Return to New Filings Page


For October 2, 2015 through October 8, 2015, the following preliminary appeal statements were filed:

ACME BUS CORP., MATTER OF v ORANGE COUNTY (126 AD3d 688):
2nd Dept. App. Div. order of 3/4/15; affirmance; leave to appeal granted by Court of Appeals, 9/22/15; MUNICIPAL CORPORATIONS - PROCUREMENT - CPLR ARTICLE 78 PROCEEDING TO REVIEW A COUNTY DETERMINATION AWARDING OTHER COMPANIES CONTRACTS TO PROVIDE BUS TRANSPORTATION - WHETHER THE COUNTY ACTED IRRATIONALLY BY FAILING TO FOLLOW THE PROPOSAL EVALUATION PROCEDURES SET FORTH IN ITS REQUEST FOR PROPOSALS; Supreme Court, Orange County, denied the CPLR article 78 petition and dismissed the proceeding; App. Div. affirmed.

BREWER (TIMOTHY), PEOPLE v (129 AD3d 1619):
4th Dept. App. Div. order of 6/19/15; affirmance; leave to appeal granted by Stein, J., 9/25/15; CRIMES - EVIDENCE - DEFENDANT'S SEXUAL PROCLIVITIES - CORROBORATION OF CHILD SEXUAL ASSAULT VICTIMS' TESTIMONY - WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING THE PEOPLE'S MOLINEUX APPLICATION TO ALLOW EVIDENCE AT TRIAL OF DEFENDANT'S DRUG USE AND SEXUAL PROCLIVITIES; Supreme Court, Monroe County, convicted defendant, upon a jury verdict, of two counts of predatory sexual assault against a child and two counts of sexual abuse in the first degree; App. Div. affirmed.

McDERMOTT, MATTER OF v ANNUCCI (128 AD3d 1258):
3rd Dept. App. Div. judgment of 5/21/15; confirmed determination and dismissed petition; leave to appeal granted by Court of Appeals, 9/22/15; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - WHETHER PRISONER WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO AN IMPARTIAL HEARING OFFICER WHERE THE HEARING OFFICER WAS THE WIFE OF THE CORRECTIONS OFFICER WHO AUTHORED THE MISBEHAVIOR REPORT - WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE DETERMINATION OF GUILT WITH RESPECT TO USE OF AN INTOXICANT AND SMUGGLING THE INTOXICANT INTO THE FACILITY - WHETHER THE PRISONER'S GUILTY PLEA WAS ENTERED INTO KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY; App. Div. confirmed determination of Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules, and dismissed the petition.

NEWMAN v RCPI LANDMARK PROPERTIES (124 AD3d 551):
1st Dept. App. Div. order of 1/29/15; reversal; leave to appeal granted by Court of Appeals, 9/17/15; NEGLIGENCE - PROXIMATE CAUSE - WHETHER THE APPELLATE DIVISION ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS ON THE GROUND THAT PLAINTIFF'S CHOICE TO USE STACKED MILK CRATES TO CLIMB DOWN FROM A LOADING DOCK, RATHER THAN A LADDER, WAS THE SOLE PROXIMATE CAUSE OF HIS INJURIES; Supreme Court, New York County, denied defendants' motion for summary judgment dismissing the complaint; App. Div. reversed, granted the motion for summary judgment dismissing the complaint, and directed the Clerk to enter judgment accordingly.

OCASIO (ALEXIS), PEOPLE v (48 Misc 3d 127(A)):
App. Term, 1st Dept. order of 6/19/15; affirmance; leave to appeal granted by Stein, J., 9/22/15; CRIMES - CRIMINAL POSSESSION OF A WEAPON IN THE FOURTH DEGREE - SUFFICIENCY OF ACCUSATORY INSTRUMENT - WHETHER A "RUBBER-GRIPPED, METAL, EXTENDABLE BATON" IS A "BILLY" FOR PURPOSES OF PENAL LAW § 265.01(1); Criminal Court of the City of New York, Bronx County, granted defendant's motion to dismiss the accusatory instrument for facial insufficiency; App. Term affirmed.

WARRINGTON (BRANDON), PEOPLE v (130 AD3d 1368):
3rd Dept. App. Div. order of 7/30/15; reversal; leave to appeal granted by Devine, J., 9/22/15; CRIMES - JURORS - SELECTION OF JURY - WHETHER TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS PROSPECTIVE JUROR NO. 383 FOR CAUSE - WHETHER TRIAL COURT ELICITED A "PERSONAL, UNEQUIVOCAL ASSURANCE OF IMPARTIALITY" AFTER JUROR NO. 383 VOLUNTEERED A DIFFICULTY BEING FAIR IN THE TRIAL INVOLVING A FIVE-YEAR-OLD VICTIM; County Court, Warren County, convicted defendant, upon a jury verdict, of murder in the second degree, manslaughter in the second degree and endangering the welfare of a child; App. Div. reversed and remitted the matter to County Court for a new trial.

