Return to New Filings Page


For April 5, 2013 through April 11, 2013, the following preliminary appeal statements were filed:

ABNER (JESSE), PEOPLE v (101 AD3d 1628):
4th Dept. App. Div. order of 12/21/12; affirmance; leave to appeal granted by Court of Appeals, 3/26/13; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - SEX OFFENDER REGISTRATION PROCEEDING - FAILURE TO ARGUE THAT SEX OFFENDER REGISTRATION ACT (SORA) WAS INAPPLICABLE TO SEX CRIME AS TO WHICH DEFENDANT'S SENTENCE EXPIRED FIVE YEARS BEFORE THE ENACTMENT OF SORA; Erie County Court determined that defendant is a level three risk pursuant to SORA; App. Div. affirmed.

BEATY (KATISHA), PEOPLE v (96 AD3d 1515):
4th Dept. App. Div. order of 6/8/12; affirmance and grant of motion; leave to appeal granted by Smith, J., 3/5/13; Rule 500.11 review pending; CRIMES - SENTENCE - POST-RELEASE SUPERVISION (PRS) - TRIAL COURT'S ALLEGED FAILURE TO ADVISE DEFENDANT REGARDING PRS; ALLEGED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR NOT RAISING ISSUE OF WHETHER PENAL LAW § 70.85 CAN BE APPLIED TO UPHOLD A GUILTY PLEA THAT IS INVALID FOR FAILURE TO ADVISE DEFENDANT OF PRS REQUIREMENTS (PEOPLE v CATU 4 NY3d 242); ANDERS BRIEF; Erie County Court convicted defendant of manslaughter in the first degree and sentenced her to a determinate term of 23 years; thereafter, the same court resentenced defendant to 23 years without PRS; App. Div. affirmed the sentence and granted defense counsel's motion to be relieved as assigned counsel.

BHUGRA v MASSACHUSETTS CASUALTY INSURANCE COMPANY (2013 NY Slip Op 63975[U]):
1st Dept. App. Div. order of 2/7/13; 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; APPEAL - APPELLATE DIVISION - MOTION TO STRIKE AND FOR ENLARGEMENT OF TIME AT APPELLATE DIVISION; App. Div., in an appeal from a 10/25/11 order of Supreme Court, New York County, granted appellant's motion to strike the App. Div. Clerk's designation of the appeal as non-enumerated, to strike respondents' brief, and for an enlargement of time to file appellant's reply brief only to the extent of adjourning the perfected appeal to the March 2013 Term, and otherwise denied the motion.

GONZALEZ (VICTOR), PEOPLE v:
1st Dept. App. Div. order of 1/10/11; affirmance; leave to appeal granted by Lippman, Ch. J., 3/29/13; CRIMES - INSTRUCTIONS - WHETHER DEFENDANT'S REQUEST FOR AN EXTREME EMOTIONAL DISTURBANCE CHARGE BASED ENTIRELY ON PROOF OFFERED BY THE PEOPLE IN THEIR DIRECT CASE, IS PROPERLY DEEMED CPL 250.10(2) NOTICE OF THE DEFENDANT'S INTENT TO PRESENT PSYCHIATRIC EVIDENCE, ENTITLING THE PEOPLE TO REOPEN THEIR CASE AND PRESENT PSYCHIATRIC EVIDENCE; WHETHER TRIAL COURT VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHTS BY CONDITIONING A JURY INSTRUCTION TO WHICH HE WAS ENTITLED ON A WAIVER OF HIS RIGHT TO REMAIN SILENT; Supreme Court, Bronx County convicted defendant, upon a jury verdict, of murder in the second degree, and sentenced him to a term of 25 years to life; App. Div. affirmed.

