Return to New Filings Page


For August 27, 2010 through September 2, 2010, the following preliminary appeal statements were filed:

ACEVEDO (BENITO), PEOPLE v (75 AD3d 255):
1st Dept. App. Div. order of 5/25/10; reversal; leave to appeal granted by Nardelli, J., 8/24/10; CRIMES - SENTENCE - PERSISTENT FELONY OFFENDER - VACATUR OF SENTENCE FOR PREDICATE FELONY (DUE TO TRIAL COURT'S FAILURE TO PRONOUNCE THE MANDATORY TERM OF POST-RELEASE SUPERVISION) - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT, ALTHOUGH DEFENDANT'S 2001 ATTEMPTED ROBBERY CONVICTION NO LONGER QUALIFIES AS A PREDICATE FELONY, THE APPROPRIATE REMEDY IS TO REMAND FOR RESENTENCING TO AFFORD THE PEOPLE THE OPPORTUNITY TO ESTABLISH WHETHER HIS 1993 MASSACHUSETTS CONVICTION STILL QUALIFIES AS A PREDICATE FELONY WHEN THE TIME HE HAS SPENT INCARCERATED IS EXCLUDED FROM THE 10-YEAR LIMITATION PURSUANT TO PENAL LAW § 70.06(1)(b)(iv) AND (v); Supreme Court, New York County denied defendant's CPL 440.20 motion to set aside his sentence on a 11/14/06 judgment convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to concurrent terms of 6 years, to be followed by a 3-year term of post-release supervision; App. Div. reversed and remanded for sentencing, including further proceedings with respect to defendant's predicate felony status.

CREDLE (DONDI), PEOPLE v (66 AD3d 572):
1st Dept. App. Div. order of 10/22/09; affirmance; leave to appeal granted Jones, J., 8/20/10; GRAND JURY - RESUBMISSION OF CHARGES - WHETHER THE PEOPLE ARE REQUIRED TO OBTAIN COURT AUTHORIZATION UNDER CPL 190.75 TO PRESENT THE CASE TO A DIFFERENT GRAND JURY WHERE THE PEOPLE WITHDREW A FULLY PRESENTED CASE TO A FIRST GRAND JURY WHICH VOTED "NO AFFIRMATIVE ACTION" (i.e., NOT ENOUGH VOTES TO INDICT OR DISMISS); Supreme Court, New York County convicted defendant of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentenced him, as a second felony drug offender whose prior felony conviction was a violent felony, to concurrent terms of 8 years; App. Div. affirmed.

BRAD H. v CITY OF NEW YORK (— AD3d —, 2010 NY Slip Op 06355):
1st App. Div. order of 8/10/10; reversal with dissents; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether the two-justice dissent at the Appellate Division is on a question of law; STIPULATION - STIPULATION OF SETTLEMENT - MEANING OF STIPULATION THAT THE "PROVISIONS OF THIS AGREEMENT SHALL TERMINATE AT THE END OF FIVE YEARS AFTER MONITORING BY THE COMPLIANCE MONITORS BEGINS" - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT THE PROVISIONS OF THE SETTLEMENT AGREEMENT HAD "TERMINATED" AT THE TIME PLAINTIFFS SOUGHT INJUNCTIVE RELIEF TO COMPEL DEFENDANTS' COMPLIANCE WITH THE AGREEMENT; ESTOPPEL - AVAILABILITY AGAINST GOVERNMENTAL AGENCY; Supreme Court, New York County, among other things, granted plaintiffs' motion for a preliminary injunction requiring defendants to continue to abide by the terms of parties' stipulation of settlement, which was approved in an 4/2/03 amended final order and judgment, and denied defendants' cross motion for an order declaring the action terminated pursuant to the terms of the stipulation; App. Div. reversed, "on the facts," granted defendants' cross motion and declared the action terminated in the absence of jurisdiction over the dispute.

