New Filings: 5/28/10 to 6/10/10

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For May 28, 2010 through June 3, 2010, the following preliminary appeal statements were filed:

CONCEPCION (REYNALDO), PEOPLE v (69 AD3d 956):
2nd Dept. App. Div. order of 1/26/10; affirmance; leave to appeal granted by Pigott, J., 5/25/10; CRIMES - EVIDENCE - SUPPRESSION HEARING - CONSENT TO SEARCH OF VAN; APPEAL - SCOPE OF REVIEW OF INTERMEDIATE APPELLATE COURT - WHETHER, ON DEFENDANT'S APPEAL TO THE APPELLATE DIVISION, CPL 470.15(1) PERMITTED THE COURT TO DECIDE THE ISSUE OF CONSENT WHERE THE CONSENT ISSUE WAS NOT DECIDED ADVERSELY TO DEFENDANT IN THE TRIAL COURT; Supreme Court, Kings County convicted defendant of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the third degree, and assault in the third degree, and imposed sentence; App. Div. affirmed.

LEWIE (ALICIA), PEOPLE v (67 AD3d 1056):
3rd Dept. App. Div. order of 11/5/09; modification; leave to appeal granted by Lippman, Ch.J., 5/28/10; CRIMES - SUFFICIENCY OF EVIDENCE - SECOND DEGREE MANSLAUGHTER AND RECKLESS ENDANGERMENT OF A CHILD - INFANT BATTERED BY DEFENDANT'S BOYFRIEND; ALLEGED VIOLATIONS OF DEFENDANT'S DUE PROCESS RIGHTS - CONTINUED QUESTIONING AFTER POLICE BECAME AWARE DEFENDANT WAS REPRESENTED BY COUNSEL IN A RELATED FAMILY COURT PROCEEDING - QUESTIONABLE CONDUCT BY JUROR; Warren County Court convicted defendant of two counts of manslaughter in the second degree, reckless endangerment in the first degree and endangering the welfare of a child, sentenced defendant and thereafter resentenced defendant; App. Div. modified by reversing defendant's conviction of manslaughter in the second degree under count 6 of the indictment, dismissing that count and the sentence imposed thereon, and directing that defendant's sentence on counts 7 and 8 of the indictment should run concurrently to one another.

PEREZ, PEOPLE ex rel. v HOURIHANE (2010 NY Slip Op 62375[U]):
1st Dept. App. Div. order of 2/2/10; 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 - AVAILABILITY OF RELIEF; App. Div. denied application for writ of habeas corpus.

VENTURA (CARLOS), PEOPLE v (2009 NY Slip Op 82726[U]):
2nd Dept. App. Div. order of 9/10/09; dismissal of appeal; leave to appeal granted by Lippman, Ch.J., 5/21/10; CRIMES - APPEAL - ABSENCE OF DEFENDANT - INVOLUNTARY DEPORTATION - WHETHER THE APPELLATE DIVISION ERRED IN DISMISSING DEFENDANT'S APPEAL ON THE GROUND THAT HE HAD BEEN DEPORTED AND WAS NO LONGER AVAILABLE TO OBEY THE MANDATE OF THE COURT WHERE DEFENDANT SERVED HIS SENTENCE, HAD BEEN PAROLED TO THE CUSTODY OF IMMIGRATION AND CUSTOMS ENFORCEMENT AND ARGUED ON APPEAL SOLELY THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT HIS CONVICTION; App. Div. granted the People's motion to dismiss an appeal from a July 31, 2006 Supreme Court, Queens County judgment convicting defendant of knowing possession of stolen property, and dismissed the appeal on the ground that the appellant had been deported and was no longer available to obey the mandate of the court.

For June 4, 2010 through June 10, 2010, the following preliminary appeal statements were filed:

GILFORD (TERRELL), PEOPLE v (65 AD3d 840):
1st Dept. App. Div. order of 9/1/09; modification; leave to appeal granted by Read, J., 5/17/10; CRIMES - IDENTIFICATION OF DEFENDANT - SHOWUP - CHALLENGE TO APPELLATE DIVISION ORDER HOLDING THAT THERE WAS "NO BASIS FOR SUPPRESSION OF THE SHOWUP OR IN-COURT IDENTIFICATIONS, BECAUSE THE SHOWUP WAS WITHIN PERMISSIBLY CLOSE TEMPORAL AND GEOGRAPHIC PROXIMITY TO THE CRIME . . . , TOOK PLACE SHORTLY AFTER THE WITNESS HAD ALREADY MADE A RELIABLE IDENTIFICATION . . . , AND WAS CONDUCTED IN A MANNER THAT WAS NOT UNDULY SUGGESTIVE"; Supreme Court, Bronx County convicted defendant of manslaughter in the first degree, assault in the first degree and criminal possession of a weapon in the fourth degree, and sentenced him, as a second felony offender, to concurrent terms of 20 years, 20 years and 1 year, respectively; App. Div. modified to the extent of reducing the assault conviction to attempted assault in the first degree and reducing the sentence thereon to a term of 10 years, and otherwise affirmed.