ODDONE (ANTHONY), PEOPLE v (89 AD3d 868):
2nd Dept. App. Div. order of 11/9/11; modification; leave to appeal granted by Pigott, J., 3/29/13; CRIMES - WITNESSES - EXPERT WITNESS - WHETHER THE APPELLATE DIVISION ERRED IN HOLDING THAT COUNTY COURT PROPERLY DENIED, WITHOUT A FRYE HEARING, THE DEFENDANT'S APPLICATION TO STRIKE THE TESTIMONY OF THE PEOPLE'S FORENSIC PATHOLOGIST REGARDING THE CAUSE OF THE VICTIM'S DEATH - DENIAL OF DEFENDANT'S REQUEST TO PRESENT EXPERT TESTIMONY FROM PSYCHOLOGIST ABOUT ACCURACY OF EYEWITNESS ESTIMATIONS OF DURATION OF EVENTS; EVIDENCE - PRIOR STATEMENT NOT ALLOWED TO REFRESH WITNESS'S RECOLLECTION - CONSTITUTIONAL CHALLENGE TO CPL 60.35; SUFFICIENCY OF THE EVIDENCE; ALLEGED JUROR BIAS; PROSECUTORIAL MISCONDUCT IN SUMMATION; INTOXICATION - WHETHER COUNTY COURT ERRED IN REFUSING TO GIVE AN INTOXICATION CHARGE TO THE JURY - PENAL LAW § 15.25; Suffolk County Court convicted defendant, upon a jury verdict, of manslaughter in the first degree, and sentenced him to a determinate term of 22 years of imprisonment with five years of postrelease supervision; App. Div. modified by reducing the sentence imposed on the conviction of manslaughter in the first degree from a determinate term of 22 years of imprisonment with five years of postrelease supervision to a determinate term of 17 years of imprisonment with five years postrelease supervision, and affirmed the judgment as so modified.

SIBBLIES (MARSHA), PEOPLE v (98 AD3d 458):
1st Dept. App. Div. order of 8/28/12; affirmance; leave to appeal granted by Smith, J., 3/28/13; CRIMES - RIGHT TO SPEEDY TRIAL - PEOPLE FILED AN OFF- CALENDAR STATEMENT OF READINESS AND SUBSEQUENTLY APPEARED IN COURT TO EXPLAIN THEY WERE NOT READY FOR TRIAL BECAUSE THEY HAD NOT YET RECEIVED MEDICAL RECORDS - WHETHER PEOPLE'S ORIGINAL STATEMENT OF READINESS WAS ILLUSORY AND WHETHER DENIAL OF DEFENDANT'S CPL 30.30 MOTION TO DISMISS VIOLATED HER RIGHT TO A SPEEDY TRIAL; Supreme Court, Bronx County convicted defendant, after a jury trial, of obstructing governmental administration in the second degree and resisting arrest, and sentenced her to a conditional discharge for a period of one year; App. Div. affirmed.

TEAGUE (EAMON), MATTER OF:
1st Dept. App. Div. order of 2/6/13; 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; ATTORNEY AND CLIENT - DISCIPLINARY PROCEEDINGS - APPELLATE DIVISION ORDER DENYING MOTION TO, AMONG OTHER THINGS, PRECLUDE DEPARTMENTAL DISCIPLINARY COMMITTEE FROM OFFERING ANY EVIDENCE AT HEARING, INCLUDING SUPPRESSION OF TRANSCRIPT OF EXAMINATION UNDER OATH; App. Div. denied attorney's motion for, among other things, an order precluding the Departmental Disciplinary Committee from offering any evidence at a hearing scheduled to commence January 16, 2013, including suppression of the transcript of an examination under oath.

