Court of Appeals: 2010 Term

The following is a list of cases before the Court of Appeals of New York concerning criminal matters during its 2010 term:


Daivery Taylor (People's Appeal)
Attorney General (Nassau Co) by Assistant Solicitor General Monica Wagner
Reversed, 2/11/10
"Intent to defraud" element of Offering a False Instrument for Foiling in the First Degree, Penal Law § 175.35, does not require evidence that the receiving agency "take[s] action in reliance upon the filing of such information and itself be misled to its detriment [since 'i]ntent to defraud' refers only to a defendant's state of mind in acting with a conscious aim and objective to defraud."


Stephen Price (People's Appeal)
Suffolk Co ADA Thomas C. Costello
Affirmed, 2/11/10
The "exceptional circumstances" provision in CPL 30.30(4)(g) does not exclude from section 30.30 calculation the period during which an appeal is pending in an unrelated prosecution which involves similar legal issues because the record of this case shows only "prosecutorial inaction resulting in the prolonged pendency of a criminal complaint without any judicial intervention and any notification to defendant of the status of the proceeding."

Henry Cozzani (People's Appeal)
Suffolk Co ADA Thomas C. Costello
Affirmed, SSM, 2/11/10
Same as Price, above.

Andrew Luciere (People's Appeal)
Suffolk Co ADA Thomas C. Costello
Affirmed, SSM, 2/11/10
Same as Price, above.

Charles Zarate (People's Appeal)
Suffolk Co ADA Thomas C. Costello
Affirmed, SSM, 2/11/10
Same as Price, above.

Darrell Williams
Efrain Hernandez
Craig Lewis
Danny Echevarria (Article 78)
Edwin Rodriguez
New York County ADA David M. Cohn (Williams), New York County ADA Martin J. Foncello (Lewis, Hernandez, Rodriguez), AAG Rajit S. Dosanjh (Echevarria)
Williams, Hernandez, Lewis, Rodriguez, reversed, Echevarria, affirmed, 2/23/10
The resentencing of a defendant who was sentenced illegally without a post release supervision ("PRS") component is not limited to the one year period in which the People are authorized to move to vacate an illegal sentence, such a defendant must be sentenced to PRS unless the People consent to a resentence without PRS, and the constitutional double jeopardy protections only apply to those who have been released from prison and thus have an "expectation of finality" in the sentence originally pronounced, even if it was illegal.

Vincent Fiammegta
Kings County ADA Morgan J. Dennehy
Reversed, 2/16/10
Court's inquiry regarding the circumstances concerning the defendant's discharge from a drug treatment program was insufficient to determine that the defendant violated plea agreement since "when a program discharges a defendant for misconduct, the court must carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis for the program's decision, and must explain, on the record, the nature of its inquiry, its conclusions, and the basis for them" and, under these circumstances, court "was not required to conduct an evidentiary hearing ... or to determine by a preponderance of the evidence that defendant was guilty of the thefts of which he was accused....the judge should have considered defendant's argument that he was kicked out of the
program based on thin evidence of wrongdoing after inadequate investigation; and he should have allowed defendant to submit letters and testimony or affidavits from his mother and girlfriend about the money they claimed to have sent him" to explain his possession of money alleged to have been stolen from others.

Mark Ochoa
Miguel Figueroa
Bronx County ADA Jason S. Whitehead
Affirmed, 2/16/10
Prior consistent statements of two People's witnesses were properly received as evidence since those "questions on redirect were addressed to matters raised by defense counsel on cross=examination,and 'did no more than to explain, clarify and fully elicit a question only partially examined by the defense'(People v Regina, 19 NY2d 65, 78 [1966]" and trial court's ex parte inquiry of jury foreperson about a note expressing the juror's not feeling "comfortable" about reading the verdict since "[t]he substance of the note related only to the foreperson's concern about the manner in which that verdict was to be delivered, and thus was nothing more than an inquiry of a ministerial nature...unrelated to the substance of the verdict."