For October 9, 2015 through October 15, 2015, the following preliminary appeal statements were filed:

COOK (WILLIAM), PEOPLE v (128 AD3d 927):
2nd Dept. App. Div. order of 5/20/15; affirmance; leave to appeal granted by Court of Appeals, 10/20/15; CRIMES - SEX OFFENDERS - SEX OFFENDER REGISTRATION ACT (SORA) - WHETHER THE SORA HEARING COURT ERRED IN ASSESSING DEFENDANT 20 POINTS UNDER RISK FACTOR 7 FOR ESTABLISHING OR PROMOTING A RELATIONSHIP WITH THE VICTIMS FOR THE PRIMARY PURPOSE OF VICTIMIZATION WHERE DEFENDANT KNEW AT LEAST THREE OF THE VICTIMS "THROUGH HIS LONGSTANDING FRIENDSHIP WITH THEIR PARENTS" - EFFECT OF FAMILY-LIKE RELATIONSHIP WITH VICTIMS; Supreme Court, Richmond County, after a hearing, designated defendant a level three sex offender pursuant to Correction Law article 6-C; App. Div. affirmed.

CROOKS (DAYSHAWN), PEOPLE v (129 AD3d 1207):
3rd Dept. App. Div. order of 6/11/15; affirmance; leave to appeal granted by Fahey, J., 9/28/15; CRIMES - INFORMERS - WHETHER THE COURTS BELOW CORRECTLY CONCLUDED THAT A DARDEN HEARING WAS NOT NECESSARY ON THE GROUND THAT THE POLICE SURVEILLANCE OF TWO CONTROLLED DRUG TRANSACTIONS BETWEEN THE CONFIDENTIAL INFORMANT AND DEFENDANT PROVIDED PROBABLE CAUSE FOR A SEARCH WARRANT INDEPENDENT OF ANY STATEMENTS THE CONFIDENTIAL INFORMANT MADE TO THE POLICE; County Court, Albany County, convicted defendant, after a jury trial, of two counts of criminal possession of a controlled substance in the third degree, and imposed sentence; App. Div. affirmed.

LEIGHT v W7879 LLC (128 AD3d 417):
1st Dept. App. Div. order of 5/5/15; reversal; leave to appeal granted by App. Div., 7/14/15; Rule 500.11 review pending; LANDLORD AND TENANT - RENT REGULATION - WHETHER PLAINTIFFS ARE ENTITLED TO A DECLARATORY JUDGMENT THAT THEIR APARTMENTS ARE RENT-STABILIZED - AFTER DEREGULATION ORDER, DID PLAINTIFFS' APARTMENTS BECOME SUBJECT TO RENT REGULATION AGAIN BY VIRTUE OF LANDLORD'S ONGOING RECEIPT OF J-51 BENEFITS; WHETHER DEREGULATION ORDER WAS VOID DUE TO LANDLORD'S ONGOING RECEIPT OF J-51 BENEFITS; COLLATERAL ESTOPPEL; Supreme Court, New York County, among other things, denied defendants' motion to dismiss with respect to plaintiffs Masten and Wiest; App. Div. reversed, vacated the judgment, granted defendants' motion to dismiss as to plaintiffs Masten and Wiest, declared that the apartments of plaintiffs Masten and Wiest are not rent-stabilized, and directed the clerk to enter judgment accordingly.

STEPHENS (HARVERT), PEOPLE v (128 AD3d 1497):
4th Dept. App. Div. order of 5/8/15; affirmance; leave to appeal granted by Rivera, J., 10/5/15; CONSTITUTIONAL LAW - VALIDITY OF ORDINANCE - WHETHER A SYRACUSE NOISE CONTROL ORDINANCE WAS UNCONSTITUTIONALLY VAGUE UNDER PEOPLE v NEW YORK TRAP ROCK CORP. (57 NY2d 371 [1982]); Supreme Court, Onondaga County, convicted defendant, upon a nonjury verdict, of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree, and sound reproduction, and imposed sentence; App. Div. affirmed.

VALENTIN (CARLOS), PEOPLE v (128 AD3d 428):
1st Dept. App. Div. order of 5/7/15; reversal; leave to appeal granted by Saxe, J., 10/15/15; CRIMES - JUSTIFICATION - INITIAL AGGRESSOR EXCEPTION TO JUSTIFICATION DEFENSE (PENAL LAW § 35.15 [1][b]) - WHETHER THE TRIAL COURT ERRED IN INCLUDING IN THE JURY CHARGE THE INITIAL AGGRESSOR EXCEPTION TO THE JUSTIFICATION DEFENSE - TESTIMONY RAISING AN ISSUE OF FACT AS TO WHETHER DEFENDANT WAS THE FIRST TO USE, OR THREATEN TO USE, DEADLY PHYSICAL FORCE - DEFENDANT SHOT VICTIM SWINGING A MOP HANDLE; Supreme Court, Bronx County, convicted defendant, after a jury trial, of manslaughter in the first degree, and sentenced him, as a second felony offender, to a term of 20 years; App. Div. reversed, and remanded the matter for a new trial.