Court of Appeals: 2009 Term (Updated)

Jeremy Almeter
Greene Co ADA Robert R. Zickl
Reversed, 6/24/09
In local criminal court trial on informations charging defendant with misdemeanor assault and trespass, a violation, trial court’s announcement “after the defense case hadnearly concluded [and]while discussing the jurycharge” that it is its “practice, if I have violation charges as well as misdemeanor charges... to have the jury handle statutorily their duty, which is misdemeanor verdict, and have the violation charge handled by this Court, decided by this Court" violated C.P.L. § 340.40. “[I]f, contrary to reasonable expectation, two trials were to be simultaneously held before different fact-finders, the court was obliged to inform defendant and his counsel of this unique mode of proceeding from the outset...While the court may have deemed this particular procedure economical, the economy was a false one where the defendant was not timely advised that his charges were to be tried by separate fact finders.”


Noel Marte
Kings Co ADA Camille O'Hara Gillespie
Affirmed, 6/11/09
Evidence of an “unnecessarily suggestive”identification of a criminal suspect is not subject to suppression per se, in the same as it would be for a “police-arranged” suggestive identification since “where the need to regulate police conduct does not justify an exclusionary rule, our system relies on juries to assess the reliability of eyewitnesses, aided by cross examination,by the arguments of counsel, and by whatever other evidence supports or contradicts the witnesses' testimony.”

Ingvue Buchanan
Chautauqua Co ADA Lynn S. Hodgens
Reversed, 6/30/09
Though defendant's constitutional right to due process was not violated when the trial court required him to wear a stun belt under his clothing during his murder trial, “as a matter of New York law... it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason [based on a consideration of].the nature of the charged offense, the defendant's history and other relevant factors.” While it explicitly holds that its decision is no based on a “constitutional issue,” the Court does not explain the source of the “New York law” to which it is referring nor the basis for its determination of what “New York law” requires.

The following do not appear on the original list and have been added since the last update:

James McGrantham
Kings Co ADA Rhea A. Grob
A.D. order reversing dismissal of indictment, modified, SSM, 6/25/09
Defendant who was sober and not speeding, but made a U-turn across the three westbound lanes of traffic after missing an exit ramp on the Belt Parkway resulting in the death of a motorcyclist who hit defendant’s car, was properly indicted for reckless driving but not criminally negligent homicide since his acts, while “not wise,” did “not rise to the level of moral blameworthiness required” under the homicide statute.


Victor Gomez (People’s Appeal)
NY Co ADA Jung Park
Affirmed, 6/30/09
Since “the People offered no evidence that the police officers conducted ... search in accordance with” a standardized, written police department protocol” it could not be sustained on the basis of the inventory search exception “[e]ven assuming it was reasonable for the officers to search the immediate area of the passenger compartment of defendant’s car for contraband to ensure the safety of the officer driving the car back to the police precinct.” An inventory search must be established by evidence that “(1) thesearch, in accordance with the “standardized procedure,” is designed to produce an inventory and (2) the search results are fully recorded in a usable format.”


Jermar McDaniel
Bronx Co ADA Kayonia L. Whetstone
Affirmed, SSM, 9/1/09
Ineffectiveness claim is meritless where failure “to seek dismissal of the robbery in the first degree charge for insufficient evidence would not have resulted in a dismissal of that charge” and counsel’s representation in seen in its totality was meaningful.

Peter J. Maliszewski
Oswego Co ADA Michael G. Cianfarano
Affirmed, SSM, 9/3/09
Defendant, who pled guilty wand was sentenced pursuant to a plea agreement held to be illegal was offered the opportunity to withdraw his plea, but was not entitled to any lesser sentence since the withdrawal of his guilty plea would have “put the defendant in the position he was in prior to admitting guilt.”

Raheem Mayo
NY Co ADA Justin K. Wechsler
Affirmed, SSM, 9/15/09
Evidence that “when the police unexpectedly arrived at theapartment, defendant was getting dressed in the apartment's small8' by 10' bedroom; that his 18-month-old child was present in theapartment; that a plastic bag containing 47 small glassine bagscontaining crack/cocaine was in plain view on the bedroom dresser; that the additional 96 glassine bags containingcrack/cocaine recovered from the bedroom floor were packaged similarly to the drugs recovered from the dresser; and that defendant was in close proximity to the drugs on both the dresser and the floor” was sufficient for the “the grand jury [to] have reasonably inferred that the drugs did not belong to the apartment's lessee by virtue of the fact that she volunteered the location of the additional drugs in a manner that prevented the defendant and his accomplice from overhearing” adequately establishing defendant’s “dominion and control over the contraband.”

Shannon M. Kolupa
Oneida Co ADA Steven G. Cox
Affirmed, SSM, 9/22/09
Defendant’s failure to “renew [his] motion to dismiss at the close of his proof or specifically argue that there was not sufficient corroboration of the victim's statements” renders that issue unpreserved for review in the Court of Appeals.