Tatyana Kisina
Attorney General (Queens County), by Hannah Stith Long
Affirmed, 2/18/10
Evidence that "fraudulent medical documentation was submitted to a no-fault insurance carrier for the purpose of receiving payments for treatments that were unnecessary or unperformed" was legally sufficient to establish Falsifying Business Records in the First Degree.

Marcellus Pierce
Erie County ADA Michael J. Hillery
AD opinion, 57 A.D.3d 1397
Argument, 1/14/2010
Was Superior Court Information to which defendant pled guilty jurisdictionally defective?

Homer Brown, Jr
Monroe County ADA Nicole M. Fantigrossi
Reversed, 2/18/10
Where defendant pled guilty under an arrangement which would allow him a furlough to visit his critically ill son, trial court's failure prior to the plea to inquire "about the impact the promised furlough had on defendant's decision to plead guilty or indeed whether defendant was pleading
guilty voluntarily" required a haring on the motion to withdraw the notwithstanding an adequate plea allocution since "whether defendant admitted his guilt to the
charged crimes does not inform the analysis of whether the plea was voluntary."

Leonard A. Leopold
Erie County ADA Matthew B. Powers
Reversed, SSM, 1/14/10
Failure of either Appellate Division or Supreme Court to set forth statutorily required "findings of fact and conclusions of law" for SORA risk determination required remitting case back to Supreme Court for that purpose

Roland Ramos
Queens County ADA Daniel Bresnahan
Reversed, SSM, 1/12/10
Trial court improperly received document in evidence as business record where "[n]othing on
its face indicate[d] that it 'was made in the regular course of
business and that it was the regular course of business to make
it'(CPLR 4518[a])"

Howard Glenn Blake, alleged to be Larry Wayne
Barnett
Suffolk Co ADA Michael Blakey
Affirmed, SSM, 1/12/10
In habeas proceeding, relator who was convicted of a crime in South Carolina and escaped from incarceration must make equitable arguments in that state and Supreme Court, accordingly, should not have granted habeas but instead execute Governor's warrant for extradition.

Jerry Francois
NY Co ADA Lindsey M. Kneipper
Affirmed, SSM, 2/11/2010
AD finding that "officer's conduct did not elevate his encounter with defendant from a common-law inquiry to a seizure necessitating reasonable suspicion" was based on a mixed question of law and supported record evidence and, thus, beyond the Court's authority to further review it.

Michael Edwards
Attorney General (Monroe Co) by Deputy Solicitor General Roseann B. MacKechnie
Affirmed, SSM, 2/11/10
AD finding with regard to whether defendant's request for counsel was "equivocal" or not was based on a mixed question of law and supported record evidence and, thus, beyond the Court's authority to further review it. Where defendant "did not demonstrate that ... testimony [of witness not called to testify] would have been non-cumulative or expected to be favorable to the People" he was not entitled to a missing witness charge.


Thomas Edwards (People's Appeal)
Erie Co ADA Michael J. Hillery
Reversed, SSM, 2/16/10
The initial stop of defendant's vehicle was permissible and the police officers' subjective motivation to investigate possible drug activity does not negate the objective reasonableness of the officers' actions [and] as a matter of law, the officers did not inordinately prolong the detention beyond what was reasonable under the circumstances to address the traffic infraction

Juan Rivera
Bronx Co ADA Timothy C. Stone
Affirmed, SSM, 2/18/10
AD properly denied coram nobis where "[d]efendant has not demonstrated the absence of a legitimate explanation for his appellate counsel's failure to brief the issue whether his guilty plea should be vacated under People v Catu (4 NY3d 242 [2005])."


Susan McDade
Rensselaer Co ADA Ian H. Silverman
Affirmed, SSM, 2/23/10
Evidence "provided a valid line of reasoning and permissible inferences that could lead a rational jury to conclude that the
contact between defendant and [victim] was sexual intercourse" and was, therefore, supported Rape 2 conviction since "[t]he fact that other inferences could have been drawn by the jury does not render the evidence legally
insufficient."

