Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Miranda Slone Sklarin Verveniotis LLP, Elmsford (Debora J. Dillon of counsel), for Adfia Realty, LLC, respondent.

Koster, Brandy & Nagler, LLP, New York (William H. Gagas of counsel), for Hire Point Staffing Solutions, respondent.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about January 10, 2018, which, insofar as appealed from, granted defendant Hire Point Staffing Solutions's motion to strike the errata sheet to plaintiff's deposition transcript as to correction numbers 2, 3, 4, 5, 13, 14, 15, 17, 18, 28, and 30, as identified in the letter of Jason J. Lavery dated April 18, 2017 and annexed to the motion papers as Exhibit J, unanimously modified, on the law and the facts, to deny the motion as to correction numbers 2, 4, 13, 28 and 30, and otherwise affirmed, without costs.

This action for personal injuries arose when plaintiff allegedly slipped and fell on a sidewalk in front of and/or adjacent to a property located at 258 East 138th Street. At the time of the accident, the property was managed by codefendant Sobro Realty, owned and operated by defendant Adfia Realty LLC, and leased by defendant Hire Point Staffing Solutions (Hire Point).

Supreme Court providently exercised its discretion in striking correction numbers: 3, 5, 14, 15, 17, and 18, because plaintiff failed to provide an adequate reason for the critical, substantive changes she sought to make, which would materially alter her deposition testimony on issues concerning the basis for Hire Point's negligence as alleged in the pleadings (see Perez v Mekulovic, 13 AD3d 158, 158-159 [1st Dept 2004]; Schachat v Bell Atl. Corp., 282 AD2d 329 [1st Dept 2001]).

However, we modify the order to deny Hire Point's motion to strike correction numbers 2, 4, 13, 28 and 30, because those changes are not critical, substantive changes that materially alter plaintiff's original deposition testimony on issues concerning the basis for Hire Point's alleged negligence (see Carrero v New York City Hous. Auth., 162 AD3d 566, 566 [1st Dept 2018]). Lastly, we find that plaintiff has provided satisfactory explanations as to those corrections, which raise issues of credibility that should be left for trial (see Cillo v Resjefal Corp., 295 AD2d 257 [1st Dept 2002]). Concur—Sweeny, J.P., Manzanet-Daniels, Kern, Oing, Singh, JJ.

People v Herrera

171 AD3d ?

People v Herrera (Joel)

171 AD3d ?

Herrera (Joel), People v

171 AD3d ?

2019 NY Slip Op 02631

People v Herrera171 AD3d ?

People v Herrera (Joel)

[—– NYS3d —–]

[*2]

The People of the State of New York, Respondent, v Joel Herrera, Appellant. Justine M. Luongo, The Legal Aid Society, New York (Ronald Alfano of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Eric Del Pozo of counsel), for respondent. HEADNOTES Crimes Double Jeopardy Conspiracy to Commit Murder Different Offense Than Murder, Manslaughter or Gang Assault Crimes Plea of Guilty Sufficiency of Allocution Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered November 4, 2015, convicting defendant, upon his plea of guilty, of conspiracy in the second degree, and sentencing him to a term of two to six years, unanimously affirmed. Defendant's prosecution for conspiracy to commit murder, after a prior prosecution for the actual murder resulted in a trial conviction for manslaughter and gang assault, did not violate the federal or state double jeopardy prohibitions, because conspiracy is not the same offense, for double jeopardy purposes, as murder, manslaughter, or gang assault (see People v Biggs, 1 NY3d 225, 230 [2003]). "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a[n] [additional] fact which the other does not" (Blockburger v United States, 284 US 299, 304 [1932] [citations omitted]). Neither the fact that the evidence at the homicide trial would have also supported a conspiracy charge, nor the fact that defendant had been alleged to have acted in concert with other persons, has any relevance under the Blockburger test. Defendant's plea allocution was sufficient and his plea was valid. The Court of Appeals has "never held that a plea is effective only if a defendant acknowledges committing every element of the pleaded-to offense, or provides a factual exposition for each element of the pleaded-to offense" (People v Seeber, 4 NY3d 780, 781 [2005] [citation omitted]; see also People v Goldstein, 12 NY3d 295, 301 [2009]). Defendant pleaded guilty knowingly, intelligently and voluntarily, in return for a sentence that, we note, was structured so that he would receive no additional incarceration beyond the 20 years he received for the homicide. Concur—Friedman, J.P., Gische, Kapnick, Webber, Gesmer, JJ.