STEWARD (OWEN), PEOPLE v (72 AD3d 524):
1st Dept. App. Div. order of 4/20/10; affirmance; leave to appeal granted by Graffeo, J., 8/16/10; CRIMES - JURORS - SELECTION OF JURY - WHETHER TRIAL COURT ERRED IN GIVING DEFENSE COUNSEL FIVE-MINUTE LIMIT FOR VOIR DIRE QUESTIONING OF EACH JURY PANEL; WHETHER TRIAL COURT ERRED IN ALLOWING WITNESSES TO IDENTIFY DEFENDANT ON A VIDEOTAPE; ADMISSIBILITY OF EVIDENCE OF DEFENDANT'S PRIOR CRIMINAL CONVICTION; ROBBERY; Supreme Court, New York County convicted defendant of two counts of robbery in the first degree and robbery in the second degree, and sentenced him, as a second felony offender, to an aggregate term of 12 years; App. Div. affirmed.

For September 3, 2010 through September 9, 2010, the following preliminary appeal statements were filed:

BECOATS (COREY), PEOPLE v (71 AD3d 1578):
4th Dept. App. Div. order of 3/26/10; modification; leave to appeal granted by Jones, J., 8/20/10; CRIMES - TRIAL - ADJOURNMENT - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO GRANT DEFENDANT AN ADJOURNMENT TO SECURE THE ATTENDANCE OF A WITNESS WHO WAS IN FEDERAL CUSTODY; CLAIM THAT ROBBERY COUNT WAS DUPLICITOUS BECAUSE DEFENDANT WAS CHARGED WITH STEALING "A BB GUN AND/OR A PAIR OF SNEAKERS" - PRESERVATION; Supreme Court, Monroe County convicted defendant of murder in the second degree and robbery in the first degree; App. Div. modified by reducing the conviction of murder in the second degree to manslaughter in the second degree, vacating the sentence imposed on count two of the indictment and vacating the sentence imposed on count four of the indictment; affirmed the judgment as so modified; and remitted to Supreme Court for sentencing on the conviction of manslaughter in the second degree and for resentencing on the conviction of robbery in the first degree.

BIRNBAUM, MATTER OF v NEW YORK STATE DEPARTMENT OF LABOR (75 AD3d 707):
3rd Dept. App. Div. order of 7/1/10; reversal; leave to appeal granted by Court of Appeals, 8/31/10; CIVIL SERVICE - COMPENSATION AND BENEFITS - LEAVE FOR ORDINARY DISABILITY - WHETHER CIVIL SERVICE LAW § 72 APPLIES ONLY TO EMPLOYEES PLACED ON INVOLUNTARY LEAVE FROM AN "ACTIVE" STATUS OR ALSO TO EMPLOYEES PLACED ON INVOLUNTARY LEAVE FROM VOLUNTARY SICK LEAVE STATUS; Supreme Court, Albany County granted petitioner's CPLR article 78 petition to annul a determination of respondent Department of Labor placing petitioner on involuntary leave of absence; App. Div. reversed and dismissed the petition.

CRAGG v ALLSTATE INDEMNITY CORP. (74 AD3d 90):
4th Dept. App. Div. order of 5/7/10; affirmance; leave to appeal granted by Court of Appeals, 9/2/10; INSURANCE - HOMEOWNER'S INSURANCE - DUTY TO DEFEND OR INDEMNIFY - EXCLUSION FOR CLAIMS BASED ON DEATH OF INSURED - POLICY PROVISION EXCLUDING COVERAGE FOR "BODILY INJURY TO AN INSURED PERSON ... WHENEVER ANY BENEFIT OF THIS COVERAGE WOULD ACCRUE DIRECTLY OR INDIRECTLY TO AN INSURED PERSON" - APPLICABILITY OF EXCLUSION TO INSURED DEFENDANTS IN WRONGFUL DEATH ACTION BROUGHT BY NON-INSURED FATHER OF AN INSURED DECEDENT AS ADMINISTRATOR OF DECEDENT'S ESTATE; Supreme Court, Erie County granted defendant Allstate Indemnity Corporation's motion for summary judgment declaring that Allstate has no obligation to defend or indemnify its insureds with respect to an underlying personal injury/wrongful death action arising out of the death of an insured person; App. Div. affirmed.

