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For August 6, 2010 through August 12, 2010, the following preliminary appeal statements were filed:

ASHE (DWIGHT), PEOPLE v (74 AD3d 503):
1st Dept. App. Div. order of 6/10/10; reversal; leave to appeal granted by McGuire, J., 7/20/10; Rule 500.11 review pending; CRIMES - INFORMATION - JURISDICTIONAL VALIDITY OF INFORMATION CONTAINING OFFENSE GREATER THAN THAT CHARGED IN ORIGINAL FELONY COMPLAINT - PEOPLE v ZANGHI (79 NY2d 815 [1991]); Supreme Court, New York County convicted defendant, upon his guilty plea, of grand larceny in the first degree; App. Div. reversed, vacated the plea, dismissed the superior court information and remanded to Supreme Court for further proceedings on the felony complaint.

FAIR, ex rel., PEOPLE v ROCK (74 AD3d 1586):
3rd Dept. App. Div. order of 6/17/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; HABEAS CORPUS - AVAILABILITY OF RELIEF; SENTENCES - CONCURRENT OR CONSECUTIVE; Supreme Court, Washington County dismissed petitioner's application pursuant to CPLR article 70, without a hearing; App. Div. affirmed.

GIBSON (JEFFREY D.), PEOPLE v (74 AD3d 1700):
4th Dept. App. Div. order of 6/11/10; affirmance; leave to appeal granted by Green, J., 7/30/10; CRIMES - EVIDENCE - DNA IDENTIFICATION TESTS - POLICE OFFERED DEFENDANT CIGARETTE FOR PURPOSE OF OBTAINING DNA EVIDENCE - DEFENDANT KNOWN BY POLICE TO BE REPRESENTED BY COUNSEL ON ANOTHER CHARGE; SUFFICIENCY OF EVIDENCE; ALLEGED DENIAL OF RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL; ALLEGED PROSECUTORIAL MISCONDUCT ON SUMMATION; FAILURE OF TRIAL COURT TO SHOW JURY NOTES TO DEFENSE COUNSEL BEFORE RESPONDING TO THEM; Supreme Court, Erie County convicted defendant, upon a jury verdict, of robbery in the first degree; App. Div. affirmed.

PACQUETTE (DEAN), PEOPLE v (73 AD3d 1088):
2nd Dept. App. Div. order of 5/18/10; modification; leave to appeal granted by Graffeo, J., 8/4/10; CRIMES - SUPPRESSION HEARING - WHETHER DEFENDANT'S STATEMENTS TAKEN BY BROOKLYN HOMICIDE DETECTIVES IN THE ABSENCE OF AN ATTORNEY MUST BE SUPPRESSED WHERE AN ATTORNEY TOLD THE BROOKLYN DETECTIVES THAT HE REPRESENTED DEFENDANT ON A MANHATTAN DRUG MATTER AND INSTRUCTED THEM NOT TO QUESTION DEFENDANT ON THE HOMICIDE; DEFENDANT TOLD BROOKLYN DETECTIVES THAT HE DID NOT HAVE AN ATTORNEY IN THE MANHATTAN MATTER; Supreme Court, Kings County convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree and imposed sentence; App. Div. modified by vacating the sentence and remitted the matter to Supreme Court for resentencing.

PARISI (JOHN), PEOPLE v (72 AD3d 989):
2nd Dept. App. Div. order of 4/20/10; affirmance; leave to appeal granted by Read, J., 7/27/10; Rule 500.11 review pending; CRIMES - SENTENCE - POST-RELEASE SUPERVISION (PRS) - PRS IMPOSED IN JUDGMENT OF RESENTENCE AFTER DEFENDANT SERVED PART OF HIS PRISON SENTENCE AND WHILE HE WAS STILL CONFINED - ALLEGED VIOLATION OF DOUBLE JEOPARDY AND DUE PROCESS RIGHTS; Supreme Court, Suffolk County upon defendant's convictions of rape in the first degree and sodomy in the first degree under Indictment No. 1505-01, upon a jury verdict, imposed periods of post-release supervision of five years in addition to each of the previously imposed determinate sentences of imprisonment of 25 years; and upon defendant's conviction of assault in the second degree under Indictment No. 1051- 01, upon a jury verdict, imposed a period of post-release supervision of five years in addition to the previously imposed determinate sentence of imprisonment of seven years; App. Div. affirmed.

