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For August 24, 2018 through August 30, 2018 the following preliminary appeal statements were filed:

ACCOUNTING BY EUGENE (SCHUMACHER v EUGENE) (160 AD3d 506):
1st Dept. App. Div. order of 4/12/18; affirmance; sua sponte examination of 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; Receivers--Appointment--Whether Surrogate's Court improvidently exercised its discretion in appointing temporary receiver in accounting proceeding; alleged due process violation; Surrogate's Court, Bronx County, inter alia, granted potential will objectants' motion to appoint a temporary receiver; App. Div. affirmed.

ROUSE (CLARENCE), PEOPLE v (2018 NY Slip Op 01868):
1st Dept. App. Div. order of 3/20/18; affirmance; leave to appeal granted by Rivera, J., 8/6/18; Crimes--Witnesses--Whether trial court's restriction of cross-examination of a police witness concerning prior bad acts deprived defendant of his right to confrontation; whether the trial judge's denigration of defense counsel in front of the jury deprived defendant of a fair trial; whether trial court properly excluded evidence including 911 recordings; whether the verdict was based on legally sufficient evidence; Supreme Court, Bronx County, convicted defendant, after jury trial, of attempted murder in the second degree, criminal use of a firearm in the first degree and two counts of criminal possession of a weapon in the second degree, and sentenced him, as a second violent felony offender, to an aggregate term of 18 years; App. Div. affirmed.

WILLIAMS (CADMAN), PEOPLE v (158 AD3d 471):
1st Dept. App. Div. order of 2/8/18; affirmance; leave to appeal granted by Rivera, J., 8/16/18; Crimes--Evidence--Whether trial court abused its discretion in failing to hold a Frye hearing regarding admission of Low Copy Number Typing and the Forensic Statistical Tool used by the Office of the Chief Medical Examiner; Crimes-- Right to Counsel--Effective Representation--whether counsel was ineffective for failing to challenge court's justification instruction; Crimes--Evidence--whether recordings of defendant's phone calls, made while defendant was in pretrial detention, were admissible; Supreme Court, Bronx County, convicted defendant of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentenced defendant to an aggregate term of 20 years; App. Div. affirmed.

For August 31, 2018 through September 6, 2018 the following preliminary appeal statements were filed:

ELLIS (ARTHUR W., JR.), PEOPLE v (162 AD3d 161):
3rd Dept. App. Div. order of 5/31/18; reversal; leave to appeal granted by Feinman, J., 8/17/18; Crimes--Sex Offenders--Sex Offender Registration Act (SORA)--Whether Corrections Law § 168 requires a registered sex offender to register his Facebook account with the Division of Criminal Justice Services as an internet identifier; County Court, Essex County, convicted defendant, upon his guilty plea, of the crime of failure to register or verify as a sex offender; App. Div. reversed, granted defendant's motion, among other things, to dismiss the indictment, and dismissed the indictment.

FOSTER-BEY (ELIJAH), PEOPLE v (158 AD3d 641):
2nd Dept. App. Div. order of 2/7/18; affirmance; leave to appeal granted by Wilson, J., 8/23/18; Crimes--Evidence--Whether trial court providently exercised its discretion in failing to hold a Frye hearing regarding admission of Low Copy Number DNA testing and the Forensic Statistical Tool used by the Office of the Chief Medical Examiner; whether admission of DNA evidence violated defendant's right to confront witnesses against him; instructions--whether trial court's Allen charge was coercive; Supreme Court, Kings County, convicted defendant of assault in the first degree and criminal possession of a weapon in the second degree, and imposed sentence; App. Div. affirmed.

McINTOSH (JAMES R.), PEOPLE v (162 AD3d 1612):
4th Dept. App. Div. order of 6/15/18; modification with dissents; leave to appeal granted by Lindley, J., 8/15/18; Crimes--Lesser Included Offense--Whether County Court's error in failing to charge jury on lesser included offenses was harmless; defendant requested to charge manslaughter in the second degree and criminally negligent homicide as lesser included offenses of murder in the second degree and manslaughter in the first degree; application of People v Boettcher (69 NY2d 174 [1987]); County Court, Monroe County, convicted defendant of murder in the second degree and manslaughter in the first degree; App. Div. modified by reversing that part of the judgment convicting defendant of manslaughter in the first degree and dismissing count two of the indictment, and, as so modified, affirmed.

RAMLALL (GANESH), PEOPLE v (59 Misc 3d 134(A)):
App. Term, 2nd Dept., 2nd, 11th and 13th Judicial Districts order of 4/6/18; affirmance; leave to appeal granted by Rivera, J., 8/2/18; Crimes--Right to Speedy Trial--Whether a CPL 30.30 dismissal on statutory speedy trial grounds of a misdemeanor charge of driving while intoxicated (Vehicle and Traffic Law § 1192[3]) affects the CPL 30.20 speedy trial analysis of the delays related to the traffic infraction charge of "driving while ability impaired" (Vehicle and Traffic Law § 1192[1]) based on the same underlying conduct; Criminal Court of the City of New York, Kings County, convicted defendant, upon his guilty plea, of driving while ability impaired, and imposed sentence; Criminal Court of the City of New York then vacated the fine that had been imposed and resentenced defendant to, among other things, a term of imprisonment; App. Term affirmed the judgment of conviction and dismissed the appeal from the amended sentence as abandoned.

