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For January 1, 2016 through January 7, 2016, the following preliminary appeal statements were filed:

ANDUJAR (JOHN), PEOPLE v (49 Misc 3d 36):
App. Term, 1st Dept. order of 8/14/15; reversal; leave to appeal granted by Fahey, J., 12/16/15; CRIMES - ACCUSATORY INSTRUMENT - WHETHER VEHICLE AND TRAFFIC LAW § 397 APPLIES ONLY TO A POLICE SCANNER OR RADIO RECEIVING SET THAT IS ATTACHED TO THE MOTOR VEHICLE OR APPLIES TO SUCH A DEVICE CARRIED IN THE DRIVER'S CLOTHING WHILE DRIVING A MOTOR VEHICLE - DEFINITION OF "EQUIP" AS WORD IS USED IN STATUTE; New York City Criminal Court, Bronx County, granted defendant's motion to dismiss the accusatory instrument for facial insufficiency; App. Term reversed, reinstated the accusatory instrument and remanded the matter for further proceedings.

GARVIN (SEAN), PEOPLE v (130 AD3d 644):
2nd Dept. App. Div. order of 7/1/15; affirmance; leave to appeal granted by Hall, J., 12/9/15; Rule 500.11 review pending; CRIMES - ARREST - WHETHER DEFENDANT'S WARRANTLESS ARREST VIOLATED PAYTON v NEW YORK (445 US 573), WHERE DEFENDANT LIVED IN THE UPSTAIRS APARTMENT OF A BUILDING CONTAINING TWO SEPARATE APARTMENTS AND WAS ARRESTED IN THE DOORWAY TO HIS APARTMENT AFTER HE OPENED THE DOOR IN RESPONSE TO A KNOCK BY A POLICE OFFICER; ALLEGED VIOLATION OF DEFENDANT'S RIGHT TO REMAIN SILENT; ALLEGED VIOLATION OF APPRENDI v NEW JERSEY (530 US 466) BY DEFENDANT'S SENTENCING AS A PERSISTENT FELONY OFFENDER; Supreme Court, Queens County, convicted defendant, after a nonjury trial, of four counts of robbery in the third degree, and imposed sentence; App. Div. affirmed.

GAYDEN (JOHN), PEOPLE v (126 AD3d 1518):
4th Dept. App. Div. order of 3/27/14; affirmance; leave to appeal granted by Lippman, Ch.J., 12/28/15; CRIMES - SUPPRESSION HEARING - WHETHER TRIAL COURT ERRED IN REFUSING TO SUPPRESS THE GUN DEFENDANT DISCARDED WHILE HE WAS BEING PURSUED BY THE POLICE - WHETHER RADIO DISPATCH BASED ON AN ANONYMOUS TIP PROVIDED BASIS FOR REASONABLE SUSPICION OF CRIMINAL ACTIVITY WARRANTING PURSUIT OF DEFENDANT; County Court, Monroe County, convicted defendant, upon his guilty plea, of two counts of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree; App. Div. affirmed.

GEORGETOWN UNSOLD SHARES, LLC, MATTER OF v LEDET (130 AD3d 99):
2nd Dept. App. Div. order of 6/17/15; reversal; leave to appeal granted by App. Div., 12/3/15; Rule 500.11 review pending; LANDLORD AND TENANT - RENT REGULATION - PRIMARY RESIDENCE - WHETHER A LANDLORD'S ACCEPTANCE OF UNSOLICITED RENT IN THE PERIOD BETWEEN THE EXPIRATION DATE OF LEASE AND THE COMMENCEMENT OF A HOLDOVER PROCEEDING NULLIFIES THE LANDLORD'S PREVIOUS SERVICE OF NOTICE OF INTENTION NOT TO RENEW THE LEASE; Civil Court of City of New York, Queens County, denied petitioner landlord's motion for leave to conduct discovery and thereupon to compel tenant to produce certain documents, and granted respondent tenant's cross motion to dismiss the petition insofar as asserted against her; App. Term for the 2nd, 11th and 13th Judicial Districts affirmed; App. Div. reversed, denied tenant's cross motion to dismiss the petition, and granted landlord's motion for leave to conduct discovery and thereupon to compel tenant to produce requested documents.

