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#280 Third Department Caselaw Round-Up for January 12, 2012, Part 8 of 14

136 Post 01-12-12, Part 8 Third Department January.pngFor your reading pleasure: a run-of-the-mill neglect proceeding from Otsego and a very interesting DWI case from Rensselaer.

29-29 Post Otsego County.pngCase #116 #511685
Matter of Anton AA., ___ A.D.3d ___, ___ N.Y.S.2d ___ Otsego Family – Lambert Issues: Abuse; Criminal Charges; Developmental Disabilities; Domestic Violence; Evidence; Imminent Risk; Mental Illness; Neglect Cited statutes: FCA Art.10 Affirmed

Three days after the mother gave birth to her son, DSS removed the newborn, pursuant to FCA §1021 (temporary removal with consent; however, the nature of this case makes it seem as if it were instead a FCA §1024 removal – emergency removal without court order). DSS then filed a neglect petition against the mother. Following a trial, the newborn was deemed to be neglected and the mother appealed, arguing that there was insufficient evidence to support the court’s finding of neglect.

Given the fact that the child is a newborn, and therefore extremely vulnerable under even the best of circumstances, the trial court considered the entire context of the case, which included some alarming evidence. The mother was found to be developmentally disabled and suffering from a mental illness for which the mother had medication but which she refused to take. In the weeks both before and after the newborn’s birth, the mother had been living in a motel, without any winter clothing for the child. She was later evicted and found living at a campground.

This, on its face, should have been enough for the trial court to make its determination, and for the Third Department to affirm it. Remember: the child was only three (3) days old at the time of the removal. However, there was much more.

The mother had previously been adjudicated to have neglected a prior child who was then only a month-old infant. The mother had failed to protect the prior child from her boyfriend, who had abused the child, resulting in the child sustaining a broken femur! The mother refused parenting counseling and continued to engage in a pattern of shacking up with questionable men. Furthermore, there was evidence of ongoing domestic violence with the newborn’s putative father. Said father apparently attacked the mother by grabbing her by the neck, throwing her down, and physically assaulting her – all while she was pregnant – which resulted in his arrest. Yet, the mother continued to remain involved with the abusive father and attempted to minimize his conduct.

Frankly, the court did this woman a favor because these circumstances could be a recipe for disaster for the health – and life – of a newborn. Better a removal and a neglect proceeding than an indictment on a murder or manslaughter charge.

29-6 Post Rensselaer County.pngCase #117 #103379
People v. Teatom, ___ A.D.3d ___, ___ N.Y.S.2d ___ Rensselaer County – Ceresia Issues: Criminal Charges Cited statutes: CPL §270.35 Reversed

Here’s an interesting case …

The defendant was convicted of driving while intoxicated, and other offenses, for which he was sentenced to one to three years in prison, and from which he appealed.

The defendant was charged with two counts of DWI, and traffic infractions, after he drove off a road and hit a telephone pole. A witness saw the defendant staggering away from the scene of the accident, appearing drunk, with slurred speech, glossy eyes, and in a state of confusion. A state trooper found a half-empty bottle of vodka in the defendant’s crashed car, but the defendant was gone.

Another state trooper found the defendant at his home, whereupon the defendant admitted to having had one or two beers at a party before the accident – but four more beers and half a bottle of whiskey after the accident, once he arrived home (I just love the way this man thinks!)! Furthermore, the defendant claimed that the reason he was found staggering in the road was due to the shock of being whacked in the head by the force of the air bag releasing upon impact (hilarious and, actually, a pretty good excuse; having had this happen to me (a motor vehicle accident, not a DWI!), I must confess there is quite a bit of truth to it!).

Well, the jury didn’t buy any of it, and neither did the Third Department.

So why the reversal? Here’s why: the trial court (and prosecution) failed to ensure that the defendant’s consent to the substitution of a juror after deliberations had commenced was in writing and signed by the defendant in open court, as is required by both CPL §270.35 and the New York Constitution. More to the point: nothing in the record on appeal illustrated that the defendant’s required written consent was actually signed in open court. Thus, it must be presumed that it was not so signed and, therefore, the statute was not strictly complied with and the defendant’s constitutional right to a fair trial was therefore infringed. Tricky, tricky!

The result? A reversal and the defendant gets a new trial.

But it gets better: the defendant himself not only consented to the substitution, but so did his attorney. Better yet, both the defendant and his attorney executed a written consent to the substitution! The best part? The defendant is the one who actually requested the substitution!!!!! Isn’t that great!? The problem? The problem was that the court never bothered to note, for the record, that this action was being done in open court.

Do not pass go; do not collect two hundred dollars; go directly to a new trial. Bada-BING!

Caselaw Round-Up Score Card:

Affirmed: 77 (65.81%)
Decision Withheld: 6 (5.13%)
Dismissed: 8 (6.84%)
Modified: 9 (7.69%)
Reversed: 17 (14.53%)

Total: 117