the mother and the father have exhibited “behavior evincing utter indifference and irresponsibility,” and the court therefore properly concluded that extraordinary circumstances exist…  .

It is well settled that, “once extraordinary circumstances are found, the court must then make the disposition that is in the best interest[s] of the child” … , and we agree with the court that the child’s best interests are served by awarding petitioner custody of the child with visitation to the mother and the father… . Matter of Stent v Schwartz, 2015 NY Slip Op 08535, 4th Dept 11-20-15

 

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