The following is a list of recent and currently pending cases before the Court of Appeals of New York concerning criminal matters
Patrick R. Ashley
St. Lawrence County ADA Jennifer M. Hollis
Affirmed, SSM, 1/6/2011
Defendant's argument against being sentenced as a second felony offender was mooted when he was resentenced as a first time felony offender and defendant did not preserve his claim that his plea was rendered involuntary by a subsequent arrest
Peter Rivera (People's Appeal)
Westchester County
Lv granted, 6/23/2010 (Graffeo, J).
AD opinion, 71 AD3d 700
Where defendant’s license had been revoked for six months, but he had been issued a conditional license, was evidence before the grand jury legally sufficient to establish the aggravated unlicensed operation of a motor
vehicle under VTL §511[3]?
Wayne Stewart
Herkimer County
Lv granted,
AD opinion, 70 AD3d 1367
Was evidence legally sufficient to establish the “serious physical injury” element of first-degree assault?
Christian Bueno
Kings County
Lv granted, 7/21/10 (Smith, J)
AD opinion, 71 AD3d 908
Where the proof did not show that, when the defendant caused injury to an EMT, he did so intending to interfere with the performance of a lawful duty, was evidence legally sufficient to establish second-degree assault?
Herbert Aponte
Queens County ADA Daniel Bresnahan
Argument, 1/6/11
App Term opinion, 24 Misc3d 118
Is attempted stalking in the third degree is a legally cognizable offense since it is solely a conduct based crime, or does the statutory definition of the object crime encompasses an attempt?
Zufer Cecunjamin
Special Franklin County DA by Clinton County CADA Timothy Blatchley
lv granted, 3/16/10 (Smith, J)
AD opinion,67 AD3d 1072
Was evidence legally sufficient to establish that the drunken victim was “physically helpless” to make out Attempted Sexual Abuse 1 where victim testified that, at one point, she resisted defendant’s advances?
Michael Hall
John Freeman
Queens County ADA William Branigan
lv granted, 9/2/10 (Ciparick, J)(both cases), People's brief filed, 11/15/10
AD opinion,74 A.D.3d 836, __ A.D.3d__, (slip op 9530, December 21, 2010) (Freeman)
AD opinion,74 A.D.3d 837, __ A.D.3d__, (slip op 9533, December 21, 2010) (Hall)
Dos stun gun used to incapacitate the victim
during a robbery constitute a dangerous instrument?
Michael Edward Prindle
Monroe County ADA Leslie E. Swift
Modified, 2/22/11
Even under the standards of the now explicitly overruled People v Register, 60 NY2d 270 (1983), which was how the jury was instructed without objection, evidence that defendant drove a van at a high rate of speed on city streets was not legally sufficient to establish depraved indifference murder.
Tony Weaver
Wayne County DA, by Wendy Evans Lehmann (NYPTI)
Affirmed, 2/10/11
Since a defendant may be guilty of disorderly conduct regardless of whether the action results in public inconvenience,
annoyance or alarm if the conduct recklessly creates a risk of
such public disruption evidence of disorderly conduct was legally sufficient consistent with People v. Munafo, 50 NY2d 326(1980).
Monday, January 10, 2011
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.
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.
Sunday, October 25, 2009
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."
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."
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