For April 12, 2013 through April 18, 2013, the following preliminary appeal statements were filed:

DOCKERY (ALEXANDER), PEOPLE v (2012 NY Slip Op 76557[U]):
1st Dept. App. Div. order of 6/21/12; leave to appeal granted by Pigott, J., 4/10/13; CRIMES - RIGHT TO COUNSEL - DISMISSAL OF APPEAL FOR FAILURE TO PROSECUTE - WHETHER DEFENDANT, WHO WAS 16 YEARS OLD AT THE TIME OF CONVICTION, WAS ENTITLED TO THE ASSISTANCE OF COUNSEL IN APPLYING FOR POOR PERSON RELIEF AND ASSIGNMENT OF COUNSEL - TWENTY YEAR DELAY BETWEEN FILING OF THE NOTICE OF APPEAL BY TRIAL COUNSEL AND DEFENDANT'S ATTEMPT TO PURSUE THE APPEAL; Supreme Court, New York County convicted defendant of robbery in the first and second degrees and sentenced him to 2 to 6 years; App. Div. granted the People's motion for an order dismissing the appeal and dismissed the appeal.

GALINDO (OLIVERIO), PEOPLE v (101 AD3d 408):
1st Dept. App. Div. order of 12/4/12; affirmance; leave to appeal granted by Pigott, J. 4/5/13; CRIMES - POSSESSION OF WEAPON - WHETHER STATUTORY PRESUMPTION OF INTENT TO USE WEAPON UNLAWFULLY AGAINST ANOTHER IN PENAL LAW § 265.15(4) APPLIES TO CHARGE OF CRIMINAL POSSESSION OF A WEAPON IN THE SECOND DEGREE (PENAL LAW § 265.03[1][b][3]) WHERE DEFENDANT ACCIDENTALLY SHOT HIS COUSIN IN THE LEG; CLAIMED INEFFECTIVE ASSISTANCE OF COUNSEL; Supreme Court, New York County convicted defendant of two counts of criminal possession of a weapon in the second degree, and sentenced him to concurrent terms of 4 years; App. Div. affirmed.

QBE INSURANCE CORP. v JINX-PROOF, INC. (102 AD3d 508):
1st Dept. App. Div. order of 1/17/13; modification; leave to appeal granted by App. Div., 4/11/13; INSURANCE - DUTY TO DEFEND AND INDEMNIFY - COMMERCIAL GENERAL LIABILITY POLICY CONTAINING AN ASSAULT AND BATTERY EXCLUSION - WHETHER LETTERS FROM INSURER THAT CONTAINED "RESERVATION OF RIGHTS" LANGUAGE CONSTITUTED VALID NOTICE OF DISCLAIMER OF COVERAGE WITH RESPECT TO THE ASSAULT AND BATTERY EXCLUSION - WHETHER INSURER WAS ESTOPPED FROM DISCLAIMING COVERAGE; Supreme Court, New York County granted plaintiff's motion for summary judgment declaring that it is not obligated to defend defendant Jinx- Proof, Inc. in the underlying action, and denied Jinx-Proof's motion for summary judgment dismissing the complaint against it; App. Div. modified to declare that plaintiff is not obligated to defend Jinx-Proof in the underlying action, and otherwise affirmed.

SAGE (MERLIN G.), PEOPLE v (98 AD3d 1254):
4th Dept. App. Div. order of 9/28/12; affirmance; leave to appeal granted by Smith, J., 4/10/13; CRIMES - INSTRUCTIONS - WHETHER TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A CHARGE TO THE JURY THAT THE PEOPLE'S KEY WITNESS WAS AN ACCOMPLICE; Monroe County Court convicted defendant, upon a jury verdict, of manslaughter in the first degree; App. Div. affirmed.

SATO v IPPUDO NY (104 AD3d 423):
1st Dept. App. Div. order of 3/7/13; reversal with two-Justice dissent; Rule 500.11 review pending; NEGLIGENCE - MAINTENANCE OF PREMISES - PROXIMATE CAUSE - ALLEGED DEFECTIVE CONDITION OF STAIRWAY - PLAINTIFF FELL DOWN A FLIGHT OF STAIRS IN DEFENDANT'S RESTAURANT - WHETHER THE APPELLATE DIVISION ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT; Supreme Court, New York County denied defendants' motion for summary judgment dismissing the complaint; App. Div. reversed, granted the motion, dismissed the complaint and directed the Clerk to enter judgment accordingly.

