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For September 23, 2022 through September 29, 2022, the following
preliminary appeal statements were filed:
CABRERA (RAMON), PEOPLE v (206 AD3d 479):
1st Dept. App. Div. order of 6/14/22; affirmance; leave to appeal granted by
Rivera, J., 9/8/22; Crimes--Confession--Whether defendant was in custody for
purposes of Miranda v Arizona (384 US 436 [1966]) where he was handcuffed during
traffic stop; Crimes--Possession of a Weapon--Whether Penal Law § 265.03(3),
which criminalizes the possession of a firearm in public places, is unconstitutional
under the holding in New York State Rifle & Pistol Assoc. v Bruen (597 US —, 142 S
Ct 2111 [2022]); whether defendant's sentence is unconstitutional under Bruen
because Penal Law § 265.03 (3) distinguishes between public possession and
possession in the home; Supreme Court, Bronx County, convicted defendant of criminal
possession of a weapon in the second degree and imposed sentence; App. Div. affirmed.
COTTO (ALBERT), PEOPLE v (203 AD3d 492):
1st Dept. App. Div. order of 3/10/22; affirmance; leave to appeal granted by the
Court of Appeals, 9/13/22; Crimes--Sex Offenders--Whether the SORA hearing court
abused its discretion or otherwise erred as a matter of law when it denied
defendant's request for an adjournment of the SORA hearing pending the outcome
of an evaluation by a case review team under Mental Hygiene Law (MHL) § 10.05
(e) as to whether he is a sex offender requiring civil management pursuant to MHL
article 10; Supreme Court, Bronx County, adjudicated defendant a level three sexually
violent predicate sex offender und the Sex Offender Registration Act; App. Div. affirmed.
MATTER OF EISENHAUER v WATERTOWN CSD (208 AD3d 952;
208 AD3d 956):
4th Dept. App. Div. orders of 8/4/22; modification; dismissal; sua sponte
examination of whether a substantial constitution question is directly involved to support
an appeal as of right; Taxation--Real Property Tax--Whether Proposition 1, which
imposed a new tax on real property within the Watertown City School District for
the purpose of raising money annually for the Roswell P. Flower Memorial Library,
a public library within the borders of the City of Watertown, is invalid and was
improperly enacted in violation of the Library's authorizing legislation, the
Education Law, article IX of the New York Constitution, and the due process and
equal protection clauses of the United States Constitution; Supreme Court, Jefferson
County, in a proceeding pursuant to CPLR article 78 and declaratory judgment action,
among other things, dismissed the "[a]article 78 challenge."; App. Div. dismissed appeal
from judgment; Supreme Court, Jefferson County, issued an amended judgment that,
among other things, dismissed the "[a]article 78 challenge."; App. Div. modified amended
judgment by granting judgment in favor of respondents-defendants Watertown City
School District, Watertown City School District Board of Education, and Roswell P.
Flower Memorial Library on the second cause of action to declare that Proposition 1 is
not null and void, and as so modified, affirmed the amended judgment.
KILPATRICK v CUOMO (2022 NY Slip Op 70265[U]):
1st Dept. App. Div. order of 8/23/22; denial of motion; sua sponte examination of
whether the order appealed from finally determines the action within the meaning of the
Constitution and whether any jurisdictional basis exists for an appeal as of right; Appeal-
-Denial of motion to vacate; App. Div. denied a motion to vacate the dismissal of an
appeal from an order of Supreme Court entered on or about March 6, 2020.
KILPATRICK v HOCHUL (2022 NY Slip Op 69405[U]):
1st Dept. App. Div. order of 8/2/22; denial of motion; sua sponte examination of
whether the order appealed from finally determines the action within the meaning of the
Constitution and whether any jurisdictional basis exists for an appeal as of right; Appeal-
-Denial of motion to vacate; App. Div. denied a motion to vacate the dismissal of an
appeal from an order of Supreme Court, New York County, entered on or about May 16,
2022.
