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For July 1, 2011 through July 7, 2011, the following preliminary appeal statements were filed:

BUSSEY (MONROE B.), PEOPLE v (82 AD3d 1002):
2nd Dept. App. Div. order of 3/15/11; affirmance; leave to appeal granted by Smith, J., 6/15/11; CRIMES - MURDER - DEPRAVED INDIFFERENCE MURDER - WHETHER THE TRIAL COURT ERRED IN SUBMITTING COUNTS OF BOTH INTENTIONAL MURDER AND DEPRAVED INDIFFERENCE MURDER TO THE JURY; MERGER DOCTRINE - WHETHER MERGER DOCTRINE APPLIES TO CHARGE OF KIDNAPPING IN THE FIRST DEGREE; Orange County Court convicted defendant of murder in the second degree (depraved indifference murder), murder in the second degree (felony murder), kidnapping in the first degree, tampering with physical evidence, and criminal possession of marijuana in the fourth degree, upon a jury verdict, and imposed sentence; App. Div. affirmed.

HAFFIZ (FEOID), PEOPLE v (77 AD3d 767):
2nd Dept. App. Div. order of 10/12/10; affirmance; leave to appeal granted by Jones, J., 6/10/11; CRIMES - PLEA OF GUILTY - WITHDRAWAL OF PLEA - ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON ATTORNEY'S STATEMENT CONCERNING THE DEPORTATION CONSEQUENCES OF DEFENDANT'S GUILTY PLEA - VOLUNTARINESS OF GUILTY PLEA; Suffolk County Court convicted defendant of criminal sale of a controlled substance in the second degree, criminal sale of a firearm in the third degree, and criminal possession of a weapon in the second degree, upon his guilty plea, and imposed sentence; App. Div. affirmed.

LUYSTER CREEK LLC, MATTER OF v NEW YORK STATE PUBLIC SERVICE COMMISSION (82 AD3d 1401):
3rd Dept. App. Div. order of 3/10/11; affirmance; leave to appeal granted by Court of Appeals, 6/23/11; PUBLIC UTILITIES - PUBLIC SERVICE COMMISSION (PSC) - PROPERTY TRANSFER ORDER - CHALLENGE TO PSC DETERMINATION CONFIRMING THAT THE DEVELOPMENT OF CERTAIN REAL PROPERTY AS AN ENVELOPE MANUFACTURING FACILITY WAS AN ESSENTIAL FACTOR UNDERLYING THE PUBLIC INTEREST FINDING IN PSC'S PRIOR ORDER APPROVING THE TRANSFER OF THE PROPERTY - PSC'S CONSIDERATION OF ECONOMIC DEVELOPMENT BENEFITS - SCOPE OF PSC'S STATUTORY AUTHORITY; Supreme Court, Albany County, among other things, dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Public Service Commission confirming that the development of certain real property as an envelope manufacturing facility was an essential factor underlying the public interest finding in its prior order approving the transfer of the property; App. Div. affirmed.

SMITH, MATTER OF v TORMEY (83 AD3d 1425):
4th Dept. App. Div. judgment of 4/1/11; leave to appeal granted by Court of Appeals, 6/23/11; PROCEEDING AGAINST BODY OR OFFICER - PROHIBITION - WHETHER CHALLENGED DETERMINATION REGARDING COUNTY COURT'S AWARD OF COUNSEL FEES WAS MADE IN EXCESS OF ADMINISTRATIVE JUDGE'S AUTHORITY PURSUANT TO 22 NYCRR 127.2(b); App. Div. granted the CPLR article 78 petition in part and annulled respondent District Administrative Judge's determination that Onondaga County Court had no authority to appoint petitioner as assigned counsel in the criminal proceeding in County Court or to award legal fees to petitioner.

WALKER (FREDERICK), PEOPLE v (78 AD3d 1671):
4th Dept. App. Div. order of 11/19/10; affirmance; leave to appeal granted by Lindley, J., 4/14/11; Rule 500.11 review pending; CRIMES - RIGHT TO BE PRESENT AT TRIAL - BURDEN OF ESTABLISHING DEFENDANT'S ABSENCE FROM SANDOVAL HEARING - CHALLENGE TO APPELLATE DIVISION RULING THAT COURT REPORTER'S FAILURE TO DOCUMENT DEFENDANT'S PRESENCE OR ABSENCE AT SANDOVAL HEARING WAS INSUFFICIENT TO SATISFY DEFENDANT'S BURDEN TO REBUT PRESUMPTION OF REGULARITY THAT ATTACHES TO JUDICIAL PROCEEDINGS; Supreme Court, Monroe County convicted defendant, upon a jury verdict, of two counts of robbery in the first degree, two counts of assault in the first degree, two counts of grand larceny in the fourth degree, robbery in the second degree, and two counts of attempted robbery in the second degree; App. Div. affirmed.