GLATZER v MICHAEL F. HANLEY MOVING & STORAGE, INC. (2015 NY Slip Op 83741[U]):
1st Dept. App. Div. order of 9/8/15; denied motion to transfer appeals; sua sponte examination of whether the order appealed from finally determines the action within the meaning of the Constitution, whether a substantial constitutional question is directly involved to support an appeal as of right pursuant to CPLR 5601(b)(1), and whether any basis exists for an appeal as of right pursuant to CPLR 5601(d); MOTIONS AND ORDERS - CHALLENGE TO APPELLATE DIVISION ORDER THAT DENIED SO MUCH OF PLAINTIFF'S MOTION AS SOUGHT AN ORDER TRANSFERRING HIS APPEALS TO ANOTHER APPELLATE DIVISION DEPARTMENT; App. Div. granted so much of plaintiff's motion as sought an enlargement of time to perfect appeals from four orders of Supreme Court, Bronx County, entered on or about 3/20/14 and 3/31/14, and denied so much of plaintiff's motion as sought an order transferring the appeals to the App. Div., 2nd Dept.

HENNEL, MATTER OF (133 AD3d 1120):
3rd Dept. App. Div. order of 11/25/15; affirmance with a two-Justice dissent; sua sponte examination of whether the order appealed from finally determines the proceeding within the meaning of the Constitution; CONTRACTS - AGREEMENT TO SATISFY MORTGAGE OUT OF ESTATE ASSETS - WHETHER THE APPELLATE DIVISION CORRECTLY HELD THAT, ALTHOUGH DECEDENT REVOKED PRIOR WILL DIRECTING ESTATE TO PAY MORTGAGE ON PROPERTY HE TRANSFERRED BY DEED TO HIS GRANDCHILDREN, GRANDCHILDREN ESTABLISHED THEIR CLAIM AGAINST THE ESTATE FOR PAYMENT OF THE MORTGAGE BASED UPON THE DOCTRINE OF PROMISSORY ESTOPPEL, AND THAT THE ESTATE WAS ESTOPPED FROM INVOKING THE STATUTE OF FRAUDS DEFENSE BECAUSE APPLICATION OF THAT DEFENSE WOULD CREATE AN UNCONSCIONABLE RESULT; Surrogate's Court, Schenectady County, in a proceeding pursuant to SCPA 1809, granted petitioners' motion for summary judgment to the extent of determining that their claim against the Estate was valid and enforceable, directed the Executor of the Estate to satisfy petitioners' claim from the assets of the Estate in the amount of the outstanding balance of the mortgage on property conveyed by deed from decedent to petitioners, and to reimburse petitioners the total amount of mortgage payments they paid since decedent's death, with statutory interest; denied petitioners' request for attorneys' fees; and denied the Executor's cross motion for summary judgment; App. Div. affirmed.

PRINDLE (MICHAEL E.), PEOPLE v (129 AD3d 1506):
4th Dept. App. Div. order of 6/12/15; affirmance; leave to appeal granted by Lippman, Ch.J., 12/28/15; CRIMES - SENTENCE - PERSISTENT FELONY OFFENDER - WHETHER THE INCREASE IN DEFENDANT'S PRESCRIBED MINIMUM TERM BASED ON HIS ADJUDICATION AS A PERSISTENT FELONY OFFENDER AND A JUDICIAL FINDING THAT "THE HISTORY AND CHARACTER OF THE DEFENDANT AND THE NATURE AND CIRCUMSTANCES OF HIS CRIMINAL CONDUCT ARE SUCH THAT EXTENDED INCARCERATION AND LIFETIME SUPERVISION OF THE DEFENDANT ARE WARRANTED TO BEST SERVE THE PUBLIC INTEREST" (PENAL LAW § 70.10[2]) CONSTITUTES AN INCREASE IN THE PRESCRIBED MINIMUM PREDICATED ON NON-JURY FINDINGS IN VIOLATION OF APPRENDI v NEW JERSEY (530 US 466 [2000]) OR ALLEYN v UNITED STATES (— US —, 133 S Ct 2151 [2013]); CHALLENGE TO CONSTITUTIONALITY OF PENAL LAW § 70.10 AND CPL 400.20; Supreme Court, Monroe County, upon remittal from Court of Appeals, adjudicated defendant a persistent felony offender and resentenced him to an indeterminate term of imprisonment of 15 years to life; App. Div. affirmed.

SPARKS (YUSUF), PEOPLE v (132 AD3d 513):
1st Dept. App. Div. order of 10/15/15; affirmance; leave to appeal granted by Pigott, J., 12/23/15; CRIMES - JUSTIFICATION - WHETHER THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON DEFENDANT'S ASSERTED JUSTIFICATION DEFENSE; DEFENDANT'S TESTIMONY - WHETHER THE TRIAL COURT ERRED IN PERMITTING THE PEOPLE TO CROSS EXAMINE DEFENDANT REGARDING A PRIOR, UNRELATED ROBBERY CONVICTION; Supreme Court, New York County, convicted defendant, after a jury trial, of assault in the second degree, and sentenced him, as a second violent felony offender, to a term of 7 years; App. Div. affirmed.

