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For February 5, 2010 through February 11, 2010, the following preliminary appeal statements were filed:

BOSCIC (DRAGAN), PEOPLE v (24 Misc3d 1227[A], 2009 NY Slip Op 51649[U]):
Sullivan County Court order of 7/30/09; reversal; leave to appeal granted by Pigott, J., 1/22/10; CRIMES - MOTOR VEHICLES - OPERATING VEHICLE WHILE UNDER INFLUENCE OF ALCOHOL OR DRUGS - DRIVING WHILE ABILITY IMPAIRED (VEHICLE AND TRAFFIC LAW § 1192[1]) - WHETHER THE PEOPLE MUST PRODUCE EVIDENCE THAT BREATHALYZER WAS CALIBRATED WITHIN SIX MONTHS PRIOR TO ITS USE BEFORE THE RESULTS OF A BREATHALYZER TEST CAN BE ADMITTED INTO EVIDENCE; WHETHER COUNTY COURT PROPERLY CONSIDERED ON APPEAL A BREATH TEST OPERATOR GUIDE THAT WAS NOT INTRODUCED AS EVIDENCE AT TRIAL; Town of Bethel Justice Court convicted defendant, after a bench trial, of driving while ability impaired (alcohol); Sullivan County Court reversed and dismissed all charges.

YUN TUNG CHOW v RECKITT & COLMAN, INC. (69 AD3d 413):
1st Dept. App. Div. order of 1/5/10; affirmance with dissents; sua sponte examination whether the order appealed from finally determines the action within the meaning of the Constitution; PRODUCTS LIABILITY - DEFECTIVELY DESIGNED PRODUCT - CHALLENGE TO APPELLATE DIVISION ORDER HOLDING THAT PLAINTIFFS FAILED TO RAISE A TRIABLE ISSUE OF FACT AS TO WHETHER A LYE-BASED DRAIN CLEANER WAS DEFECTIVELY DESIGNED; Supreme Court, Bronx County granted summary judgment dismissing the complaint and any cross claims against defendants Reckitt & Colman, Inc., Reckitt Benckiser, Inc. and Malco Products, Inc.; App. Div. affirmed.

CUMMINGS (ELIJAH), PEOPLE v (66 AD3d 571):
1st Dept. App. Div. order of 10/22/09; affirmance; leave to appeal granted by Graffeo, J., 1/28/10; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR DISMISSAL OF THE SECOND DEGREE BURGLARY COUNT BASED ON THE ARGUMENT THAT A POLICE STATION DOES NOT CONSTITUTE A "DWELLING" UNDER PENAL LAW § 140.25(2) - POLICE STATION CONTAINING DORM ROOM; WHETHER TRIAL COURT ERRED IN PERMITTING CROSS-EXAMINATION OF DEFENDANT ABOUT A PRIOR ROBBERY AND ATTEMPTED ROBBERY CONVICTION; ALLEGED PROSECUTORIAL MISCONDUCT; Supreme Court, New York County convicted defendant, after a jury trial, of burglary in the second degree and two counts of criminal possession of a weapon in the third degree, and sentenced him, as a persistent violent felony offender, to an aggregate term of 20 years to life; App. Div. affirmed.

JACKSON v STATE OF NEW YORK (2010 NY Slip Op 60312[U]):
3rd Dept. App. Div. order of 1/4/10; denial of motion; 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 to support an appeal as of right; MOTIONS - CHALLENGE TO APPELLATE DIVISION ORDER DENYING A MOTION TO REOPEN A PRIOR MOTION FOR DEFAULT JUDGMENT; App. Div. denied motion to reopen prior motion for default judgment.

TUNG v CHIU (2009 NY Slip Op 91280[U]):
1st Dept. App. Div. order of 12/15/09; grant 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; PHYSICIANS AND SURGEONS - DENTISTS - MALPRACTICE; APPEAL - APPELLATE DIVISION GRANT OF MOTION TO COMPEL APPELLANT TO POST AN UNDERTAKING FOR SUMS OF JUDGMENTS ENTERED AGAINST HIM - CPLR 6312(b); App. Div. granted defendant's motion for an order compelling plaintiff to post an undertaking for sums of judgments entered against him.



For February 12, 2010 through February 18, 2010, the following preliminary appeal statements were filed:

CAMPBELL (WILLIAM), PEOPLE v (66 AD3d 590):
1st Dept. App. Div. order of 10/29/09; affirmance; leave to appeal granted by Pigott, J., 2/5/10; CRIMES - RIGHT TO PUBLIC TRIAL - CLOSURE OF COURTROOM - TRIAL COURT EXCLUDED TWO MEMBERS OF DEFENDANT'S FAMILY FROM THE COURTROOM DURING THE TESTIMONY OF AN UNDERCOVER POLICE OFFICER - FAMILY MEMBERS LIVED IN THE "ROUGH VICINITY" WHERE THE UNDERCOVER OFFICER WORKED; SUFFICIENCY OF EVIDENCE; Supreme Court, New York County convicted defendant of criminal sale of a controlled substance in the third degree; App. Div. affirmed.