TSINTZELIS (GEORGE), PEOPLE v (153 AD3d 558):
2nd Dept. App. Div. order of 8/2/17; affirmance; leave to appeal granted by Feinman, J., 7/30/18; Crimes--Evidence--DNA Identification Tests--Whether the trial court erred in denying defendant's discovery request pursuant to CPL 240.20(1)(c) for the electronic raw data used to develop his DNA profile; whether the admission of DNA lab reports through the testimony of an analyst who didn't perform or supervise the DNA testing violated defendant's confrontation rights; Supreme Court, Queens County, convicted defendant, upon a jury verdict, of criminal mischief in the third degree and petit larceny, and imposed sentence; App. Div. affirmed.

For September 7, 2018 through September 13, 2018 the following preliminary appeal statements were filed:

BOHLEN, MATTER OF v DiNAPOLI (— AD3d —, 2018 NY Slip Op 05720):
3rd Dept. App. Div. order of 8/9/18; annulled determination; sua sponte examination of whether the order appealed from finally determines the proceeding within the meaning of the Constitution; Civil Service--Retirement and Pension Benefits-- Whether New York State Retirement System properly excluded longevity allowance payments from petitioners' final average salaries in calculating retirement benefits; application of Retirement and Social Security Law § 431; App. Div. annulled the determination, granted the CPLR article 8 petition, and remitted the matter to respondents for further proceedings.

SMITH (SAMUEL J.), PEOPLE v (162 AD3d 1686):
4th Dept. App. Div. order of 6/29/18; affirmance with dissents; leave to appeal granted by Carni, J., 8/17/18; Crimes--Instructions--Missing witness charge--whether the proponent of a missing witness charge has the initial burden of proving that the missing witness has noncumulative testimony to offer on behalf of the opposing party--only other witness identifying defendant as shooter was the victim; right to counsel--claimed ineffective representation; Supreme Court, Monroe County, convicted defendant, upon a jury verdict, of attempted murder in the second degree, assault in the first degree and criminal use of a firearm in the first degree, and imposed sentence; App. Div. affirmed.

For September 14, 2018 through September 20, 2018 the following preliminary appeal statements were filed:

FRANKLIN STREET REALTY CORP., MATTER OF v NEW YORK CITY ENVIRONMENTAL CONTROL BOARD (164 AD3d 19):
1st Dept. App. Div. order of 7/19/18; confirmed determinations of 5/28/15 and 10/29/15; Municipal Corporations--Regulation of Billboards--Challenge to determinations of the New York City Environmental Control Board (ECB) which found that petitioners engaged in unauthorized outdoor advertising--buildings displaying signs promoting the law offices of the attorney shareholder of the corporate building owners--whether the ECB's determinations are arbitrary and capricious or contrary to the plain language of the applicable sections of the City Administrative Code; App. Div. confirmed 5/28/15 and 10/29/15 determinations of respondent New York City Environmental Control Board, denied the petitions and dismissed the proceedings transferred from Supreme Court, New York County.

HENRY v HAMILTON EQUITIES, INC. (161 AD3d 418):
1st Dept. App. Div. order of 5/1/18; affirmance; leave to appeal granted by Court of Appeals, 9/6/18; Negligence--Maintenance of Premises--Liability of out-of-possession landlords for condition of nursing home premises where plaintiff nurse was injured in a slip and fall incident--whether exception to out-of-possession landlord rule set forth in Putnam v Stout (38 NY2d 607 [1976]) applies where the owner has a duty to repair under its contract with and regulations promulgated by HUD; Supreme Court, Bronx County, among other things, granted the motion of defendants Hamilton Equities, Inc., Hamilton Equities Company, and Suzan Chait- Grandt, as administrator of the estate of Joel Chait, for summary judgment dismissing the complaint and all cross claims as against them; App. Div affirmed.

PEOPLE ex rel. ORTIZ v BRESLIN:
Supreme Court, Queens County judgment of 9/5/18; denial of application; sua sponte examination of whether an appeal as of right lies pursuant to CPLR 5601(b)(2); Habeas Corpus--When Remedy Available--Whether Correction Law § 73(10), which allows for petitioner's continued detention at a correctional facility beyond petitioner's maximum expiration date based on petitioner's inability to find housing compliant with Executive Law § 259-c(14), is unconstitutional; whether habeas corpus relief is available to challenge petitioner's continued detention; Supreme Court denied the application for a writ of habeas corpus.

RIVERA v STATE OF NEW YORK (162 AD3d 1571):
4th Dept. App. Div. orders of 6/8/18; affirmance; leave to appeal granted by Court of Appeals, 9/6/18; Employment Relations--Respondent Superior--Vicarious Liability--Whether the Court of Claims properly concluded that the State was not vicariously liable for the actions of a corrections officer; whether corrections officer, who assaulted inmate, was acting outside the scope of officer's employment; Pleading--Answer--whether the Court of Claims abused its discretion in allowing State to amend its answer to include affirmative defense; Court of Claims (2/19/16 order), among other things, granted the motion of defendant for leave to amend its answer; and thereafter, (9/14/17 order) denied the motion of claimant for summary judgment, granted the cross motion of defendant for summary judgment, and dismissed the claim.