For January 8, 2016 through January 14, 2016, the following preliminary appeal statements were filed:

BOONE (OTIS), PEOPLE v (129 AD3d 1099):
2nd Dept. App. Div. order of 6/24/15; modification; leave to appeal granted by Rivera, J., 12/22/15; CRIMES - IDENTIFICATION OF DEFENDANT - WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A JURY INSTRUCTION ON CROSS-RACIAL IDENTIFICATIONS; Supreme Court, Kings County, convicted defendant, upon a jury verdict, of two counts of robbery in the first degree, and sentenced him to consecutive determinate terms of imprisonment of 10 years and 15 years, respectively, followed by periods of postrelease supervision; App. Div. modified by reducing the determinate terms of imprisonment imposed on the convictions of robbery in the first degree from 10 years and 15 years to 5 years and 10 years, respectively, and affirmed the judgment as so modified.

CARRION v FAULKNER (129 AD3d 456):
1st Dept. App. Div. order of 6/9/15; affirmance; leave to appeal granted by Court of Appeals, 12/17/15; Rule 500.11 review pending; NEGLIGENCE - MAINTENANCE OF PREMISES - TRIP AND FALL ON MARBLE STAIRS DUE TO ALLEGED "WORN AND ROUNDED" CONDITION OF MARBLE STEP - WHETHER SUMMARY JUDGMENT WAS PROPERLY GRANTED TO DEFENDANT UPON THE GROUND THAT, AS A MATTER OF LAW, THE WEAR ON THE STEP WAS A TRIVIAL DEFECT AND NOT ACTIONABLE; Supreme Court, Bronx County, granted defendant's motion for summary judgment dismissing the complaint; App. Div. affirmed.

CARTER, PEOPLE ex rel. v SMITH (134 AD3d 1338):
3rd Dept. App. Div. order of 12/17/15; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; HABEAS CORPUS - WHEN REMEDY AVAILABLE; DUE PROCESS CLAIMS; Supreme Court, Greene County, dismissed petitioner's application for a writ of habeas corpus in a proceeding pursuant to CPLR article 70; App. Div. affirmed.

GLASS, MATTER OF v NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES APPEALS BOARD:
Supreme Court, Albany County, judgment of 12/3/15; denial of motion; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether any basis exists for an appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - CERTIORARI - CPLR ARTICLE 78 PROCEEDING TO CHALLENGE A DETERMINATION OF RESPONDENT NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES APPEALS BOARD AFFIRMING A PRIOR DETERMINATION FINDING PETITIONER GUILTY OF VIOLATING THE VEHICLE AND TRAFFIC LAW; CLAIMED DUE PROCESS VIOLATIONS; STATUTE OF LIMITATIONS; Supreme Court denied petitioner's motion to extend the statute of limitations for commencement of a CPLR article 78 proceeding.

JACKSON (THOMAS), PEOPLE v (128 AD3d 1181):
3rd Dept. App. Div. order of 5/14/15; affirmance; leave to appeal granted by Lippman, Ch.J., 12/28/15; CRIMES - PROOF OF PRIOR CONVICTIONS - WHETHER THE APPELLATE DIVISION ERRED IN CONCLUDING THAT SANDOVAL ERROR BY SUPREME COURT IN ALLOWING CROSS EXAMINATION REGARDING DEFENDANT'S JUVENILE DELINQUENCY ADJUDICATION WAS HARMLESS; RIGHT TO BE PRESENT AT TRIAL - VALIDITY OF DEFENDANT'S WAIVER TO BE PRESENT AT SIDEBAR CONFERENCES; Supreme Court, Schenectady County, upon a jury verdict, convicted defendant of predatory sexual assault and criminal sexual assault in the first degree, and imposed sentence; App. Div. affirmed.

