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#369 Third Department Caselaw Round-Up for May 10, 2012, Part 1 of 4

April 29, 2013

369 Post 05-10-12, Part 1 Third Department May.pngThe first case is short and sweet. Here's an idea: if you don't want to be found in willful violation of an order of child support, then it is probably best not to admit to being in arrears on the record. D'oh!

The second case involves our old friend Harmless Error.


369 Post-2 Albany County.pngCase #249
#513262
Thomas v. Sylvester
Albany Family-Duggan
Issues: Child Support; Willful Violations of Orders
Cited statutes: FCA Art. 4
Affirmed

The parties are the parents of one child, of whom, presumably, the mother has custody. The father was required, per an order of support, to pay $125.00 per week in child support, almost $8.00 per week for health insurance, and $25.00 per week in arrears. So, what does the father do? That's right, he flouts the court ordered-support.

The mother thereafter files a petition alleging that the father was in willful violation of the order of support, and was in arrears to the tune of $4,000.00. After a hearing the support magistrate found the father to be in willful violation of the support order and family court later confirmed this finding as well, determining that he father had failed to pay over $7,500.00 in child support.

The father appealed.

The father admitted that he was in arrears on the record, which itself "constituted prima facie evidence that he willfully violated the order, and the burden then shifted to him to demonstrate his inability to pay". However, the father "presented no evidence, other than unsupported testimony, that he lacked the resources to pay or had made efforts to find and maintain full-time employment".


Case #250
#103703
People v. Perry
Albany Supreme-Lamont
Issues: Criminal Charges
Cited statutes: PL ยง110.00, 120.00, 140.25
Affirmed

We have 4 footnotes in this case. Read them, as they are very helpful in providing context to this case.

The defendant banged on the door of the victim's apartment late one night and "told the victim that he wanted to speak with her about something that happened previously and demanded that she let him enter her apartment". To the victim's credit, she refused the defendant entry and told the defendant to leave (though she didn't call the police). The defendant continued to argue through the victim's door and then broke the two locks and damaged the door frame, forcing his way into the victim's apartment.

The defendant then threatened the defendant (who was there with her infant daughter), punched her in the back of the head, and then held the victim in a chokehold. The defendant was subsequently arrested.

After a jury trial, the defendant was convicted of burglary 2nd and attempted assault 3rd. Of course, the defendant appealed.

These are the defendant's arguments on appeal:
1. The convictions were against the weight of the evidence;
2. The court erred in allowing the People to introduce evidence of the defendant's gang affiliation;
3. The court erred in allowing the People to make various statements in summation; and
4. The court was not impartial.

While the Third Department was unpersuaded, it does agree with the defendant with regard to his second argument. However, it was deemed to be harmless error.