James J. Carncross
Onondaga County ADA James P. Maxwell
Affirmed, 3/25/10
Trial court properly disqualif[ied]the attorney of a
defendant's choosing due to that attorney's conflicts, actual or potential, even in the face of defendant's waiver of such conflicts," legal sufficiency claim with regard to defendant's mens rea was unpreserved, his conduct plainly sufficient to show causation sufficient to establish criminally negligent homicide and defendant's statement was not subject to suppression as the result of the ineffective assistance of counsel.

Avery V. Baker, Jr.
Chemung County ADA Damian M. Sonsire
Affirmed, 3/25/10
Since defendant did not "demonstrat[e] that his [trial] attorney failed to provide meaningful representation," ineffective ssistance was not established by failure of trial attorney to "ask the court to instruct the jury that it should consider ... three homicide counts in the alternative" at least in part because "the counts of depraved indifference murder of a child and first-degree manslaughter as charged in the indictment were not inconsistent and it was proper to allow the jury to consider both offenses simultaneously rather than in the alternative."

Patrick Zephrin (People's Appeal)
Assistant New York City Corporation Counsel Susan Paulson (Kings Co)
Affirmed, 3/30/10
Defendant serves probation and jail time concurrently when he is sentenced to a six months split. Hence, defendant's "jail-time credit toward his sentence of imprisonment also reduce[d] his term of probation."

Jose Tolentino
New York County ADA Allen J. Vickey
Affirmed, 3/30/10
No motion to suppress motor vehicle records may be based on the fact that defendant was illegally arrested since "a defendant may not invoke the fruit-of-the-poisonous-tree doctrine when the only link between improper police activity and the disputed evidence is that the police learned the defendant's
name."

Mazin Assi
Bronx County Chief Appellate Attorney Peter Coddington
Affirmed, 3/30/10
Hate Crimes statute, Penal Law Article 485, became effective on Sunday, October 8, 2000 under the provisions of Legislative Law § 43 and applies to property crimes when defendant "intentionally commit[s] a specified offense 'in whole or in substantial part because of a belief or perception regarding the race, color,national origin, ancestry, gender, religion, religious practice,
age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct' (Penal Law § 485.05[1] [b])."

Eric D. Carr
Erie County ADA Donna A. Milling
Affirmed, 4/1/10
Trial court "did not abuse its discretion in holding that defendant's request for a missing witness charge, made more than a week after the People provided their witness list, and after the People had rested their case in chief, came too late."

Robert Mothersell
Onondaga County ADA James P. Maxwell
Reversed, 4/1/10
"All persons present" warrant for search for contraband was improperly issued even under People v Nieves, 36 NY2d 396 (1975) and, in any event, did not permit strip search of defendant.

Lynette Caban (People's Appeal)
New York County ADA Marc Krupnick
Reversed, 4/1/10
Defendant's license suspension for various vehicular offenses was relevant to license suspension to the issues as to criminally negligent homicide charges arising from similar conduct which this time killed a person

James Kadarko (People's Appeal)
Bronx County ADA T. Charles Won
Reversed, 4/6/10
Trial court properly met its obligations with respect to note from deliberating jury when "judge informed counsel of the
contents of the note and that he was specifically withholding the
numbers from counsel until after the jury had retired to resume
deliberations"

Angel L. Cruz
Monroe County ADA Stephen X. O'Brien
Reversed, 4/6/10
"Presumption of regularity" under which it could be concluded that the jury did not request to see a particular exhibit erroneously received in evidence before them, then withdrawn outside their presence, was overcome sufficient to establish either that note was not handled as required by law or that jury may have been given an exhibit not properly received in evidence.

Avery Pettigrew
New York County ADA Mary C. Farrington
Affirmed, 4/6/10
"People proved by clear and convincing evidence that defendant was armed with a dangerous instrument for the purposes of classifying him a level three sex offender under the Sex Offender Registration Act (SORA) [by evidence of] defendant's display of a gun to the victim and its threatened use.

Terrance Johnson
Erie County ADA Shawn P. Hennessy
Reversed, 5/4/10
By modifying sentencing terms in plea agreement, trial court "voided defendant's prior waiver of appeal and required the re-allocution of the waiver [even though the] judge offered defendant the option of withdrawing his plea and proceeding to trial".