LEONARD (RICHARD M.), PEOPLE v (129 AD3d 1592; 129 AD3d 1596):
4th Dept. App. Div. orders of 6/19/15; affirmances; leave to appeal granted by Lippman, Ch.J., 12/29/15; CRIMES - RIGHT TO COUNSEL - TRIAL STRATEGY - DEFENSE COUNSEL'S FAILURE TO USE WITNESS'S PRIOR, ALLEGEDLY INCONSISTENT STATEMENTS AT TRIAL AND TO REQUEST LIMITING INSTRUCTION REGARDING PROOF OF UNCHARGED CRIME ALLEGEDLY COMMITTED AGAINST THE SAME COMPLAINANT; CHALLENGE TO DENIAL OF CPL 440 MOTION WITHOUT A HEARING UPON THE GROUND THAT TRIAL COUNSEL WAS DECEASED AND WAS THE ONLY PERSON WHO COULD HAVE PROVIDED ANY MATERIAL INFORMATION NOT ALREADY BEFORE THE COURT; PROOF OF OTHER CRIMES - ALLEGED MOLINEUX VIOLATION - WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING TESTIMONY REGARDING PRIOR UNCHARGED CRIME OF SEXUAL ABUSE OF VICTIM WHILE UNCONSCIOUS AS PROBATIVE OF DEFENDANT'S MOTIVE AND INTENT AND AS PROVIDING NECESSARY BACKGROUND INFORMATION; County Court, Monroe County, convicted defendant, upon a jury verdict, of sexual abuse in the first degree and unlawfully dealing with a child in the first degree; thereafter, County Court denied defendant's CPL 440.10 motion to vacate the judgment of conviction; App. Div. affirmed in separate orders.

RETAMOZZO v FRIEDLAND (2015 NY Slip Op 88147[U]):
1st Dept. App. Div. order of 10/22/15; denial of motion; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; MOTIONS AND ORDERS - APPELLATE DIVISION ORDER DENYING PLAINTIFF'S MOTION FOR REARGUMENT OR LEAVE TO APPEAL TO THE COURT OF APPEALS FROM AN APPELLATE DIVISION ORDER THAT DENIED PLAINTIFF'S MOTION TO VACATE AN ORDER AND ENSUING JUDGMENT DISMISSING THE VERIFIED AMENDED COMPLAINT AS A SANCTION FOR WILFULLY REFUSING TO COMPLY WITH DISCOVERY ORDERS; Supreme Court, New York County, denied plaintiff's motion to vacate an order and ensuing judgment dismissing plaintiff's verified amended complaint as a sanction for willfully refusing to comply with discovery orders; App. Div. affirmed and thereafter denied plaintiff's motion for reargument or leave to appeal to the Court of Appeals.

SCHULMAN v MILLER (134 AD3d 616):
1st Dept. App. Div. order of 12/29/15; affirmance with a two-Justice dissent; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution; PARENT, CHILD AND FAMILY - SUPPORT - EFFECT OF EMANCIPATION OF ONE CHILD ON FATHER'S UNALLOCATED SUPPORT OBLIGATION FOR TWO CHILDREN - INTERPRETATION OF PROVISIONS OF PARTIES' STIPULATION OF SETTLEMENT; COUNSEL FEES; Supreme Court, New York County, as relevant here, denied plaintiff's motions for a declaration that the parties' older child was emancipated upon ceasing to be a full-time student at age 21, or, alternatively, that she would be emancipated on her 22nd birthday in December 2014, and a recomputation of his support obligations accordingly, and to compel financial disclosure by defendant, and granted defendant's motion to direct plaintiff to resume payment of all basic child support and add-on expenses pursuant to the parties' stipulation of settlement, and reserved decision on defendant's application for counsel fees pending her submission of an affidavit in support thereof; App. Div. affirmed.

SIVERTSON (SHAWN J.), PEOPLE v (129 AD3d 1467):
4th Dept. App. Div. order of 6/12/15; affirmance; leave to appeal granted by Lippman, Ch.J., 12/28/15; CRIMES - UNLAWFUL SEARCH AND SEIZURE - WARRANTLESS ENTRY INTO RESIDENCE - WHETHER EXIGENT CIRCUMSTANCES JUSTIFIED THE WARRANTLESS ENTRY INTO DEFENDANT'S APARTMENT WHERE THE SUBJECT WEAPON WAS A KNIFE, NOT A GUN; RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - WHETHER TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO CERTAIN COMMENTS MADE BY THE PROSECUTOR DURING SUMMATION, INCLUDING THAT DEFENDANT'S SILENCE UPON HIS ARREST EVIDENCED HIS GUILT; Supreme Court, Erie County, convicted defendant, upon a jury verdict, of robbery in the first degree; App. Div. affirmed.