MARRACCINI v RYAN (71 AD3d 1100):
2nd Dept. App. Div. order of 3/30/10; reversal; leave to appeal granted by Court of Appeals, 8/31/10; LICENSES - HOME IMPROVEMENT CONTRACTORS - WHETHER THE APPELLATE DIVISION ERRED IN DETERMINING THAT PLAINTIFF WAS UNLICENSED AS A HOME IMPROVEMENT CONTRACTOR WITHIN THE MEANING OF THE WESTCHESTER COUNTY ADMINISTRATIVE CODE WHERE HE PERFORMED THE WORK AT ISSUE UNDER HIS REAL NAME BUT HAD A HOME IMPROVEMENT LICENSE ISSUED UNDER A TRADE NAME; Supreme Court, Westchester County, as relevant here, denied those branches of defendant John and Pam Ryan's motion which was for summary judgment dismissing the complaint insofar as asserted against them, and to vacate a mechanic's lien and cancel the notice of pendency filed against their property; App. Div. reversed and, as relevant here, (1) granted those branches of the motion by defendants John and Pam Ryan for summary judgment dismissing the complaint insofar as asserted against them and to vacate the mechanic's lien and cancel the notice of pendency filed against their property, and (2) remitted to Supreme Court for the entry of an order directing the Westchester County Clerk to vacate the mechanic's lien and cancel the notice of pendency filed against the Ryan defendants' property.

MURRELL (DOMINIQUE), PEOPLE v (73 AD3d 598):
1st Dept. App. Div. order of 5/20/10; affirmance; leave to appeal granted by Ciparick, J., 9/1/10; CRIMES - SENTENCE - POST-RELEASE SUPERVISION (PRS) - PRS IMPOSED IN JUDGMENT OF RESENTENCE AFTER DEFENDANT HAD SERVED ALL BUT 8 WEEKS OF HIS 10-YEAR PRISON SENTENCE AND AFTER HIS SENTENCE HAD BEEN CONSIDERED PREVIOUSLY BY THE TRIAL COURT AND APPELLATE DIVISION WITH NO MENTION OF PRS - ALLEGED VIOLATION OF DOUBLE JEOPARDY AND DUE PROCESS RIGHTS; Supreme Court, New York County resentenced defendant to concurrent terms of 10 years, with 5 years' post-release supervision; App. Div. affirmed.

PRENDERGAST (JOHN), PEOPLE v (71 AD3d 1055):
2nd Dept. App. Div. order of 3/23/10; affirmance; leave to appeal granted by Graffeo, J., 8/26/10; CRIMES - SENTENCE - POST-RELEASE SUPERVISION (PRS) - PRS IMPOSED UPON RESENTENCE AFTER DEFENDANT SERVED PART OF HIS PRISON SENTENCE AND WHILE HE WAS STILL CONFINED - ALLEGED VIOLATION OF DOUBLE JEOPARDY AND DUE PROCESS RIGHTS; WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT "THE RESENTENCING COURT WAS NOT REQUIRED TO EXERCISE ITS DISCRETION TO CONSIDER WHETHER THE SENTENCE AS A WHOLE WAS APPROPRIATE IN VIEW OF THE FACT THAT THE SENTENCE WOULD NOT INCLUDE A PERIOD OF PRS"; Supreme Court, Queens County resentenced defendant, upon his conviction of robbery in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, to include a mandatory five-year period of post-release supervision; App. Div. affirmed.

RODDY v NEDERLANDER PRODUCING COMPANY OF AMERICA, INC. (73 AD3d 583):
1st Dept. App. Div. order of 5/20/10; affirmance; leave to appeal granted by Court of Appeals, 9/2/10; Rule 500.11 review pending; JUDGMENTS - COLLATERAL ESTOPPEL - LAW OF THE CASE - WHETHER PLAINTIFF DANCER HAD A FULL AND FAIR OPPORTUNITY TO LITIGATE THE ISSUE OF THE NEGLIGENCE OF DEFENDANTS NEDERLANDER PRODUCING COMPANY OF AMERICA, INC. AND THE GERSHWIN THEATRE IN A NEGLIGENCE ACTION TO RECOVER FROM A FALL ON STAGE DURING THE BROADWAY SHOW RIVERDANCE; PRIOR LITIGATION OF THE GERSHWIN THEATRE'S INDEMNIFICATION CLAIM AGAINST THE DANCER'S EMPLOYER; Supreme Court, New York County, in effect, granted renewal and reargument of an order entered 7/22/08 granting the motion of defendants Nederlander Producing Company and the Gershwin Theatre to dismiss the complaint and all cross claims against them, and adhered to the original decision; App. Div. affirmed.

