Return to New Filings Page


For August 15, 2014 through August 21, 2014, the following preliminary appeal statements were filed:

C., MATTER OF:
2nd Dept. App. Div. order of 7/9/14; denial of application; 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 - ADMISSION TO PRACTICE - WHETHER PETITIONER WAS DENIED DUE PROCESS OF LAW BY THE APPELLATE DIVISION'S SUMMARY DENIAL, WITHOUT A HEARING, OF HIS SECOND RENEWED APPLICATION FOR ADMISSION TO PRACTICE LAW; App. Div. denied petitioner's second renewed application for admission to the Bar of the State of New York.

HARRIS (DAVON), PEOPLE v (115 AD3d 872):
2nd Dept. App. Div. order of 3/19/14; affirmance; leave to appeal granted by Rivera, J., 8/4/14; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - WHETHER DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO RAISE A STATUTE OF LIMITATIONS DEFENSE THAT WOULD HAVE BARRED PROSECUTION ON ONE OF THE TWO INDICTED CRIMES; SUFFICIENCY OF EVIDENCE OF DEFENDANT'S INTENT TO STEAL PROPERTY WHEN HE ENTERED THE DWELLING; FAILURE OF TRIAL COURT TO GRANT DEFENDANT'S FOR-CAUSE CHALLENGE TO A JUROR; CLAIMED DUE PROCESS VIOLATIONS; Supreme Court, Queens County, convicted defendant, upon a jury verdict, of burglary in the second degree and petit larceny, and imposed sentence; App. Div. affirmed.

HATTON (FRANKIE), PEOPLE v (42 Misc 3d 141(A)):
App. Term 2nd, 11th and 13th Judicial Districts; 2/7/14 reversal; leave to appeal granted by Rivera, J. 8/4/14; CRIMES - PLEA OF GUILTY - FORFEITURE OF RIGHT TO RAISE ISSUES ON APPEAL - JURISDICTIONAL SUFFICIENCY OF ACCUSATORY INSTRUMENT - WHETHER DEFENDANT WAIVED HIS RIGHT TO PROSECUTION BY INFORMATION BY A BLANKET WAIVER OF THE READING OF THAT RIGHT MADE BY HIS ATTORNEY IN THE CONTEXT OF AN UNRELATED CASE OUTSIDE OF DEFENDANT'S PRESENCE OR BY SUBSEQUENTLY PLEADING GUILTY; CRIMES - INFORMATION - INSUFFICIENT INFORMATION CHARGING FORCIBLE TOUCHING - WHETHER THE ACCUSATORY INSTRUMENT CONTAINED SUFFICIENT FACTUAL - ALLEGATIONS RELATED TO THE "PURPOSE" ELEMENT OF FORCIBLE TOUCHING; Criminal Court of the City of New York convicted defendant, upon his guilty plea, of forcible touching; App. Term reversed and dismissed the accusatory instrument.

JORGENSEN (JENNIFER), PEOPLE v (113 AD3d 793):
2nd Dept. App. Div. order of 1/22/14; affirmance; leave to appeal granted by Smith, J., 8/5/14; CRIMES - EVIDENCE - SUFFICIENCY OF EVIDENCE - DEFENDANT, WHILE PREGNANT, CRASHED INTO ANOTHER CAR - DEFENDANT'S CHILD, BORN IN EMERGENCY C-SECTION, DIED DAYS AFTER THE ACCIDENT - WHETHER EVIDENCE WAS LEGALLY SUFFICIENT TO CONVICT DEFENDANT OF MANSLAUGHTER IN THE SECOND DEGREE CONCERNING THE CHILD; ADMISSION OF EVIDENCE - WHETHER THE TRIAL COURT ERRED IN PERMITTING ADMISSION OF EVIDENCE OF DRUGS TAKEN BY DEFENDANT DURING HER PREGNANCY; CLAIMED INFLAMMATORY COMMENTS BY PROSECUTOR DURING SUMMATION; CLAIMED DUE PROCESS VIOLATIONS; Supreme Court, Suffolk County, upon a jury verdict, convicted defendant of manslaughter in the second degree, and imposed sentence; App. Div. affirmed.