SMART (FLOYD L.), PEOPLE v (100 AD3d 1473):
4th Dept. App. Div. order of 11/16/12; modification; leave to appeal granted by Pigott, J., 4/4/13; CRIMES - RIGHT OF CONFRONTATION - WHETHER THE TRIAL COURT ERRED IN PERMITTING ADMISSION INTO EVIDENCE OF WITNESS'S GRAND JURY TESTIMONY ON THE BASIS THAT THE WITNESS WAS UNAVAILABLE DUE TO MISCONDUCT OF THE DEFENDANT - WITNESS APPEARED IN COURT AND ASSERTED HER FIFTH AMENDMENT RIGHT AGAINST SELF INCRIMINATION; ALLEGED IMPROPER HANDLING OF JUROR QUESTIONS DURING DELIBERATIONS; Monroe County Court convicted defendant, after a jury trial, of burglary in the second degree; App. Div. modified by reducing the sentence imposed to an indeterminate term of 15 years to life, and affirmed as modified.

STATE OF NEW YORK, MATTER OF v JOHN S. (104 AD3d 511):
1st Dept. App. Div. order of 3/14/13; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; CRIMES - SEX OFFENDERS - CIVIL COMMITMENT OR SUPERVISION - ALLEGED DUE PROCESS VIOLATION BY INTRODUCTION OF EVIDENCE REGARDING SEXUAL OFFENSE ALLEGATIONS FROM THIRTY TO FORTY YEARS AGO AND EXPERT WITNESS TESTIMONY BASED ON SUCH EVIDENCE - RELEASE OF RECORDS PREVIOUSLY SEALED; SUFFICIENCY OF THE EVIDENCE; Supreme Court, New York County, upon a jury verdict that respondent suffers from a mental abnormality, determined that respondent is a dangerous sex offender requiring confinement; App. Div. affirmed.

STENROOS v MAECKER:
Chautauqua County Court order of 4/3/13; affirmance; sua sponte examination whether an appeal as of right may be taken to the Court of Appeals, pursuant to CPLR 5601(b), from an order of County Court sitting as an appellate court; LANDLORD AND TENANT - EVICTION - DEFENDANT WITH RIGHT OF POSSESSION OF REAL PROPERTY UNLESS THERE WAS A DEFAULT IN MAKING MORTGAGE PAYMENTS; ALLEGED DUE PROCESS AND JUDICIAL BIAS ISSUES; Silver Creek Village Court judgment in favor of plaintiff in the principal sum of $10,214.28, with warrant of eviction against defendant for nonpayment; County Court affirmed.

WELLS (DIANE), PEOPLE v (36 Misc 3d 144(A)):
App. Term, 1st Dept. order of 8/14/12; reversal; leave to appeal granted by Smith, J., 4/13/13; CRIMES - RIGHT TO SPEEDY TRIAL - EXCLUDABLE TIME PERIODS - TIME RESULTING FROM AN APPEAL (CPL 30.30 [4][a]) - WHETHER THE EXCLUDABLE TIME RESULTING FROM AN APPEAL ENDED WHEN THE COURT OF APPEALS DENIED THE PEOPLE'S APPLICATION FOR LEAVE TO APPEAL, OR WHETHER IT ENDED ON THE LATER DATE TO WHICH THE TRIAL COURT HAD ORDERED A ROUTINE ADJOURNMENT PENDING THE DECISION ON THE PEOPLE'S APPLICATION FOR LEAVE TO APPEAL; Criminal Court of the City of New York granted defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 (10/7/10 order); upon reconsideration, the same court adhered to the original determination (2/22/11 order); thereafter, the same court corrected a factual error in the 2/22/11 order and adhered to the determination therein (3/22/11 order); App. Term reversed the 10/7/10 order, denied defendant's motion to dismiss the accusatory instrument, reinstated the accusatory instrument, and dismissed as academic the appeals from the 2/22/11 and 3/22/11 orders.