For July 8, 2011 through July 14, 2011, the following preliminary appeal statements were filed:

BERNSTEIN (JOSHUA), MATTER OF (2011 NY Slip Op 72179[U]):
2nd Dept. App. Div. order of 5/9/11; denial of motion; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution; CHALLENGE TO APPELLATE DIVISION ORDER DENYING MOTION FOR A "FINAL ORDER" ADDRESSING CONTENTION THAT THE ORDER DISBARRING ATTORNEY DID NOT ADJUDICATE HIS RETAINING LIEN DEFENSE; App. Div. denied disbarred attorney's motion for a "final order" addressing his contention that the order of disbarment did not "adjudicate [his] retaining lien defense."

CHAZON, LLC v MAUGENEST (81 AD3d 769):
2nd Dept. App. Div. order of 2/15/11; affirmance; leave to appeal granted by Court of Appeals, 6/30/11; LANDLORD AND TENANT - LOFT LAW - EJECTMENT - WHETHER LANDLORD CAN MAINTAIN AN EJECTMENT ACTION AGAINST TENANT PROTECTED BY MULTIPLE DWELLING LAW ARTICLE 7-C (THE LOFT LAW), EVEN THOUGH LANDLORD HAS NOT COMPLIED WITH MULTIPLE DWELLING LAW § 285(1) REGARDING MINIMUM HOUSING MAINTENANCE STANDARDS; Supreme Court, Kings County, among other things, granted that branch of plaintiff's motion which was for summary judgment on the cause of action for ejectment, denied that branch of defendant's cross motion which was for summary judgment dismissing the complaint, and directed defendant to vacate the subject premises; App. Div. affirmed.

COLVILLE (DELROY), PEOPLE v (79 AD3d 189):
2nd Dept. App. Div. order of 10/5/10; affirmance; leave to appeal granted by Read, J., 6/27/11; CRIMES - JURORS - JURY INSTRUCTIONS - COUNSEL'S WITHDRAWAL, IN DEFERENCE TO CLIENT'S WISHES, OF REQUEST TO CHARGE MANSLAUGHTER IN THE FIRST AND SECOND DEGREES AS LESSER INCLUDED OFFENSES TO MURDER IN THE SECOND DEGREE - WHETHER THE DECISION TO SUBMIT LESSER INCLUDED OFFENSES TO THE JURY IS A STRATEGIC DECISION TO BE MADE BY COUNSEL OR A FUNDAMENTAL DECISION TO BE MADE BY THE CLIENT - EFFECTIVE ASSISTANCE OF COUNSEL; JUSTIFICATION DEFENSE - DUTY TO RETREAT; Supreme Court, Kings County convicted defendant of murder in the second degree, and imposed sentence; App. Div. affirmed.

FLOYD v THE STATE OF NEW YORK DIVISION OF HUMAN RIGHTS (2009 NY Slip Op 84548[U]): ( 2009 NY Slip Op 88385[U]): ( 2010 NY Slip Op 69551[U]): ( 2010 NY Slip Op 76225[U]): ( 2010 NY Slip Op 85297[U]):
1st Dept. App. Div. orders of 9/29/09, 11/12/09, 4/27/10, 7/6/10 and 10/19/10; sua sponte examination whether the appeal was timely taken, appellant is an aggrieved party with respect to the 9/29/09 order, the orders appealed from finally determine the action within the meaning of the Constitution and, if so, whether there is any jurisdictional predicate for an appeal as of right; APPEAL - CHALLENGE TO APPELLATE DIVISION ORDERS REGARDING APPEAL TAKEN FROM A COURT OF CLAIMS ORDER DISMISSING A CLAIM AS UNTIMELY; Court of Claims dismissed claim as untimely filed; App. Div. (1) granted motion for enlargement of time to perfect appeal to the extent of "enlarging the time in which to perfect the appeal to the January 2010 Term, with no further enlargements to be granted" (9/29/09 order), (2) denied claimant's motion for the assignment of counsel (11/12/09 order), (3) denied motion for an enlargement of time in which to perfect the appeal and dismissed the appeal sua sponte (4/27/10 order), (4) denied claimant's motion for reargument of the 4/27/10 order (7/6/10 order) and (5) denied claimant's motion to reinstate the appeal (10/19/10 order).