LARABEE v GOVERNOR OF STATE OF NEW YORK (121 AD3d 162):
1st Dept. App. Div. order of 7/10/14; affirmance with a two-Justice dissent; JUDGES - JUDICIAL SALARIES - SEPARATION OF POWERS - WHETHER PLAINTIFFS DEMONSTRATED THAT THE LEGISLATURE FAILED TO ABIDE BY THIS COURT'S RULING IN MATTER OF MARON v SILVER (14 NY3d 230 [2010]) BY ESTABLISHING A COMMISSION ON JUDICIAL COMPENSATION TO MAKE RECOMMENDATIONS FOR PROSPECTIVE-ONLY SALARY ADJUSTMENTS; WHETHER PLAINTIFF'S ARE ENTITLED TO DAMAGES FOR PAST CONSTITUTIONAL VIOLATIONS; Supreme Court, New York County, upon renewal of plaintiff's motion for summary judgment, denied plaintiffs' request for an award of retroactive monetary damages; App. Div. affirmed.

LOWE (FABRICE), PEOPLE v (113 AD3d 1133):
4th Dept. App. Div. order of 1/3/14; affirmance; leave to appeal granted by Rivera, J., 8/4/14; INFANTS - YOUTHFUL OFFENDERS - WHERE A YOUTH WHO IS INELIGIBLE FOR YOUTHFUL OFFENDER STATUS BECAUSE OF THE NATURE OF THE CRIME REQUESTS SUCH STATUS, WHETHER SENTENCING COURT IS REQUIRED TO MAKE PARTICULARIZED FINDING OF NO MITIGATING CIRCUMSTANCES UNDER PENAL LAW § 720.10(3) BEFORE REJECTING THE REQUEST - PEOPLE v RUDOLPH (21 NY3d 497 [2013]); County Court, Onondaga County, convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree and imposed sentence; App. Div. affirmed.

PEOPLE ex rel. MOORE v SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY (2014 NY Slip Op 79870[U]):
3rd Dept. App. Div. order of 8/7/14; denial of application; sua sponte examination whether a constitutional question is directly involved to support an appeal as of right; HABEAS CORPUS - AVAILABILITY OF RELIEF - CPLR 7002(b); App. Div., among other things, denied petitioner's application for a writ of habeas corpus.

PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC. v CITY OF NEW YORK (119 AD3d 1):
1st Dept. App. Div. order of 5/13/14; reversal with a two-Justice dissent; sua sponte examination whether the two-Justice dissent at the App. Div. is on a question of law; INJUNCTIONS - PRELIMINARY INJUNCTION - WHETHER PETITIONERS ESTABLISHED A LIKELIHOOD OF SUCCESS ON THE MERITS OF THE CLAIM TO BE ARBITRATED - WHETHER ARBITRATION AWARD IN PETITIONERS' FAVOR WOULD BE RENDERED INEFFECTUAL WITHOUT PROVISIONAL RELIEF; Supreme Court, New York County, granted the petition for a preliminary injunction enjoining respondents from denying or revoking "Release Time" to the individual petitioners, pending resolution of arbitration proceedings; App. Div. reversed, vacated the judgment, denied the petition and dismissed the proceeding.

SMALLS (DENNIS P.), PEOPLE v (116 AD3d 474):
1st Dept. App. Div. order of 4/8/14; affirmance; leave to appeal granted by Graffeo, J., 8/11/14; CRIMES - ACCUSATORY INSTRUMENT - SUFFICIENCY - CRIMINAL POSSESSION OF CONTROLLED SUBSTANCE - WHETHER CONFIRMATORY SCIENTIFIC TESTING IS REQUIRED FOR AN INFORMATION TO ADEQUATELY ALLEGE THAT THE RESIDUE ON A CRACK PIPE CONTAINS COCAINE (PEOPLE v KALIN, 12 NY3d 225 [2009]); Supreme Court, Bronx County, convicted defendant, upon his guilty plea, of criminal possession of a controlled substance in the seventh degree and sentenced him to a term of 30 days' incarceration; App. Div. affirmed.