MUHAMMAD (SHAHID), PEOPLE v (66 AD3d 1332):
4th Dept. App. Div. order of 10/2/09; affirmance; leave to appeal granted by Lippman, Ch.J., 1/27/10; CRIMES - VERDICT - WHETHER JURY VERDICT FINDING DEFENDANT GUILTY OF ASSAULT IN THE FIRST DEGREE IN CONNECTION WITH THE USE OF A WEAPON WHILE SIMULTANEOUSLY FINDING DEFENDANT NOT GUILTY OF CRIMINAL POSSESSION OF A WEAPON IS REPUGNANT; EXPERT WITNESS - DENIAL OF DEFENDANT'S REQUEST TO PRESENT EXPERT TESTIMONY ON THE RELIABILITY OF EYEWITNESS IDENTIFICATION; Supreme Court, Erie County convicted defendant, upon a jury verdict, of assault in the first degree; App. Div. affirmed.

PORTO (WILLIAM), PEOPLE v (66 AD3d 430):
1st Dept. App. Div. order of 10/6/09; affirmance; leave to appeal granted by Pigott, J., 2/5/10; CRIMES - RIGHT TO COUNSEL - CHALLENGE TO APPELLATE DIVISION ORDER CONCLUDING THAT THE TRIAL "COURT PROPERLY DENIED DEFENDANT'S DAY-OF-TRIAL MOTION FOR ASSIGNMENT OF NEW COUNSEL SINCE HIS PAPERS LACKED SPECIFIC FACTUAL ALLEGATIONS AND DID NOT CONTAIN ANY SERIOUS COMPLAINT REQUIRING INQUIRY BY THE COURT" AND BECAUSE "THE COURT ENGAGED IN A COLLOQUY WITH DEFENSE COUNSEL THAT DID NOT REVEAL ANY REASON FOR SUBSTITUTION OR FURTHER INQUIRY"; Supreme Court, New York County convicted defendant of burglary in the second degree; App. Div. affirmed.

WAGGONER v CARUSO (68 AD3d 1):
1st Dept. App. Div. order of 9/29/09; affirmance; leave to appeal granted by App. Div., 1/26/10; Rule 500.11 review pending; ATTORNEY AND CLIENT - MALPRACTICE - WHETHER THE COMPLAINT STATED A CAUSE OF ACTION FOR LEGAL MALPRACTICE AND WHETHER THE APPELLATE DIVISION IMPROPERLY APPLIED A SUMMARY JUDGMENT STANDARD ON A PRE- ANSWER MOTION TO DISMISS IN DETERMINING THAT "PLAINTIFFS HAVE NOT DEMONSTRATED THAT THEY WOULD HAVE PREVAILED IN ANY UNDERLYING PROCEEDING BUT FOR DEFENDANTS' ALLEGED NEGLIGENCE"; AMENDMENT OF COMPLAINT; TORTS - BREACH OF FIDUCIARY DUTY - DISMISSAL OF BREACH OF FIDUCIARY DUTY CLAIM AS REDUNDANT OF THE LEGAL MALPRACTICE CAUSE OF ACTION; Supreme Court, New York County granted defendants' CPLR 3211 motion to dismiss the complaint alleging, among other things, legal malpractice; App. Div. affirmed.

WILLIAMS (JAIR), PEOPLE v (64 AD3d 734):
2nd Dept. App. Div. order of 7/21/09; affirmance; leave to appeal granted by Lippman, Ch.J., 2/5/10; CRIMES - JURORS - JURY INSTRUCTIONS - WHETHER TRIAL COURT ERRED IN FAILING TO AFFORD THE DEFENSE NOTICE AND AN OPPORTUNITY TO BE HEARD BEFORE IT REJECTED AS REPUGNANT THE INITIALLY ANNOUNCED JURY VERDICT, AND IN THEREAFTER GIVING EXTENSIVE SUPPLEMENTAL JURY INSTRUCTIONS AND RESUBMITTING THE CASE FOR FURTHER DELIBERATIONS - VERDICT SHEET COMPLETED BY JURY IN THE COURTROOM WITH OPEN COURT DISCUSSIONS AMONG THE JURORS; DUE PROCESS; EFFECTIVE ASSISTANCE OF COUNSEL; Supreme Court, Kings County convicted defendant of murder in the second degree, attempted murder in the second degree and criminal possession of a weapon in the second degree; App. Div. affirmed.