GAUSE (DERRICK), PEOPLE v (81 AD3d 1293):
4th Dept. App. Div. order of 2/10/11; affirmance; leave to appeal granted by Lippman, Ch.J., 6/29/11; CRIMES - DOUBLE JEOPARDY - WHETHER DOUBLE JEOPARDY CLAUSES OF STATE AND FEDERAL CONSTITUTIONS BAR APPELLANT'S FURTHER PROSECUTION FOR INTENTIONAL MURDER (NOT CONSIDERED BY THE FIRST JURY) AFTER APPELLATE DIVISION DISMISSED THE DEPRAVED INDIFFERENCE MURDER COUNT UPON WHICH HE WAS CONVICTED; COLLATERAL ESTOPPEL - ACCOMPLICE LIABILITY; EFFECTIVE ASSISTANCE OF COUNSEL; Monroe County Court convicted defendant, upon a jury verdict, of murder in the second degree; App. Div. affirmed.

HALTER (ROBERT), PEOPLE v (81 AD3d 1446):
4th Dept. App. Div. order of 2/18/11; affirmance; leave to appeal granted by Pigott, J., 6/24/11; CRIMES - EVIDENCE - VICTIM'S PRIOR SEXUAL CONDUCT - APPLICATION OF RAPE SHIELD LAW (CPL 60.42) - ALLEGED DENIAL OF DEFENDANT'S RIGHTS TO CONFRONT ACCUSER AND PRESENT A DEFENSE; Monroe County Court convicted defendant, upon a nonjury verdict, of sexual abuse in the first degree, rape in the second degree, criminal sexual act in the second degree, and endangering the welfare of a child; App. Div. affirmed.

MAKI v BASSETT HEALTHCARE (85 AD3d 1366): ( 2011 NY Slip Op 75274[U]):
3rd Dept. App. Div. orders of 6/9/11 and 6/8/11 (two orders); affirmance; sua sponte examination whether (1) the 6/8/11 App. Div. order denying plaintiff's motion for a declaratory judgment, the 6/8/11 App. Div. order denying plaintiff's motion for summary judgment and for bifurcation, and so much of the 6/9/11 App. Div. order as affirms the 11/18/10 Supreme Court order that denied plaintiff's motion for, among other things, recusal, finally determine the action within the meaning of the Constitution; and (2) the two App. Div. orders entered 6/8/11 and the 6/9/11 App. Div. order involve a substantial constitutional question to support an appeal as of right; JUDGMENTS - SUMMARY JUDGMENT - CHALLENGE TO APPELLATE DIVISION ORDER THAT AFFIRMED THE GRANT OF SUMMARY JUDGMENT DISMISSING THE COMPLAINT AGAINST DEFENDANTS IN AN ACTION ALLEGING A VARIETY OF NEGLIGENCE-BASED AND INTENTIONAL TORTS, AND THAT AFFIRMED THE DENIAL OF PLAINTIFF'S MOTION FOR, AMONG OTHER THINGS, RECUSAL; CHALLENGE TO APPELLATE DIVISION ORDERS DENYING MOTIONS FOR SUMMARY JUDGMENT, A DECLARATORY JUDGMENT AND BIFURCATION; Supreme Court, Delaware County, among other things, granted defendants' cross motion for summary judgment dismissing the complaint in this action alleging a variety of negligence-based and intentional torts stemming from medical treatment rendered by defendants following a motor vehicle accident and, in a separate order, denied plaintiff's motion for, among other things, recusal; App. Div., in two separate orders, denied plaintiff's motions for summary judgment on negligence and for a declaratory judgment; thereafter, App. Div. affirmed both Supreme Court orders.

NASH, MATTER OF v BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK (82 AD3d 470):
1st Dept. App. Div. order of 3/8/11; affirmance; leave to appeal granted by Court of Appeals, 6/23/11; LIMITATION OF ACTIONS - FOUR-MONTH STATUTE OF LIMITATIONS - CHALLENGE TO TERMINATION OF PROBATIONARY EMPLOYMENT - TIMELINESS OF CHALLENGE - WHETHER A CPLR ARTICLE 78 PETITION CHALLENGING THE TERMINATION OF PROBATIONARY EMPLOYMENT ON SUBSTANTIVE GROUNDS IS TIME-BARRED WHERE IT IS NOT COMMENCED WITHIN FOUR MONTHS AFTER THE EFFECTIVE DATE OF TERMINATION BUT IS COMMENCED WITHIN FOUR MONTHS AFTER THE PETITIONER EXHAUSTS AVAILABLE ADMINISTRATIVE REMEDIES; Supreme Court, New York County denied a CPLR article 78 petition seeking to annul respondents' determination terminating petitioner's probationary employment as a school secretary and to direct respondents to reinstate her employment with back pay and interest, and granted respondents' cross motion to dismiss the proceeding; App. Div. affirmed.