VARENGA (NATANAEL SAGASTUMEAL), PEOPLE v (115 AD3d 684):
2nd Dept. App. Div. order of 3/5/14; reversal; leave to appeal granted by Rivera, J., 8/6/14; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON THE GROUND THAT HE WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY'S ALLEGED FAILURE TO ADVISE HIM OF THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA - FINALITY OF DEFENDANT'S CONVICTION IN RELATION TO TIMING OF U.S. SUPREME COURT DECISION IN PADILLA v KENTUCKY (559 US 356); RETROACTIVE EFFECT OF PADILLA DECISION; Supreme Court, Suffolk County, denied, without a hearing, defendant's motion pursuant to CPL 440.10 to vacate a 5/14/09 judgment convicting him, upon his guilty plea, of assault in the second degree and imposing sentence; App. Div. reversed and remitted the matter to Supreme Court for an evidentiary hearing on defendant's motion, and for a new determination of the motion.

WRAGG (WILLIE L.), PEOPLE v (115 AD3d 1281):
4th Dept. App. Div. order of 3/28/14; affirmance; leave to appeal granted by Lippman, Ch.J., 8/7/14; CRIMES - SENTENCE - SECOND CHILD SEXUAL ASSAULT FELONY OFFENDER - WHETHER THE PEOPLE ARE PERMITTED TO SEEK A SENTENCING ENHANCEMENT PURSUANT TO PENAL LAW § 70.07 BY FILING A CPL 400.19 SECOND CHILD SEXUAL ASSAULT FELONY OFFENDER STATEMENT AFTER THE COMMENCEMENT OF TRIAL; RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - WHETHER DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN, AMONG OTHER THINGS, HIS ATTORNEY FAILED TO OBJECT TO THE TESTIMONY OF A POLICE OFFICER WHO REFERRED TO THE VICTIM'S PRE-ARREST IDENTIFICATION OF DEFENDANT; County Court, Monroe County, convicted defendant, upon a jury verdict, of sexual abuse in the first degree and imposed sentence; App. Div. affirmed.

For August 22, 2014 through August 28, 2014, the following preliminary appeal statements were filed:

DAVIS (TYRONE), PEOPLE v (114 AD3d 697):
2nd Dept. App. Div. order of 2/5/14; affirmance; leave to appeal granted by Lippman, Ch.J., 7/28/14; Rule 500.11 review pending; CRIMES - PLEA OF GUILTY - SUFFICIENCY OF ALLOCUTION - WHETHER DEFENDANT'S GUILTY PLEA, WHICH HE NEVER MOVED TO WITHDRAW, WAS KNOWINGLY AND VOLUNTARILY MADE WHERE THE COLLOQUY MAY HAVE NEGATED AN ELEMENT OF THE CHARGED OFFENSE; County Court, Suffolk County, convicted defendant of attempted burglary in the third degree, upon his guilty plea, and imposed sentence; App. Div. affirmed.

NEALON (KENNETH), PEOPLE v (116 AD3d 886):
2nd Dept. App. order of 4/16/14; reversal; leave to appeal granted by Graffeo, J., 8/15/14; CRIMES - APPEAL - PRESERVATION OF ISSUE FOR REVIEW - MEANINGFUL NOTICE OF JURY NOTES - FAILURE TO OBJECT - WHETHER THE TRIAL COURT COMMITTED A MODE OF PROCEEDINGS ERROR WHEN, ACCORDING TO THE ORIGINAL TRIAL RECORD, IT READ THE CONTENTS OF THREE JURY NOTES REQUESTING CHARGE CLARIFICATIONS FOR THE FIRST TIME IN FRONT OF THE JURY AND IMMEDIATELY RESPONDED; IF SO, WHETHER THE APPELLATE DIVISION PROPERLY REFUSED TO CONSIDER THE RESETTLED TRIAL RECORD; Supreme Court, Queens County, convicted defendant, upon a jury verdict, of robbery in the first degree, robbery in the second degree, assault in the second degree, and criminal possession of stolen property in the fifth degree, and imposed sentence; App. Div. reversed the judgment and ordered a new trial.