Quentin Abney
Gregory Allen
NY Co ADA Patrick J. Hynes (Abney)
Queens Co ADA Daniel Bresnahan (Allen)
Abney reversed, Allen affirmed, 10/27/09
Under People v LeGrand, 8 N.Y.3d 449 (2007), defendant must be permitted to present expert witness testimony to try to impeach the identification of defendant when less than a hour after being robbed at knife point, 13 year old victim identifies defendant from a photo array and 20 days later from a lineup, even though defendant’s proffered alibi was signficantly undermined during cross-examination of his witnesses, since by then "it was clear that there was no evidence other than [the victim]'s identification to connect defendant to the crime, and she did not describe him as possessing any unusual or distinctive features or physical characteristics, but trial court was not required to permit such evidence when masked gunman was nonetheless identified by openings in the mask and by a victim’s familiarity with defendant from the neighborhood and defendant knew that the gunmen wore masks before he was told that fact since "the case did not depend exclusively on Bierd's eyewitness testimony."

J.W. Hardy, Jr.
Orleans Co DA Joseph V. Cardone
Affirmed, 10/15/09
When, after bail was set, defendant fled while handcuffed and waiting for clerk to prepare securing order, defendant escaped from custody under the terms of Penal Law § 205.10(2), even though in setting bail court did not orally commit defendant to the sheriff's custody and the statute requires that defendant be under “"restraint by a public servant pursuant to an authorized arrest or an order of a court."

Nasin Arafet
Schenectady County CADA Philip W. Mueller
Affirmed, 10/29/09
Evidence of hijackings in which defendant was allegedly involved wasproperly received as evidence in defendant’s trial for the theft of more than $1 million worth of copy machines, printers, and accessory equipment stolen when a cargo trailer was taken from a parking lot on the Thruway since it demonstrated the “[r]epeated commission of similar crimes with the same accomplice” and error in receiving evidence relevant only “to show that defendant was an experienced trailer thief” was harmless.

Guiseppe D'Alessandro
N.Y. County ADA Hilary Hassler
Reversed, 10/27/09
Appellate Division could not deny defendant’s coram nobis petition, filed nine years after the Appellate Division denied him the same relief, as if it were an unappealable motion for re-argument where the new motion "raised different and much more substantial arguments than those previously raised."

Rashad McNair
N.Y. County ADA Marc Krupnick
Affirmed, 10/29/09
Having not moved to withdraw his guilty plea, defendant did not preserve question of whether trial court’s inquiry as to whether plea allocution “negated the element of intent to defraud” under the forgery statute.

Miguel Alemany (SORA) (People’s Appeal)
N.Y. County Aaron Ginandes
Reversed, November 23, 2009
In evaluating whether "defendant's living situation was inappropriate” for SORA purposes, the hearing court "may assess points ... where there is clear and convincing evidence that the defendant is undomiciled and lacks any history of living in shelters or community ties."

Michael Brown
Queens County ADA William H. Branigan
Affirmed, 11/19/09
Medical examiner’s office file, which included DNA reports produced from the sexual assault evidence kit and oral swabs taken from the defendant used by a testifying medical examiner as the basis of her expert opinions, properly received in evidence as a business record, and counsel was not ineffective for not arguing that indictment filed almost ten years after the crime was not outside the statute of limitations since "there is no support for the notion that
defendant would have been identified at an earlier date as a result of ... additional information (had the police in fact known about it) and there was no evidence that police failed to act with 'reasonable diligence' in investigating this crime."


Everton Simms (People’s Appeal)
Kings County Lori Glachman
Affirmed, 12/1/09
Juror’s statement as jury was being polled that “it is my verdict, although I feel like I was pressured to make that decision” followed by her comment that she was “pressured by the fact that everyone is standing up, yelling at me, why can't you see it that way, why can't you see it that way? Everyone is yelling like that. After eight hours of that you have to give in” "was unsure enough to require the trial judge to inquire further" and, failing that, defendant's CPL 330.30 motion should have been granted, despite defendant's apparent failure to raise the issue before jury was discharged

Danny Colon
Anthony Ortiz
N.Y. County Patrick J. Hynes
Reversed, 11/19/09
Failure to disclose notes from her interviews with two witnesses who possessed potentially exculpatory information and the fact that prosecutor assisted in the relocation of a prosecution witness's grandparents as well as failure to correct the witness's testimony that, other than a guilty plea to disorderly conduct, he had not been promised any other benefit and summation comments which misstated the benefits the witness received requires a new trial since contrary to the findings of the Appellate Division, Court of Appeals "believe[s] that there is
a reasonable possibility that these errors affected the jury's
verdict."

Brian Henderson
Bronx County ADA Rither Alabre
Affirmed, November 23, 2009
Although victim of an assault of a prisoner at Riker’s Island, testified that defendant was not the one who attacked him evidence other evidence made out a legally sufficient case and summation comments suggesting victim was intimidated into testifying for the defendant were "a fair response to
defense counsel's closing argument, in which he asked, 'Why in a
room full of inmates, did not one inmate come forward to say that
[defendant] had anything to do with this?'"