RAYNOR, MATTER OF v LANDMARK CHRYSLER (75 AD3d 697):
3rd Dept. App. Div. order of 7/1/10; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; WORKERS' COMPENSATION - AGGREGATE TRUST FUND - MANDATORY LUMP-SUM PAYMENT OF PRESENT VALUE OF NONSCHEDULE PERMANENT PARTIAL DISABILITY (PPD) AWARDS MADE ON OR AFTER JULY 1, 2007 - CHALLENGE TO 2007 AMENDMENT TO WORKERS' COMPENSATION LAW § 27(2) (L 2007, Ch 6, § 46) - APPLICABILITY TO AWARD MADE AFTER JULY 1, 2007 WHERE INJURIES ARE SUSTAINED BEFORE THE MARCH 31, 2007 EFFECTIVE DATE OF AMENDMENT CAPPING THE NUMBER OF WEEKS FOR WHICH A CLAIMANT CAN RECEIVE PPD BENEFITS - CONSTITUTIONAL CHALLENGES TO THE 2007 AMENDMENT BASED UPON THE TAKING, CONTRACTS, DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FEDERAL CONSTITUTION - CLAIM THAT COMPUTATION OF THE PRESENT VALUE OF A LUMP-SUM PAYMENT OF UNCAPPED PPD AWARD IS SPECULATIVE AND THEREFORE IMPROPER; App. Div. affirmed a 5/7/09 Workers' Compensation Board decision that directed the employer's workers' compensation carrier to make a deposit into the aggregate trust fund pursuant to Workers' Compensation Law § 27(2).

For August 13, 2010 through August 19, 2010, the following preliminary appeal statements were filed:

BRATHWAITE, PEOPLE ex rel. v FISCHER:
7/8/10 order by Justice Gorski; denial of writ of habeas corpus; sua sponte examination whether an appeal as of right lies from an order of a single App. Div. Justice; HABEAS CORPUS - CHALLENGE TO ORDER OF SINGLE APPELLATE DIVISION JUSTICE THAT, AMONG OTHER THINGS, DENIED A PETITION FOR A WRIT OF HABEAS CORPUS; Justice Gorski, among other things, denied a petition for a writ of habeas corpus.

MATTER OF E. (ANONYMOUS), AN APPLICANT FOR ADMISSION TO THE BAR:
4th Dept. App. Div. order of 6/22/10; denial of petitions for admission or for a rehearing; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; ATTORNEY AND CLIENT - ADMISSION TO PRACTICE - CHALLENGE TO APPELLATE DIVISION ORDER DENYING PETITIONS TO GRANT APPLICATION FOR ADMISSION TO THE NEW YORK STATE BAR OR FOR A REHEARING BEFORE THE CHARACTER AND FITNESS COMMITTEE; App. Div. denied the petitions for an order granting application for admission to the Bar notwithstanding the June 7, 1996 adverse determination of the Character and Fitness Committee, or a hearing before the Committee.

SITTS v SITTS (74 AD3d 1722):
Supreme Court, Oneida County order and judgment of 7/22/10; bringing up for review 4th Dept. App. Div. order of 6/11/10; order and judgment of custody and violation; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether any jurisdictional basis otherwise exists for an appeal as of right pursuant to CPLR 5601(d); PARENT AND CHILD - CUSTODY - CHALLENGE TO APPELLATE DIVISION ORDER THAT, AMONG OTHER THINGS, AWARDED PRIMARY PHYSICAL CUSTODY OF CHILDREN TO DEFENDANT; Supreme Court, Oneida County order that, among other things, awarded primary physical custody of the parties' children to plaintiff; App. Div. (1) modified the Supreme Court order by awarding primary physical custody of the children to defendant and by vacating the second through sixth ordering paragraphs, (2) affirmed as so modified and (3) remitted for further proceedings; thereafter, Supreme Court issued an order and judgment of custody and visitation.

For August 20, 2010 through August 26, 2010, the following preliminary appeal statements were filed:

BROWN (JAZZMONE), PEOPLE v (70 AD3d 1302):
4th Dept. App. Div. order of 2/11/10; affirmance; leave to appeal granted by Lippman, Ch.J., 8/12/10; CRIMES - IDENTIFICATION OF DEFENDANT - LINEUP IDENTIFICATION OVER FOUR YEARS AFTER CRIME AND AFTER PHOTO ARRAY; EFFECTIVE ASSISTANCE OF COUNSEL - ALLEGED FAILURE OF DEFENSE COUNSEL TO OBJECT TO PROSECUTORIAL MISCONDUCT IN SUMMATION; Erie County Court convicted defendant of murder in the second degree, two counts of attempted murder in the second degree, three counts of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree; App. Div. affirmed.

COLLADO (DIONIS), PEOPLE v (73 AD3d 608):
1st Dept. App. Div. order of 5/25/10; reversal; leave to appeal granted by Nardelli, J., 8/10/10; CRIMES - SENTENCE - PERSISTENT VIOLENT FELONY OFFENDER - VACATUR OF SENTENCE FOR PREDICATE FELONY - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT, "WHERE A DEFENDANT RECEIVES AN ENHANCED SENTENCE BASED UPON A PREDICATE FELONY OFFENSE AND THE SENTENCE IMPOSED FOR THE PREDICATE OFFENSE IS VACATED DUE TO THE FAILURE TO PRONOUNCE A TERM OF (POST-RELEASE SUPERVISION), THE RESENTENCING DATE CONTROLS WHETHER THE EARLIER CRIME QUALIFIES AS A PREDICATE OFFENSE UNDER PENAL LAW § 70.06(1)(b)(ii)"; Supreme Court, New York County resentenced defendant, as a second violent felony offender, to an aggregate term of 8 years to be followed by 5 years post-release supervision for his 2005 conviction on two counts of robbery in the second degree; App. Div. reversed and remanded the matter for resentencing, including further proceedings with respect to defendant's predicate felony status.