NICHOLSON (CHRISTOPHER A.), PEOPLE v (118 AD3d 1423; 118 AD3d 1428):
4th Dept. App. Div. orders of 6/20/14; modification and affirmance; leave to appeal granted by Lindley, J., 8/12/14; CRIMES - WITNESSES - REBUTTAL WITNESS IN CHILD SEX PROSECUTION - WHETHER SUPREME COURT ERRED IN ALLOWING THE PEOPLE TO CALL DEFENDANT'S EX-WIFE AS A REBUTTAL WITNESS TO REBUT CERTAIN TESTIMONY OFFERED BY DEFENDANT'S ONLY WITNESS, HIS FORMER GIRLFRIEND; WITNESSES - EXPERT WITNESS - WHETHER SUPREME COURT ERRED IN ADMITTING THE TESTIMONY OF AN EXPERT WITH RESPECT TO CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME; RIGHT TO COUNSEL - CLAIMED INEFFECTIVE ASSISTANCE; Supreme Court, Monroe County, convicted defendant, upon a jury verdict, of course of sexual conduct against a child in the first degree and imposed sentence; thereafter, the same Court resentenced defendant upon his conviction of course of sexual conduct against a child in the first degree; App. Div. (1) dismissed the appeal from the judgment insofar as it imposed sentence, and otherwise affirmed, and (2) modified the resentence by amending an order of protection, and remitted to Supreme Court to specify in the order of protection an expiration date in accordance with CPL 530.12 former (5)(ii) and to determine the jail time credit to which defendant is entitled.

For August 29, 2014 through September 4, 2014, the following preliminary appeal statements were filed:

IZZO (VINCENT), PEOPLE v (120 AD3d 860):
3rd Dept. App. Div. order of 8/7/14; affirmance with two-Justice dissent; CRIMES - SEX OFFENDERS - SEX OFFENDER REGISTRATION ACT - LEVEL TWO SEX OFFENDER - CHALLENGE TO ASSESSMENT OF 30 POINTS UNDER RISK FACTOR 3 (NUMBER OF VICTIMS) DUE TO THREE OR MORE VICTIMS - CHALLENGE TO ASSESSMENT OF 20 POINTS UNDER RISK FACTOR 7 (RELATIONSHIP BETWEEN OFFENDER AND VICTIM) FOR ENGAGING IN "GROOMING" BEHAVIOR WITH HIS VICTIMS FOR THE PRIMARY PURPOSE OF VICTIMIZATION - DEFENDANT'S ENTITLEMENT TO A DOWNWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL CLASSIFICATION - EFFECT OF COUNTY COURT'S FAILURE TO EXPRESSLY REFERENCE IN ITS OPINION DEFENDANT'S REQUEST FOR A DOWNWARD DEPARTURE; County Court, Chemung County, classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act; App. Div. affirmed.

JAY, MATTER OF v FISCHER (118 AD3d 1364):
4th Dept. App. Div. order of 6/13/14; affirmance; sua sponte examination whether a substantial constitutional question is directly involved to support an appeal as of right; PRISONS AND PRISONERS - DISCIPLINE OF INMATES - RULINGS BY HEARING OFFICER - WHETHER HEARING OFFICER IN DISCIPLINARY HEARING DEMONSTRATED BIAS OR IMPROPERLY PRECLUDED INMATE FROM OFFERING EVIDENCE; Supreme Court, Wyoming County, dismissed the CPLR article 78 proceeding to annul a determination finding petitioner guilty of violating certain inmate rules; App. Div. affirmed.

KENT, MATTER OF v LEFKOWITZ (119 AD3d 1208):
3rd Dept. App. Div. order of 7/17/14; reversal with two-Justice dissent; sua sponte examination whether the order appealed from finally determines the proceeding within the meaning of the Constitution; CIVIL SERVICE - PUBLIC EMPLOYMENT RELATIONS BOARD (PERB) - IMPROPER PRACTICE CHARGE - WHETHER THE DUTY OF THE STATE RACING AND WAGERING BOARD TO NEGOTIATE WAGES FOR SEASONAL TRACK EMPLOYEES WAS SATISFIED BY THE EXECUTION OF A SIDE LETTER AGREEMENT BETWEEN THE UNION AND THE STATE; Supreme Court, Albany County, dismissed petitioners' application in a CPLR article 78 proceeding to review a PERB determination dismissing an improper practice charge against respondent NYS Racing and Wagering Board; App. Div. reversed, annulled the determination of PERB, and remitted the matter to PERB for further proceedings not inconsistent with its decision.

PEOPLE ex rel. LOYD v DEMARS:
Supreme Court, Clinton County judgment of 7/21/14; sua sponte examination whether the only question involved on the appeal is the constitutional validity of a statutory provision (CPLR 5601 [b] [2]); HABEAS CORPUS - WHEN REMEDY AVAILABLE - DISMISSAL OF HABEAS CORPUS PETITION CHALLENGING THE SUFFICIENCY OF THE EVIDENCE AT A FINAL PAROLE REVOCATION HEARING - FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BY TAKING AN ADMINISTRATIVE APPEAL TO THE BOARD OF PAROLE; Supreme Court granted respondent's motion to dismiss the habeas corpus petition, and dismissed the petition.