Simon Samandarov
Queens County ADA Laura Ross
Affirmed, 11/24/09
Trial court acted within its discretion in denying, without a hearing, defendant’s motion to vacate conviction based on witness’ affidavit supporting claim that undisclosed notes were taken on one of the occasions he was interviewed prior to trial, even though subsequent affidavit from the same witness repudiated the claim since absent some evidence of "outside
influence" on the jurors, there was "no ground for impeaching their verdict" and while it was "theoretically possible that a hearing could show ... the existence of suppressed Rosario material, in the form of handwritten notes that everyone present at the interviews says never existed," trial court was permitted to find "this possibility too slim to justify the burden and expense of a hearing."

Matthew Sanchez
Larry Mynin
N.Y. County ADA Gina Mignola (Sanchez); N.Y. County CADA Mark Dwyer (Mynin)
Affirmed, 12/1/09
The requirements of the gang assault in the second degree statute that there be an “intent to cause physical injury to another person” and that defendant was “aided by two or more other persons actually present” are met even where the the persons who “aided” defendant did not share his intent to cause physical injury.

Collier Gillyard
N.Y. County ADA Britta Gilmore
Affirmed, November 23, 2009
Though evidence that, while awaiting trial at Riker’s Island, defendant was found in possession of a universal Smith and Wesson handcuff key in his pocket should not have been received as Molineux evidence at his trial on two separate counts of robbery both committed in part by the unlawful impersonation of a police officer, the error was harmless given the other evidence supporting defendant's conviction

Phillip Riback
Albany County ADA Brett M. Knowles
Reversed, 12/1/09
While expert testimony by a psychologist to explain the terms "sexual fetish," and "ephebophilia" was properly presented, the witness should not have been allowed to "define 'pedophilia' and the 'central characteristics' of a 'pedophile' [since, u]nfortunately, it is difficult to imagine that this information was unknown to the jurors" and trial Assistant should not have been permitted to refer to defendant as a pedophile in summation.

George Davis
N.Y. County ADA Vincent Rivellese
Affirmed, 11/24/09
Since criminal possession is not a lesser included
offense of criminal sale of a controlled substance defendant, who raised an agency defense, was entitled under People v. Glover, 57 N.Y.2d 61 (1982) to jury’s consideration of criminal possession of a controlled substance in the seventh degree as a lesser included offense of the third degree charge.

George Konstantinides
Queens County ADA Karen Wigle Weiss
Argument, 11/17/09
A.D. opinion, 55 A.D.3d 752
Was defendant, who twice attempted to improperly influence a key prosecution witness to alter his testimony in a manner favorable to defendant but did not seek removal of the attorney after his illicit activities were revealed, entitled to a new trial because his attorney suffered under a conflict of interest brought about by the potential charges arising out of the attempts at witness tampering?

Juwanna Wrotten (People’s Appeal)
Bronx County Chief Appellate Attorney Peter D. Coddington
Reversed, 12/15/09
Neither the Sixth Amendment to the United States Constitution or Article 65 of the Criminal Procedure Law prohibit a trial court from permitting the complaining witness in an assault case, unable to travel to New York without seriously endangering his health to testify by a live, two-way television conference.

William Hilts
Schenectady County ADA Gerald A. Dwyer
Affirmed, 12/17/09
Record supports finding that police performed sufficient “due diligence” to permit the People to offer testimony of a confidential informant at an earlier trial, as an “unavailable witness” at the defendant's re-trial and "[c]onsidering the large quantity of evidence impeaching the informant's credibility that defendant had available -- and used -- at the first trial, the informant's request [for the prosecutor's assistance in unrelated matter] and the prosecutor's noncommittal response were immaterial as a matter of law."

Gregory Drayton
Monroe County
Argument, 11/21/09
A.D. opinion, 56 A.D.3d 1278
Must blood sample, collected by hospital staff pursuant to a search warrant that was supported by probable cause, and then obtained by the police be suppressed at trial for endangering the welfare of a child (Penal Law § 260.10 [1]) and driving while ability impaired by drugs on the basis of a violation of the physician-patient privilege, CPLR 4504 (a)?

Christian Tabb
Erie County ADA Raymond C. Herman
Reversed, SSM, 11/24/09
Since there was no record proof of the trial court's compliance with CPL 310.30 with regard to deliberating jury's request for direction on, or an explanation of, 'the legal definition of self defense' conviction could not stand.

Ramon Ramos
Queens Co ADA Rebecca Height
Affirmed, SSM, 12/15/09
Statute of limitations was properly tolled since "defendant's whereabouts were 'continuously unknown and continuously unascertainable,' despite the reasonable diligence of the detectives assigned to the case, until his DNA profile from the rape kit taken from the victim was matched to DNA evidence taken from defendant pursuant to a subsequent incarceration."

George Konstantinides
Queens Co ADA Karen Wigle Weiss
Affirmed, 12/17/09
Though "the continued representation of defendant [by the second of his two attorneys, one for whom defendant had worked] created a potential conflict of interest ... there is record support for the Appellate Division's determination that defendant failed to establish that the conflict operated on the defense" and "to obtain a hearing [on a claim that defendant's prior conviction was unconstitutionally obtained], a defendant must do more than make conclusory allegations that his prior conviction was unconstitutionally obtained [and] support his allegations with facts."