ROSARIO (ANGEL), PEOPLE v (68 AD3d 600):
1st Dept. App. Div. order of 12/22/09; reversal; leave to appeal granted by Read, J., 8/27/10; CRIMES - SEXUAL ABUSE - SEXUAL CONDUCT AGAINST A CHILD - WHETHER NOTE MINOR COMPLAINANT WROTE APPROXIMATELY 3 MONTHS AFTER DEFENDANT'S ALLEGED ABUSE ENDED WAS ADMISSIBLE UNDER THE "PROMPT OUTCRY" EXCEPTION TO THE HEARSAY RULE - ADMISSIBILITY OF COMPLAINANT'S PRIOR CONSISTENT STATEMENT; Supreme Court, New York County convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree, rape in the first and second degrees and incest in the third degree, and sentenced him to an aggregate term of 15 years; App. Div. reversed on the law and remanded for a new trial.

RUEDA, MATTER OF v CHARMAINE D. (76 AD3d 443):
1st Dept. App. Div. order of 8/17/10; affirmance with dissents; sua sponte examination whether this matter is moot; INCAPACITATED AND MENTALLY DISABLED PERSONS - INVOLUNTARY ADMISSION - WHETHER EMERGENCY ROOM PSYCHIATRIST WHO TREATED RESPONDENT PROPERLY APPLIED FOR HER INVOLUNTARY ADMISSION TO A HOSPITAL PURSUANT TO MENTAL HYGIENE LAW § 9.27 WHERE HE COULD HAVE APPLIED FOR SUCH ADMISSION PURSUANT TO MENTAL HYGIENE LAW § 9.39; MOOTNESS - APPLICABILITY OF MOOTNESS EXCEPTION; Supreme Court, Bronx County granted the petition to retain respondent at hospital for involuntary psychiatric care; App. Div. affirmed.

SHIAMILI v THE REAL ESTATE GROUP OF NEW YORK, INC. (68 AD3d 581):
1st Dept. App. Div. order of 12/17/09; reversal; leave to appeal granted by Court of Appeals, 8/31/10; TELECOMMUNICATIONS - INTERNET SERVICES - ACTION FOR DEFAMATION AND UNFAIR COMPETITION BY DISPARAGEMENT BASED ON COMMENTS POSTED ON AN INTERNET WEBSITE - WHETHER THE APPELLATE DIVISION ERRED IN GRANTING DEFENDANTS' MOTION TO DISMISS THE COMPLAINT UPON THE GROUND THAT PLAINTIFF'S CLAIMS WERE BARRED BY THE FEDERAL COMMUNICATIONS DECENCY ACT (CDA) (47 USC § 230) BECAUSE DEFENDANTS WERE NOT "INFORMATION CONTENT PROVIDERS" WITHIN THE MEANING OF THE CDA; Supreme Court, New York County denied defendants' motion to dismiss the complaint as barred by the Federal Communications Decency Act of 1996; App. Div. reversed, granted the motion, dismissed the complaint and directed the Clerk to enter judgment accordingly.

WRIGHT (JASON L.), PEOPLE v (63 AD3d 1700):
4th Dept. App. Div. order of 6/12/09; modification; leave to appeal granted by Jones, J., 8/20/10; CRIMES - CLAIM THAT ROBBERY COUNT WAS DUPLICITOUS BECAUSE DEFENDANT WAS CHARGED WITH STEALING "A BB GUN AND/OR A PAIR OF SNEAKERS" - ALLEGED INEFFECTIVENESS OF TRIAL COUNSEL - THEORY UPON WHICH JURY FOUND DEFENDANT GUILTY - SUFFICIENCY OF THE EVIDENCE SUPPORTING CONVICTION OF ROBBERY IN THE FIRST DEGREE; Supreme Court, Monroe County convicted defendant, upon a jury verdict, of murder in the second degree and robbery in the first degree; App. Div. modified by (1) reducing the conviction of murder in the second degree to manslaughter in the second degree, (2) vacating the sentence imposed on count two of the indictment and (3) vacating the sentence imposed on count four of the indictment; affirmed the judgment as so modified; and remitted to Supreme Court for sentencing on the conviction of manslaughter in the second degree and for resentencing on the conviction of robbery in the first degree.