GRIMM (RAYMOND B.), PEOPLE v (69 AD3d 1231):
3rd Dept. App. Div. order of 1/28/10; reversal; leave to appeal granted by Pigott, J., 5/26/10; CRIMES - PLEA OF GUILTY - FAILURE TO ADVISE DEFENDANT AT PLEA ALLOCUTION ABOUT THE LENGTH OF THE PERIOD OF MANDATORY POSTRELEASE SUPERVISION - VALIDITY OF GUILTY PLEA WHERE COURT STATED TERMS OF POSTRELEASE SUPERVISION AT SENTENCING - APPLICABILITY OF PENAL LAW § 70.85; Sullivan County Court convicted defendant, upon his guilty plea, of rape in the first degree and criminal sexual act in the first degree; App. Div. reversed, vacated defendant's guilty plea and remitted to Sullivan County Court for further proceedings not inconsistent with the court's decision.

KOZIOL, MATTER OF v WALSH-HOOD (72 AD3d 1634):
4th Dept. App. Div. judgment of 4/30/10; dismissal of CPLR article 78 petition; sua sponte examination whether a substantial constitutional question is directly involved or whether any jurisdictional basis otherwise exists to support an appeal as of right; PROCEEDING AGAINST BODY OR OFFICER - PROHIBITION - MANDAMUS - CHALLENGE TO APPELLATE DIVISION ORDER DISMISSING CPLR ARTICLE 78 PETITION ON THE GROUND THAT PETITIONER "FAILED TO DEMONSTRATE A CLEAR LEGAL RIGHT TO EITHER [PROHIBITION OR MANDAMUS THAT] COULD NOT BE SAFEGUARDED THROUGH ALTERNATIVE REMEDIES"; App. Div. dismissed a CPLR article 78 petition seeking, among other things, relief in the nature of prohibition and mandamus.

MANKO v LENOX HILL HOSPITAL (2009 NY Slip Op 82760[U]): ( 2009 NY Slip Op 89975[U]): ( 2010 NY Slip Op 60747[U]): ( 2010 NY Slip Op 60748[U]):
2nd Dept. App. Div. orders of 9/3/09, 12/1/09 and 1/13/10; grants of motions to enlarge time to perfect appeals and dismissal of certain appeals; sua sponte examination whether the orders appealed from finally determine the action within the meaning of the Constitution, whether appellant is an aggrieved party within the meaning of CPLR 5511 and whether any jurisdictional basis exists to support an appeal as of right; APPEALS - CHALLENGE TO APPELLATE DIVISION ORDERS THAT, AMONG OTHER THINGS, GRANTED APPELLANT'S MOTIONS FOR ENLARGEMENTS OF TIME TO PERFECT APPEALS, DISMISSED CERTAIN APPEALS AND STATED, AFTER GRANTING ENLARGEMENTS OF TIME, THAT NO FURTHER ENLARGEMENTS OF TIME WOULD BE GRANTED; App. Div. dismissed appellant's appeals from Supreme Court, Kings County orders dated 10/15/08 and 12/4/08 and granting appellant's motion to enlarge the time to perfect appeals from Supreme Court, Kings County orders dated 10/30/08, 12/4/08 and 1/22/09 to the extent of enlarging such time until 11/2/09, and otherwise denied appellant's application (9/3/09 order); granted appellant's motion to enlarge the time to perfect appeals from Supreme Court, Kings County orders dated 10/30/08, 12/4/08 and 1/22/09 to the extent of enlarging such time until December 31, 2009 (12/1/09 order); and granted appellant's motion to enlarge the time to perfect appeals from Supreme Court, Kings County orders dated 10/30/08, 12/4/08 and 1/22/09 to the extent of enlarging such time until 2/17/10, and ordering that no further enlargement of time shall be granted (1/13/10 order).