Gary Alford
Albany County ADA Steven M. Sharp
Modified, SSM, 5/4/10
"Because it is impossible to determine whether the act that formed the basis for
the jury's guilty verdict on count 1 – anal sexual conduct occurring on March 12, 2007 – was also one of the two or more acts that formed the basis for" a course of sexual conduct charge with some overlap in the time period, the sentences must run concurrently.

John P. Daly
Nassau County ADA Andrea M. DiGregorio
Affirmed, 5/4/10
There was "no reasonable possibility" that the People's failure to disclose documents relating to "a robbery and shooting at an off-track betting parlor" as required under Rosario or Brady "had a spillover effect on the other guilty verdicts, relating to an attempted robbery and shooting at a gas station [and]there was strong, independent proof of the defendant's guilt on the gas station counts, including evidence that the defendant's revolver was the source of the bullet removed from the shooting victim; that the owner of the gas station and the victim identified defendant; that the owner, the victim and an attendant all recognized the perpetrator as a person they had previously seen at the gas station, who drove a pickup truck with the same identifying features as the defendant's truck; and that the defendant was identified in a lineup as the perpetrator of the gas station crimes."

Joshua M. Zona (People's Appeal)
Seneca County Special District Attorney R. Michael Tantillo
Affirmed, 5/6/10
Defendant, a deputy sheriff on trial for the larceny of brand new tires, a boat with a bullet hole in it and a file cabinet, which he was instructed to transfer from a warehouse used by the sheriff's office to a new warehouse, was entitled to jury instruction concerning the "claim of right" defense under Penal Law § 155.15 (1) based on his pre-arrest statement that "if credited, establishes that ... one of the highest ranking officials in the Seneca County Sheriff's Department, gave defendant and his colleagues permission to take whatever property they wanted [and] that two of [defendant's] colleagues also relied
on [the] representation and took property, and that [the high ranking official] procured several items of property for himself as well [as well as] evidence demonstrates that the sheriffs used their personal vehicles to move the property and that most of the property stored at this surplus warehouse was described as junk,
old, and wrecked."

Alex Rivera
Kings County ADA Diane R. Eisner
Modified, 5/6/10
After deliberating jury announced it had a partial verdict but was deadlocked on other counts, and jury was brought into open court to announce its partial verdict, trial court could not refuse to "accept it" and direct that jury continue its deliberations on all the counts before it.


Rance Scully
Oneida County ADA Steven G. Cox
Affirmed, 5/6/10 County Court properly summarily denied defendant's motion to suppress physical evidence since although defendant "alleged that the officer searched him on the basis of a search warrant that had been issued without probable cause...[he] did not [make]factual allegations to support his claim that probable cause was lacking" nor did he "demonstrate a personal legitimate
expectation of privacy in the searched premises" as required by (People v
Wesley, 73 NY2d 351, 357 (1989).


James Dreyden
Kings County ADA Terry-Ann Llewellyn
Reversed, 6/15/10
A misdemeanor complaint to which defendant pleads guilty while waiving his right to be prosecuted by information is jurisdictionally defective permitting an appeal, the vacatur of his plea and the dimissal of the complaint, where in describing "the arresting officer's conclusion that defendant had a gravity knife, fail[s] to give any support or explanation whatsoever for the officer's belief.".

Nathan J. Reome
Onondaga County CADA James P. Maxwell
Affirmed, 6/17/10
While "independent evidence that may point toward
defendant as one of the victim's rapists does exist -- but...is unimposing [and] obviously falls far short of what would be necessary to prove defendant's guilt...[w]
hether it meets the much less demanding standard applied to corroborative evidence under CPL 60.22 (1) is a close question. We find it unnecessary to answer the question, because we conclude that other corroborative evidence, though not
independent [under People v Hudson,51 NY2d 233, 238 1980)] should not be disregarded" and, thus, Hudson is overruled at least to that extent.