For January 15, 2016 through January 21, 2016, the following preliminary appeal statements were filed:

CARNEY, MATTER OF v NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES (133 AD3d 1150):
3rd Dept. App. Div. order of 11/25/15; modification with a two-Justice dissent; MOTOR VEHICLES - OPERATOR'S LICENSE - APPLICATION FOR NEW LICENSE AFTER LICENSE REVOCATION FOR ALCOHOL-RELATED DRIVING OFFENSE - NEW REGULATIONS ADOPTED DURING REVIEW OF PETITIONER'S APPLICATION FOR RELICENSING OF PERSONS WITH MULTIPLE ALCOHOL-OR-DRUG-RELATED DRIVING OFFENSES (15 NYCRR 136.5[b][1]) - WHETHER THE REGULATORY IMPOSITION OF A PERMANENT LIFETIME BAN AGAINST A DRIVER WITH FIVE OR MORE ALCOHOL-RELATED CONVICTIONS DURING HIS LIFETIME EXCEEDS THE COMMISSIONER'S ADMINISTRATIVE AUTHORITY; Supreme Court, Albany County, dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, review a determination of respondent Department of Motor Vehicles denying petitioner's application for a driver's license; App. Div. modified by partially converting the matter to a declaratory judgment action, and declared that petitioner has not shown 15 NYCRR 136.5(b)(1) to be invalid.

ISAAC, MATTER OF v LEWIN (2015 NY Slip Op 93302[U]):
3rd Dept. App. Div. order of 12/9/15; denial of application; sua sponte examination whether a substantial constitutional question is directly involved or any other basis exists to support an appeal as of right; HABEAS CORPUS - CHALLENGE TO APPELLATE DIVISION ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS; App. Div. denied petitioner's application for a writ of habeas corpus.

LEND LEASE (US) CONSTRUCTION LMB, INC. v ZURICH AMERICAN INSURANCE COMPANY (136 AD3d 52):
1st Dept. App. Div. order of 12/22/15; modification with a two-Justice dissent; INSURANCE - BUILDER'S RISK POLICY - IN THIS BREACH OF CONTRACT AND DECLARATORY JUDGMENT ACTION, WHETHER THE APPELLATE DIVISION CORRECTLY HELD AS A MATTER OF LAW THAT TOWER CRANE AFFIXED TO BUILDING FOR USE IN THE PERFORMANCE OF CONSTRUCTION WORK WAS NOT "COVERED PROPERTY" BECAUSE IT DID NOT FALL WITHIN THE POLICY'S DEFINITION OF "TEMPORARY WORKS," AND THAT, EVEN IF THE CRANE WAS "COVERED PROPERTY," IT WAS EXCLUDED FROM COVERAGE UNDER THE POLICY'S CONTRACTOR'S TOOLS, MACHINERY, PLANT AND EQUIPMENT EXCLUSION; Supreme Court, New York County, denied plaintiffs' respective motions and defendants' cross motions for summary judgment; App. Div. modified to grant defendants' cross motions for summary judgment and declare that defendants have no obligation to provide coverage under the builder's risk policy, and otherwise affirmed.

OYAGUE, PEOPLE ex rel.v RACETTE (2015 NY Slip Op 87648[U]):
3rd Dept. App. Div. order of 10/15/15; denial of writ of habeas corpus; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; HABEAS CORPUS - WHETHER THE APPELLATE DIVISION ERRED IN DENYING THE PETITION SEEKING A WRIT OF HABEAS CORPUS; App. Div. denied petitioner's application for a writ of habeas corpus.

VINING (GREGORY), PEOPLE v (126 AD3d 623):
1st Dept. App. Div. order of 3/26/15; modification; leave to appeal granted by Lippman, Ch.J., 12/29/15; EVIDENCE - ADMISSION AGAINST INTEREST - ADMISSION BY SILENCE - WHETHER A RECORDING OF A PHONE CALL PLACED BY DEFENDANT FROM PRISON TO COMPLAINANT, IN WHICH DEFENDANT WAS SILENT IN THE FACE OF COMPLAINANT'S ACCUSATION OF PHYSICAL ABUSE, WAS PROPERLY ADMITTED AGAINST DEFENDANT AS AN ADOPTIVE ADMISSION BY SILENCE; CLAIMED VIOLATION OF CONSTITUTIONAL RIGHTS; Supreme Court, New York County, convicted defendant, after a jury trial, of attempted assault in the third degree, assault in the third degree, criminal mischief in the fourth degree, and criminal trespass in the second degree, and sentenced him to an aggregate term of 2 years; App. Div. modified to the extent of vacating the attempted assault conviction and dismissing that count of the indictment, and otherwise affirmed.

WAGNER, MATTER OF:
4th Dept. App. Div. order of 12/29/15; denial of motion; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution and whether a substantial constitutional question is directly involved to support an appeal as of right; APPEAL - CHALLENGE TO APPELLATE DIVISION ORDER DENYING MOTION TO SETTLE THE RECORD FROM A PROCEEDING IN SURROGATE'S COURT UPON THE GROUND THAT PETITIONER FAILED TO DEMONSTRATE THE EXISTENCE OF A VIABLE APPEAL; App. Div. denied petitioner's motion to settle the record from a proceeding in Seneca County Surrogate's Court.