MANKO v LENOX HILL HOSPITAL (118 AD3d 676, 677, 678):
2nd Dept. App. Div. orders of 6/4/14; sua sponte examination of whether the orders appealed from finally determine 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 - CHALLENGE TO APPELLATE DIVISION ORDERS - AFFIRMANCE OF SUPREME COURT ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO ADD DEFENDANTS - DISMISSAL OF APPEALS AS OF RIGHT; DENIAL OF MOTIONS FOR LEAVE TO APPEAL TO THE APPELLATE DIVISION; App. Div. (Nos. 2009-02637 and 2009- 02640) (1) denied the branches of plaintiff's motion which are for leave to appeal from Supreme Court, Kings County, orders dated 10/30/08 and 12/4/08 and (2) dismissed the appeals purportedly taken as of right from the 10/30/08 and 12/4/08 Supreme Court orders; App. Div. (No. 2009-03661) (1) denied plaintiff's motion for leave to appeal from a 1/22/09 Supreme Court, Kings County, order and (2) dismissed plaintiff's appeal from so much of the 1/22/09 Supreme Court order as denied her request for reimbursement of costs in the sum of $5,300 from her former attorney; App. Div. (No. 2009-04744), as relevant here, (1) denied appellant's motion for leave to appeal from a 1/22/09 Supreme Court, Kings County, order upon the ground that the order is appealable as a right, and (2) affirmed the 1/22/09 Supreme Court order, which denied plaintiff's motion for leave to amend the complaint to add defendants.

NEGRON (JULIO), PEOPLE v (112 AD3d 741):
2nd Dept. App. Div. order of 12/11/13; affirmance; leave to appeal granted by Smith, J., 8/20/14; CRIMES - RIGHT TO COUNSEL - EFFECTIVE REPRESENTATION - WHETHER DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT TO THE TRIAL COURT'S IMPROPER USE OF THE "CLEAR LINK" STANDARD FOR THE INTRODUCTION OF THIRD-PARTY CULPABILITY EVIDENCE, AMONG OTHER FAILURES; CRIMES - DISCLOSURE - FAILURE TO DISCLOSE EXCULPATORY MATERIAL - WHETHER THE PEOPLE COMMITTED PREJUDICIAL BRADY VIOLATIONS BY FAILING TO DISCLOSE THAT DEFENDANT'S NEIGHBOR FLED WITH A CACHE OF WEAPONS THE NIGHT OF THE SHOOTING, WHICH INCLUDED THE SAME CALIBER OF AMMUNITION USED IN THE SHOOTING; Supreme Court, Queens County, denied, without a hearing, defendant's motion pursuant to CPL 440.10 to vacate a 4/26/06 judgment of the same court convicting defendant, upon a jury verdict, of attempted murder in the second degree, assault in the first degree, reckless endangerment in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, and imposing sentence; App. Div. affirmed.

SMALL (SAMUEL), PEOPLE v (112 AD3d 857):
2nd Dept. App. Div. order of 12/18/13; affirmance; leave to appeal granted by Smith, J., 8/8/14; GRAND JURY - RIGHT TO APPEAR BEFORE GRAND JURY - DEFENDANT IN CUSTODY FOR ONE BURGLARY WHEN FELONY COMPLAINT ISSUED CHARGING HIM WITH ANOTHER BURGLARY WAS NOT ARRESTED OR ARRAIGNED ON THE SECOND CHARGE - WHETHER DEFENDANT WAS ENTITLED TO NOTICE THAT THE SECOND CHARGE WOULD BE PRESENTED TO THE GRAND JURY; SECOND VIOLENT FELONY OFFENDER STATUS - TOLLING OF TIME TO EXTEND 10-YEAR LIMITATION ON PRIOR FELONIES (PENAL LAW § 70.04[1]) WHERE DEFENDANT WAS GRANTED HABEAS CORPUS RELIEF FROM INCARCERATION FOR PRIOR PAROLE VIOLATION; Supreme Court, Kings County, convicted defendant, upon a jury verdict, of two counts of burglary in the second degree, and imposed sentence; App. Div. affirmed.