FRANOV (ROBERT), PEOPLE v (71 AD3d 914):
2nd Dept. App. Div. order of 3/16/10; modification; leave to appeal granted by Read, J., 8/16/10; CRIMES - SUFFICIENCY OF EVIDENCE - WHETHER THE TERM "OTHERWISE USES A VEHICLE" IN PENAL LAW § 165.05(1) REQUIRES "DOMINION AND CONTROL" OVER THE VEHICLE; Supreme Court, Queens County convicted defendant of unauthorized use of a vehicle in the second degree, criminal mischief in the third degree, possession of burglar's tools, and criminal possession of stolen property in the fifth degree, and imposed sentence; App. Div. modified by vacating the conviction of unauthorized use of a vehicle in the second degree, vacating the sentence imposed thereon and dismissing that count of the indictment, and affirmed as so modified.

SALAZAR v NOVALEX CONTRACTING CORP. (72 AD3d 418):
1st Dept. App. Div. order of 4/1/10; reversal; leave to appeal granted by App. Div., 8/17/10; Rule 500.11 review pending; LABOR - SAFE PLACE TO WORK - PLAINTIFF CONSTRUCTION WORKER FELL INTO OPEN TRENCH WHILE WALKING BACKWARDS AND SPREADING CONCRETE ON BASEMENT FLOOR - AVAILABILITY OF CLAIMS UNDER LABOR LAW §§ 200, 240(1) AND 241(6); SUMMARY JUDGMENT; Supreme Court, Bronx County granted the motion of defendants Novalex Contracting Corp., 96 Rockaway, LLC and T-Construction Co., Inc. for summary judgment dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims; App. Div. reversed, denied defendants' motion, and reinstated plaintiff's Labor Law § 240(1) and § 241(6) claims.

WILINSKI v 334 EAST 92nd HOUSING DEVELOPMENT FUND CORP. (71 AD3d 538):
1st Dept. App. Div. order of 3/23/10; modification; leave to appeal granted by App. Div., 7/27/10 and 8/10/10; LABOR - SAFE PLACE TO WORK - LABOR LAW § 240(1) - PLAINTIFF ALLEGEDLY HIT IN THE HEAD BY TWO VERTICAL PIPES THAT FELL OVER WHEN HIT BY DEBRIS FROM A WALL UNDERGOING DEMOLITION - CHALLENGE TO APPELLATE DIVISION HOLDING THAT, "SINCE BOTH PIPES AND PLAINTIFF 'WERE AT THE SAME LEVEL AT THE TIME OF THE COLLAPSE [OF THE PIPES,] THE INCIDENT WAS NOT SUFFICIENTLY ATTRIBUTABLE TO ELEVATION DIFFERENTIALS TO WARRANT IMPOSITION OF LIABILITY PURSUANT TO LABOR LAW § 240(1)' " - APPLICABILITY AND CONTINUING VIABILITY OF MISSERITTI v MARK IV CONSTR. CO. (86 NY2d 487 [1995]) - RUNNER v NEW YORK STOCK EXCHANGE (13 NY3d 599 [2009]); LABOR LAW § 241(6) - APPLICABILITY OF INDUSTRIAL CODE PROVISIONS, 12 NYCRR 23-3.3(b)(3) AND (c), WHETHER SECTION 23- 3.3(b)(3) REQUIRES PLAINTIFF TO SHOW THAT WIND PRESSURE OR VIBRATION CAUSED THE PIPES TO FALL - WHETHER PLAINTIFF'S INJURIES WERE CAUSED BY "WEAKENED OR DETERIORATED FLOORS OR WALLS OR FROM LOOSENED MATERIAL" WITHIN THE MEANING OF SECTION 23-3.3(c) - WHETHER CERTAIN DEFENDANTS ESTABLISHED THEIR ENTITLEMENT TO SUMMARY JUDGMENT UPON THE GROUND THAT THEY WERE NOT OWNERS OR CONTRACTORS WITHIN THE MEANING OF THE LABOR LAW; Supreme Court, New York County granted plaintiffs' motion for summary judgment on the issue of liability under Labor Law § 240(1) and denied defendants' cross motion for summary judgment dismissing the complaint; App. Div., modified to deny plaintiffs' motion and to grant defendants' cross motion to the extent of dismissing the section 240(1) claim and otherwise affirmed.