STATE OF NEW YORK, MATTER OF v FLAGG (77 AD3d 1400):
4th Dept. App. Div. order of 10/1/10; reversal; leave to appeal granted by Court of Appeals, 6/28/11; CRIMES - SEX OFFENDERS - CIVIL COMMITMENT OR SUPERVISION - REVOCATION OF STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) WHERE SEX OFFENDER VIOLATES CONDITIONS OF SIST WHERE VIOLATIONS DO NOT CONSTITUTE SEXUAL MISCONDUCT - CHALLENGE TO APPELLATE DIVISION ORDER THAT, AMONG OTHER THINGS, DETERMINED THAT STATE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT SEX OFFENDER WAS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT - ALLEGED DEPRIVATION OF DUE PROCESS; Supreme Court, Onondaga County directed that respondent be released from detention at Onondaga County Correctional Facility under the oversight of the New York State Division of Parole, subject to conditions of strict and intensive supervision and treatment; App. Div. reversed, granted the petitions to the extent they seek a determination that respondent in the proceeding is a dangerous sex offender requiring confinement and an order for confinement pursuant to Mental Hygiene Law § 10.11(d).

STATE OF NEW YORK ex rel. GRUPP AND MOLL v DHL EXPRESS (USA), INC. (83 AD3d 1450):
4th Dept. App. Div. order of 4/1/11; reversal; leave to appeal granted by Court of Appeals, 6/28/11; STATUTES - FEDERAL PREEMPTION - WHETHER CLAIMS UNDER NEW YORK FALSE CLAIMS ACT (STATE FINANCE LAW § 187 et seq.) ARE PREEMPTED BY THE AIRLINE DEREGULATION ACT OF 1978 AND THE FEDERAL AVIATION ADMINISTRATION AUTHORIZATION ACT - CLAIMS ALLEGING, AMONG OTHER THINGS, THAT DEFENDANTS SUBMITTED TO THE STATE CLAIMS FOR DELIVERY SERVICES THAT FALSELY AND FRAUDULENTLY (1) MISREPRESENTED THAT CERTAIN PACKAGES WERE DELIVERED BY AIR WHEN THEY WERE ACTUALLY DELIVERED BY GROUND TRANSPORTATION, (2) IMPOSED JET FUEL SURCHARGES FOR PACKAGES THAT WERE DELIVERED SOLELY BY GROUND TRANSPORTATION, AND (3) IMPOSED DIESEL FUEL SURCHARGES BUT PASSED ALONG ONLY A SMALL PORTION OF SUCH SURCHARGES TO THE INDEPENDENT CONTRACTORS WHO BOUGHT THE FUEL; Supreme Court, Erie County denied defendants' motion to dismiss the amended complaint; App. Div. reversed, granted the motion and dismissed the amended complaint.

VAELLO, MATTER OF v CONNOLLY (84 AD3d 1624):
3rd Dept. App. Div. judgment of 5/19/11; confirmation of determination; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right pursuant to CPLR 5601(b)(1); PRISONS AND PRISONERS - DISCIPLINE OF INMATES - CHALLENGE TO APPELLATE DIVISION ORDER CONFIRMING DETERMINATION FINDING PETITIONER GUILTY OF VIOLATING CERTAIN PRISON DISCIPLINARY RULES; App. Div. confirmed a determination of the Commissioner of Correctional Services that found petitioner guilty of stalking and refusing a direct order, in violation of certain prison disciplinary rules, and dismissed the petition.

VELEZ (JESSIE), PEOPLE v (79 AD3d 542):
1st Dept. App. Div. order of 12/14/10; reversal; leave to appeal granted by Read, J., 6/23/11; CRIMES - SENTENCE - RESENTENCE - ADDITION OF POST- RELEASE SUPERVISION TO SENTENCE AFTER DEFENDANT'S RELEASE FROM PRISON - RESENTENCE PROCESS COMMENCED BEFORE DEFENDANT'S RELEASE FROM PRISON - DEFENDANT DID NOT OBJECT TO COURT ADJOURNMENTS; DOUBLE JEOPARDY - WAIVER; Supreme Court, Bronx County resentenced defendant to a term of 9 years with 5 years' post-release supervision; App. Div. reversed, vacated resentence and reinstated the original sentence without post- release supervision.