Albeiro Valencia (People's Appeal)
Nassau County ADA Judith R. Sternberg
Affirmed, 6/17/10 "There is insufficient evidence to support a conviction for depraved indifference assault. The trial evidence established only that defendant was extremely intoxicated and did not establish that he acted with the culpable mental state of depraved indifference".


William Hassell
New York County ADA Matthew C. Williams
Reversed, SSM, 6/17/10
As the Court held earlier this year, "The Double Jeopardy Clause of the federal constitution precludes a court from adding PRS to a defendant's sentence once the defendant has been released from imprisonment"
.

Ivin Williams
New York County ADA Matthew C. Williams
Reversed, SSM, 6/17/10
As the Court held earlier this year, "The Double Jeopardy Clause of the federal constitution precludes a court from adding PRS to a defendant's sentence once the defendant has been released from imprisonment."


Kezine Murray
Kings County ADA Solomon Neubort
Affirmed, 6/24/10
Defendant was properly sentenced as an adult since his promised youthful offender treatment was conditioned by, among other things, his appearance for sentencing, which he failed to do, and defendant's failure to argue against a term of post release supervision ("PRS) announced at the outset of the proceeding, rendered his claim concerning that term unpreserved

David Diaz
New York County ADA Malancha Chanda
Affirmed, SSM, 7/1/10
"[T]rial evidence was sufficient to allow a jury to infer both that defendant exercised dominion and control over the van from which police recovered over four ounces of crack cocaine, and that defendant had knowledge that the drugs were secreted in a hidden compartment beneath the van's air bag cover (Penal Law § 220.18[1])."

James McRae
Orange County ADA Elizabeth L. Guinup
Affirmed, SSM, 7/1/10
Since "the accomplice testimony was corroborated with independent evidence as well as evidence that 'harmonized' with the accomplice testimony, the evidence was legally sufficient to support defendant's convictions," trial court did not abuse discretion in denying eve of trial reqyest by defendant for a new attorney, and that failure to instruct as to an affirmative defense effected entire verdict was unpreserved.

Isham Moore
Kings County ADA Solomon Neubort
Affirmed, SSM, 9/2/10
Since "[t]here are sound strategic reasons for
counsel's decision not to request" a justification instruction to the jury (and, in any event, defendant was not entitled to one, defense counsel did not provide ineffective assistance.



Timoteo Ramirez
New York County ADA Grace Vee
Affirmed, SSM, 9/16/10
Evidence was legally sufficient for a jury to conclude "that defendant constructively possessed the drugs and drug paraphernalia located in an apartment in which defendant himself was found" and "although the record is silent as to whether Supreme Court showed the jury note to counsel as required inPeople v O'Rama (78 NY2d 270 [1991]), defense counsel had notice
of the contents of the note and the court's response, and failed to object at that time, when the error could have been cured. Accordingly, defendant's claim is unpreserved for review."


Ronald Mack
Queens County ADA Merri Turk Lasky
Affirmed, SSM, 9/21/10
"Defendant ... failed to establish that he was
denied the effective assistance of appellate counsel."


Jose Rivera
Bronx County ADA Karen Swiger
Reversed, SSM, 9/23/10
Defendant was entitled to instruction as to lesser included offense since "[t]here was a reasonable basis in the evidence viewed in
the light most favorable to defendant for finding defendant not guilty of criminal possession of a weapon in the second degree(Penal Law § 265.03 [1] [possessing a 'loaded firearm' 'with intent to use the same unlawfully against another']), and yet
guilty of criminal possession of a weapon in the fourth degree,(Penal Law § 265.01 [1] [possessing any firearm])."


Jesse Brabham (People's Appeal)
New York County ADA Allen J. Vickey
Dismissed, SSM, 9/23/10
Since Appellate Division's unexplained finding of "mitigating circumstances" permitting bail jumping sentence to run concurrently with that for underlying drug crime after he failed to complete drug rehabilitation program and absconded instead, was not "on the law alone or upon the law and such facts which, but forthe determination of law, would not have led to * * *modification" under CPL 450.90[2][a], Court did not have jurisdiction to consider People's appeal.