PEOPLE v KRULL (VADIMIR) (208 AD3d 163):
1st Dept. App. Div. order of 8/2/22; modification; sua sponte examination of
whether a substantial constitutional question is directly involved to support an appeal as
of right; Crimes--Sex Offender--Whether, when determining defendant's risk level
under SORA, Supreme Court erred in assessing defendant 10 points under risk
factor 12 for his refusal to accept responsibility for his criminal conduct when
defendant invoked his Fifth Amendment right against self-incrimination and was
tried and convicted but had a direct appeal pending; Supreme Court, Bronx County,
adjudicated defendant a level two sex offender under the Sex Offender Registration Act;
App. Div. modified to the extent of reducing the adjudication to that of a level one
offender, and, as so modified, affirmed.
MATTER OF NEMETH v K-TOOLING (205 AD3d 1093):
3rd Dept. App. Div. order of 5/5/22; affirmance; leave to appeal granted by the
Court of Appeals, 9/15/22; Limitation of Actions--Whether third prong of relation
back doctrine applied to permit petitioners to add landowner as necessary party in
amended petition filed after expiration of limitations period; petitioners knew
identity of landowner, who was named as a respondent in a prior related
proceeding; whether dismissal of claims against remaining respondents was
warranted based on failure to name a necessary party; Supreme Court, Delaware
County, granted respondents' cross motion to dismiss the CPLR article 78 petition; App.
Div., with one Justice dissenting, affirmed.
PEOPLE ex rel. RANKIN v BRANN (201 AD3d 675):
2nd Dept. App. Div. order of 1/11/22; leave to appeal granted by the Court of
Appeals, 9/13/22; Habeas Corpus--When Remedy Available--Whether criminal
defendant who was released on bail and subsequently arrested for new violent
felonies while on bail was entitled to evidentiary hearing under CPL 530.60 (2)(c)
before the court could revoke bail and remand defendant to custody; App. Div.
sustained the writ to the extent of remitting the matter to Supreme Court to conduct an
evidentiary hearing pursuant to CPL 530.60(2)(c) and otherwise dismissed the writ.
PEOPLE v RIVERA (STORM) (206 AD3d 1356):
3rd Dept. App. Div. order of 6/23/22; leave to appeal granted by J. Aarons, 9/1/22;
Rule 500.11 review pending; Crimes--Jurors--Whether juror, who failed to disclose
during jury selection that she was a victim of sexual abuse and who had an outburst
during deliberations in rape prosecution, was grossly unqualified to serve; whether
County Court failed to conduct probing and tactful inquiry of juror; Crimes--Right
to Counsel--Effective Representation--Whether defendant received the effective
assistance of counsel; Crimes--Confession--Whether defendant's statement to police
should have been suppressed on the ground that he had been denied his right to
counsel; County Court, St. Lawrence County, convicted defendant of rape in the first
degree and unlawful imprisonment in the second degree; App. Div., with one Justice
dissenting, affirmed.
ZELIG v SNY DIV. OF HOUSING & COMMUNITY RENEWAL (189 AD3d 657):
1st Dept. App. Div. order of 12/20/20; reversal; denial; sua sponte examination of
whether an appeal lies from an order from which an appeal has already been taken and
dismissed; Landlord and Tenant--Rent Regulation--Whether Supreme Court erred
in denying remission to the Division of Housing and Community Renewal for
further fact finding and a new determination on the petition to deregulate the
subject apartment; initial review of deregulation petition based on erroneous
information; Supreme Court, New York County, denied petition to annul a determination
of respondent DHCR that deregulated petitioner's apartment, and dismissed the
proceeding; Supreme Court, New York County, denied petitioner's motions for leave to
renew; App. Div., with two Justices dissenting, reversed judgment and remitted matter to
Supreme Court with instructions to remand to DHCR for further proceedings in
accordance with court's opinion, and dismissed appeal from 11/25/19 order as academic.