Raymond Brun
Nassau County ADA Andrea M. DiGregorio
Reversed, SSM, 10/16/10
Failure of Appellate Division to apply its own rule to require trial attorney to represent defendant on People's appeal from an order setting aside a conviction required that coram nobis be granted, and the Appellate Division's reversal of the underlying order vacated for a de novo appeal.

Carlos Reyes (People's Appeal)
New York County ADA Susan Axelrod
Dismissed, SSM, 10/19/10
Appellate Division holding that "flight alone, even if accompanied with equivocal circumstances that would justify a police request for information, does not establish reasonable suspicion of criminality and is insufficient to justify pursuit, although it may give rise to reasonable suspicion if combined with other specific circumstances indicating the suspect's possible engagement in criminal activity" but that there were none, does not constitute a reversal "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal" under CPL 450.90[2][a] and, thus, Court was without jurisdiction to consider People's appeal.

Dana R. Bradford
Monroe County ADA Geoffrey Kaeuper
Affirmed, 10/19/10
Record supported Appellate Division conclusion that defendant's confession was "sufficiently attenuated from defendant's initial detention by the police" since his interrogation began about 2½ hours after defendant was first handcuffed [and i]n the interim, the police secured statements [from others] which clearly established probable cause for defendant's arrest."

Donald McKinnon
Bronx County ADA Jason S. Whitehead
First degree assault conviction reversed, 10/14/10
Since "'to disfigure . . . seriously' must be to inflict some harm substantially greater than the minimum required for 'disfigurement' [and a] person is "seriously" disfigured when a reasonable observer would find her altered appearance distressing or objectionable" marks that defendant
created by biting the victim's inner forearm were insufficient to make out first degree assault.

Nathaniel Syville
Tony Council
New York County ADA Alan Gadlin (both cases)
Reversed, 10/14/10
Defendants whose failure to file a notice of appeal within one year may seek coram nobis since "[w]hen defense counsel disregards a client's timely request to file a notice of appeal, the attorney 'acts in a
manner that is professionally unreasonable'(Roe v Flores-Ortega,
528 US 470, 477 [2000])."

Dragan Boscic (People's Appeal)
Sullivan County ADA Bonnie M. Mitzner
Reversed, 11/17/10
No per se rule was created by People v Todd, 38 NY2d 755 [1975]) under which "breath-alcohol detection devices must be calibrated at least every six months in order for the test results to be admissible" so long as the People can demonstrate "that the particular device used was in proper working order when the test was administered."

Tashiem Bayard
NY County ADA Karen Schlossberg
Affirmed, 11/17/10
Where People disclosed a report with "descriptive information relating to the crime and the perpetrators but [which] did not contain the name of the officer that compiled that information" the "failure to disclose the officer's identify" did not violate ,u>Brady v. Maryland, 373 U.S. 83 (1963) since even if "the omitted name had exculpatory or impeachment value, there is no reasonable possibility that, if the officer's identify had been discovered, the outcome of the proceedings would have been different."

Gregory Taylor
Bronx County ADA Frances Y. Wang
Murder 2 conviction reversed, 11/18/10
An objection against the legal sufficiency of a depraved indifference murder count based on People v Suarez, 6 NY3d 202 (2005), adeqautely preserved defendant's argument, even if it were based on People v Feingold, 7 NY3d 288 (2006) and the motion to dismiss should have been granted since defendant's conduct made out an intentional murder and not one based on a depraved indifference to human life.


Mordekay Levi
Queens County ADA Edward D. Saslaw
Affirmed, 11/18/10
Trademark counterfeiting statute applies to items bearing a counterfeit trademark even if the trademark holder "never
placed or intended to place that mark on that particular good.".

Oldalys Ortega
Maurice Benston
New York County ADA Malancha Chanda (Ortega), Bronx County ADA Robert R. Sandusky, III (Benston)
Affirmed, 11/23/10
Medical records which recited statements made to medical professionals for the purpose of diagnosis and treatment are admissible as business records.

Dwight Ashe (People's Appeal)
New York County ADA David Cohn
Affirmed, SSM, 11/23/10
Since superior court information (SCI) charged defendant with an offense other than one for which he was held for action of the grand jury, it is defective.

Joseph Hecker
Anthony Guardino
Eric Hollis
Jamel Black
New York County ADAs Ellen Stanfield Friedman (Hecker), Amyjane Rettew (Guardino) and Jared Wolkowitz (Hollis), Kings County ADA Seth Lieberman (Black)
Hecker reversed, Guardino, Hollis and Black affirmed, 11/30/10
In attempting to show a Batson violation by making a prima facie showing of discriminatory use of peremptory challenges "purely numerical or statistical arguments are rarely conclusive in the absence of other facts or circumstances to give rise to an inference of discrimination," it is error to find a Batson violation where a decision to exercise a peremptory challenge "cannot be construed to be rooted in racial animosity but rather a "rationale [with] some basis in accepted trial strategy [such as] not to avoid or ignore a particular class of prospective jurors based on race but to remove jurors whom either [attorney] did not have time to address[,]...trial courts must evaluate whether the proffered step two race neutral reasons are pretextual based on the totality of all the relevant facts and circumstances" and "the unjustified denial of a peremptory challenge violates CPL 270.25 (2) and requires reversal without regard to harmless error" (internal quotes and cites omitted).

Charles Frazier (both parties appealing, in part)
New York County ADA Eleanor J. Ostrow
Modified, 12/14/10
Defendant may be sentenced consecutively on burglary and grand larceny convictions since the two "statutes do not
contain the same actus reus and "separate acts have been committed with the requisite criminal intent." Moreover, the " record affords no basis for finding defendant incompetent as a matter of law."



Ulysess McKnight
Kings County ADA Keith Dolan
Affirmed, 12/14/10
Defendant may be sentenced consecutively for crimes which are part of the same criminal transaction so long as "separate acts have been committed with the requisite criminal intent"

Calvin Battles
Kings County ADA Solomon Neubort
Modified, 12/14/10
Defendant must be sentenced concurrently for crimes where "the risk creating conduct [is] the same act" but there is no basis defendant's argument against the persistent felony offender statute.

Jamel Bell
New York County ADA Sheryl Feldman
Affirmed, 12/14/10
"[T]he right of trial by jury under Article I, § 2 of our Constitution is [no] broader in [Apprendi terms] than the jury trial right protected by the Sixth Amendment to the Constitution of the United States."

Peter Wells
Queens County ADA Donna Aldea
Affirmed, 12/14/10
Where trial court was trial "concern[ed] that [a] juror would be incapable of remaining awake and attentive during the trial -- an essential prerequisite of proper jury service" it could properly discharge the juror under CPL 270.15.

Bruce Sweeper
New York County ADA Patricia Curran
Affirmed, SSM, 12/14/10
Having failed to establish "a step one prima facie case of racial discrimination" defendant's claim of a Batson violation was properly rejected and his challenge to the constitutionality of the persistent felony offender statute "is barred by United States v Almendarez-Torres (523 US 224 [1998]."

Sean Smith
New York County ADA Martin J. Foncello
Affirmed, 12/16/10
Registration and notice requirements of local New York City Gun Offennder Registration Act (GORA) "are not a 'traditional, technical or integral' part of defendant's sentence or subsumed within the judgment of conviction" and, hence, may not be challenged on appeal from a gun conviction that triggers the requirements.


Kenneth Stepter
New York County ADA Allen J. Vickey
Affirmed, SSM, 12/16/10
Defendant's claim that he cannot be required to register as a gun offender was rendered moot by People's concession that his conviction did not require such registration.


William Porto
Rodriguece Garcia, a/k/a/ Carlos Rodriguez
New York County ADA Sara M. Zausmer (Porto), Bronx County ADA Cynthia Carlson (Garcia)
Affirmed, 12/21/10
A defendant who seeks to have appointed counsel relieved and new counsel substituted must "proffer specific allegations of a 'seemingly serious request'" before the court is required to "engage in a minimal inquiry" as to the merits of defendant's claim.